Court File and Parties
CITATION: A.A. v. D.S., 2022 ONSC 1389 Court File No.: 19-1317-000 Date: 2022-01-14
SUPERIOR COURT OF JUSTICE FAMILY COURT
B E T W E E N: A. A., Applicant — and - D. S., Respondent
E X C E R P T O F P R O C E E D I N G S BEFORE THE HONOURABLE JUSTICE D. CHAPPEL on JANUARY 14, 2022, at HAMILTON, Ontario
Transcript Information
[sic] Indicates preceding word has been reproduced verbatim and is not a transcription error. (ph) Indicates preceding word has been spelled phonetically.
Transcript Ordered: Feb 02 2022 Transcript Completed: Mar 02 2022 Ordering Party Notified: Mar 02 2022
Reasons for Judgment
CHAPPEL, J. (Orally):
In this motion, the Applicant A.A., (“the Applicant”), seeks an order pursuant to section 30 of the Children’s Law Reform Act appointing either Dr. Susan Walker-Kennedy or Ms. Susan Lieberman to assess and report to the court on the needs of the child of the parties’ relationship, J.M.S., born in 2015, and the ability and the willingness of the parties to satisfy the child’s needs. I will refer to the child as J.S. in these Reasons. The Respondent opposes the relief requested and asks that the motion be dismissed. For the reasons that follow, upon carefully considering all relevant factors and principles and the evidence in this case, I have concluded that it is not appropriate to order the assessment requested by the Applicant, and I am therefore dismissing the motion.
Background
A review of the background of the family history and the course of these proceedings is important in providing a general context to my Reasons in this matter.
The parties began cohabiting in March 2011. They were never married, and J.S. is the only child of their relationship. They separated on August 15th, 2019. Around the time of the separation, the Children’s Aid Society of Hamilton and Hamilton Police Service were involved due to domestic conflict between the parties. The Respondent was charged with assault against the Applicant, but that charge was later withdrawn and the Respondent entered into a peace bond. The Applicant commenced this application shortly after the separation and brought an urgent motion seeking to address parenting time issues. On September 27, 2019, in the context of that motion, McLaren, J. made a temporary order providing that the parties were to share parenting time with J.S. on a weekabout basis. This is the parenting arrangement that remains in effect to date.
Unfortunately, there have been numerous court proceedings since September of 2019 to address various issues. In addition, the Children’s Aid Society of Hamilton, which I will refer to as “the Society,” and the Hamilton Police have also been involved with the family on several occasions since that time. In May 2020, the Society carried out an investigation after the Applicant reported concerns about J.S’s sexualized behaviours after being in the Respondent’s care, and concerns that the Respondent was either engaging in inappropriate behaviour with the child or exposing her to sexually inappropriate activities, programming, or materials. At the end of the investigation, the Society did not verify any concerns of sexual abuse of J.S., or of her being exposed to sexually inappropriate activities, materials, or content. However, the Society had ongoing concerns regarding the parties’ high conflict relationship and the negative impact of this conflict on J.S’s emotional well-being. The weekabout parenting arrangement set out in the September 27, 2019 order resumed after this investigation and continued until May 26, 2021. During that period of time, there was ongoing conflict around the issues of schooling for J.S., commencing in September 2021, and whether the child should be vaccinated for COVID-19.
In the spring of 2021, the Applicant contacted the Society again to report concerns about J.S.’s sexualized behaviour after being in the care of the Respondent. She withheld J.S. from the care of the Respondent at that time while the Society carried out a third investigation. The Hamilton Police Service, Child Abuse Branch, became involved to investigate the new concerns that the Applicant reported. No criminal charges were laid, and once again, the Society did not verify any concerns regarding sexually inappropriate conduct by the Respondent towards J.S., or any risk of sexual abuse or exposure to sexually inappropriate materials or programming while in the Respondent’s care. However, the Society again highlighted concerns about ongoing parental conflict and the detrimental effects of this conflict on J.S. Upon the completion of the Society and police investigation, the Respondent attended at the Applicant’s home to retrieve J.S. and reinstate the court ordered shared parenting arrangement. The Applicant alleges that at that time, the Respondent assaulted her. She made a complaint of assault to the Hamilton Police Service, and this resulted in the Respondent being charged once again with assault in May 2021. This charge remains outstanding.
In June 2021, the Respondent brought a motion to reinstate the 50/50 parenting time ordered by McLaren, J. on September 27, 2019, as the Applicant was not complying with that order. I made an order in the context of that motion on July 2, 2021 requiring the parties to comply with the terms of the September 27, 2019 order and requiring that the paternal grandmother, J.S., or another third party to carry out parenting exchanges on behalf of the Respondent. I also directed that the parties were to engage the services of Ms. Rebecca Wolfe for counselling for J.S., and they were also to access counselling for themselves to gain an understanding of the child’s needs and sexualized behaviours, and to assist in managing them appropriately. Unfortunately, the parties continued to have great difficulty in working cooperatively through parenting issues after the motion in July of 2021. They were unable to resolve the issue of where J.S. would attend school commencing in September 2021, and the Respondent brought a motion to address this issue in August 2021, to which the Applicant responded with a cross-motion.
On September 3, 2021, I made an order determining that J.S. would attend Bennetto Public School, in Hamilton.
The parenting issues in this case, unfortunately, remain outstanding. As I understand it, if this matter proceeds to trial, the presiding judge will be called upon to decide upon the decision-making responsibility regime and the parenting time arrangement that is in J.S.’s best interests. The Applicant is seeking an order that she have sole decision-making responsibility and primary residence respecting J.S. The Respondent seeks an order for joint decision-making responsibility and equal parenting time.
Positions of the Parties
The Applicant
I turn to the positions of the parties. The Applicant’s position is that an assessment would be of great assistance to the court in determining the parenting issues that must be decided in this proceeding, which was commenced in the fall of 2019.
The Applicant relied on the case of Glick v. Cale, 2013 CarswellOnt 1409 (S.C.J.), and highlighted the following points which she felt supported her request:
First, she states that there is a history of the parties being unable to cooperate in relation to philosophies and strategies in relation to J.S. She claims that the parties agreed in principle to certain approaches when J.S. was young, but that the Respondent has been unable and unwilling to abide by those approaches over the years.
Second, the Applicant raised concerns about the Respondent’s parenting of J.S. and his interactions with her. These include concerns that he has lacked an appreciation of J.S.’s developmental stages and capabilities, that he has often lacked empathy towards J.S., that he has at times been emotionally harsh with her, and that he has been unable to appreciate her special needs and work on appropriate solutions for those needs.
In regard to the latter concern, she highlighted in particular the fact that J.S. has a history of engaging in sexualized behaviours and submitted that the Respondent has downplayed this issue and failed to appropriately manage the behaviours while J.S. has been in his care.
Third, the Applicant alleges that there is a history of inappropriate conduct by the Respondent towards her, including assaults and unfounded accusations about her parenting of J.S. She complains, as well, that the Respondent refuses to engage in respectful and responsive communication with her about J.S., which makes it very difficult to implement the current 50/50 parenting time arrangement. She also claims that the Respondent deliberately sabotages efforts to co-parent J.S. by engaging in tactics such as failing to advise her of her appointments, cancelling appointments that she has made for J.S., and failing to take J.S. to counselling appointments with Ms. Wolfe.
Next, the Applicant submits that the Respondent suffered a traumatic brain injury in 2015 and raises concerns that this injury may impact on his parenting capacity and his ability to regulate his emotions and behaviour.
During the hearing of the motion, Mr. Macri for the Applicant submitted that all of these concerns raised several distinct clinical issues with respect to which the court requires assistance from a qualified parenting assessor.
First, he highlighted the fact that the child J.S. has significant sexualized behaviours, and submitted that this raised clinical issues about the possible causes of these behaviours, how they should be appropriately managed, and whether the parties are able to address the concerns appropriately.
Second, he noted that the Respondent’s history of a traumatic brain injury raises challenging issues of a clinical nature regarding the possible impact of that injury on his ability to regulate his emotions, his overall functioning, and his ability to meet J.S.’s needs.
Third, he stressed the Applicant’s history of allegations of family violence by the Respondent towards her. He argued that these allegations, if accepted by the court, raise clinical questions that the assessor could assist with about how family violence impacted the Applicant and the child, and the implications of the alleged violence on the long-term best interests of J.S.
Finally, Mr. Macri stated that the Respondent has made allegations that the Applicant tends to pathologize the child by overexaggerating the nature and extent of problems that she experiences. He submitted that these allegations, if true, would also raise clinical questions about the impact of such behaviour on the Applicant’s parenting and the well-being of the child. Alternatively, if they are not true, this would raise issues of a complex nature regarding the Respondent’s ability to fully comprehend the child’s challenges and issues, to formulate appropriate plans, and to implement strategies to resolve the issues.
Finally, the Applicant argues that a parenting assessment is in the best interests of the child as it would help the parties to identify some of the causes of the overall parenting difficulties, and would assist the parties and the court to identify solutions that would ultimately support J.S. and her relationship with the parties.
The Respondent
The Respondent opposes the request for a section 30 parenting assessment. He emphasizes that the many concerns about him and his parenting that the Applicant raises in her materials have been thoroughly investigated by the Society, the police, and various other community professionals and have not been substantiated. He notes that numerous professionals have assessed J.S., and that they have not shared the Applicant’s concerns regarding the extent of J.S.’s difficulties and special needs. He also notes that the child’s first school report from her new school indicates that she is doing very well in school and has not exhibited any concerning behaviours or other difficulties.
He submits that the Applicant is overexaggerating the extent of the parties’ current parenting conflicts, and that he is willing to continue to work on cooperating with her to promote J.S.’s best interests.
Finally, he notes that while the Applicant is willing to pay the initial outlay for the costs of the proposed assessment, she wishes to leave open the possibility of seeking reimbursement from him in the future. He indicates that neither of the parties are working, and that he has been on long-term disability since 2015. As such, he states that he would simply not have the means to contribute to the cost of the assessment.
The Law
Turning to the law, the starting point for the analysis on this motion is section 30 of the Children’s Law Reform Act, which provides:
Assessment of needs of child
[30] (1) The court before which an application is brought for a parenting order or contact order with respect to a child, by order, may appoint a person who has technical or professional skill to assess and report to the court on the needs of the child and the ability and willingness of the parties or any of them to satisfy the needs of the child. R.S.O. 1990, c. C.12, s. 30(1); 2020, c. 25, Sched. 1, s. 8 (1).
When order may be made
(2) An order may be made under subsection (1) on or before the hearing of the application and with or without a request by a party to the application. R.S.O. 1990, c. C.12, s. 30(2); 2020, c. 25, Sched. 1, s. 8 (2).
Agreement by parties
(3) The court shall, if possible, appoint a person agreed upon by the parties, but if the parties do not agree the court shall choose and appoint the person. R.S.O. 1990, c. C.12, s. 30 (3).
Consent to act
(4) The court shall not appoint a person under subsection (1) unless the person has consented to make the assessment and to report to the court within the period of time specified by the court. R.S.O. 1990, c. C.12, s. 30 (4).
Attendance for assessment
(5) In an order under subsection (1), the court may require the parties, the child and any other person who has been given notice of the proposed order, or any of them, to attend for assessment by the person appointed by the order. R.S.O. 1990, c. C.12, s. 30 (5).
Refusal to attend
(6) Where a person ordered under this section to attend for assessment refuses to attend or to undergo the assessment, the court may draw such inferences in respect of the ability and willingness of any person to satisfy the needs of the child as the court considers appropriate. R.S.O. 1990, c. C.12, s. 30 (6).
Report
(7) The person appointed under subsection (1) shall file his or her report with the clerk of the court. R.S.O. 1990, c. C.12, s. 30 (7); 2009, c. 11, s. 13 (1).
Copies of report
(8) The clerk of the court shall give a copy of the report to each of the parties and to counsel, if any, representing the child. R.S.O. 1990, c. C.12, s. 30 (8); 2009, c. 11, s. 13 (2).
Admissibility of report
(9) The report mentioned in subsection (7) is admissible in evidence in the application. R.S.O. 1990, c. C.12, s. 30 (9).
Assessor may be witness
(10) Any of the parties, and counsel, if any, representing the child, may require the person appointed under subsection (1) to attend as a witness at the hearing of the application. R.S.O. 1990, c. C.12, s. 30 (10).
Directions
(11) Upon motion, the court by order may give such directions in respect of the assessment as the court considers appropriate. R.S.O. 1990, c. C.12, s. 30 (11).
Fees and expenses
(12) The court shall require the parties to pay the fees and expenses of the person appointed under subsection (1). R.S.O. 1990, c. C.12, s. 30 (12).
Idem, proportions or amounts
(13) The court shall specify in the order the proportions or amounts of the fees and expenses that the court requires each party to pay. R.S.O. 1990, c. C.12, s. 30 (13).
Idem, serious financial hardship
(14) The court may relieve a party from responsibility for payment of any of the fees and expenses of the person appointed under subsection (1) where the court is satisfied that payment would cause serious financial hardship to the party. R.S.O. 1990, c. C.12, s. 30 (14).
Other expert evidence
(15) The appointment of a person under subsection (1) does not prevent the parties or counsel representing the child from submitting other expert evidence as to the needs of the child and the ability and willingness of the parties or any of them to satisfy the needs of the child. R.S.O. 1990, c. C.12, s. 30 (15).
The determination of whether to order an assessment pursuant to section 30 of the Children’s Law Reform Act is a highly discretionary one that requires the court to carefully consider all of the circumstances of the parties, their parenting, their overall functioning and well-being and the particular needs of the child before the court. Ultimately, the question to be determined by the court in a motion for a section 30 order is whether the court requires additional assistance from a qualified professional to determine the needs of the child before the court and the ability and willingness of the parties to satisfy those needs.
The caselaw outlines numerous factors that may be relevant in guiding the court’s discretion in deciding this basic question, but ultimately, the decision must turn on the unique facts of every case.
As I have indicated, the Applicant relies on the case of Glick v. Cale, 2013 CarswellOnt 1409 (S.C.J.) as setting out the relevant factors and considerations, and that case does indeed provide valuable guidance. In addition to that case, I have considered the decisions in Baillie v Middleton, 2012 ONSC 3728 (S.C.J.); Hutchison v. Peever, 2021 ONSC 4586 (S.C.J.); Joseph v. Molnar, 2021 ONSC 4432 (S.C.J.); McDonald v. McMullen, 2021 ONSC 1001 (S.C.J), and Ross v. D’Oliveira, 2020 ONSC 7747 (S.C.J.). In addition, I note that a reading of section 30 as a whole reflects that the section contemplates that the information provided by an assessor will essentially amount to expert opinion evidence respecting the needs of the child and the ability and willingness of the parties to meet those needs. Accordingly, the factors relating to the admissibility of expert opinion must also be brought into the fold of the analysis in deciding whether to order an assessment under section 30.
Based on the caselaw respecting section 30 and the admissibility of expert opinion evidence, I conclude that the relevant principles, factors, and considerations on a motion for a section 30 assessment include the following:
First, drawing from the law respecting expert evidence, before ordering a section 30 assessment, the court should be satisfied that the proposed assessment is likely to provide the court with evidence that is relevant to the parenting issues in the case, and that it will be necessary to assist the trier of fact. Mere helpfulness of the proposed assessment does not satisfy this threshold (Fortier v. Oliver, 2003 CarswellOnt 5397 (S.C.J.), and Baillie v Middleton). Rather, necessity involves the court being satisfied of at least one of the following: a. The expert’s opinion will provide information that is likely to be outside of the experience or knowledge of the judge; b. The assessor’s opinion is likely to be necessary to enable the trier of fact to appreciate the matters in issue due to their technical nature or dimensions; or c. The matter in issue concerns something that ordinary people are unlikely to form a correct judgment about without assistance of the person with special knowledge. In other words, the trier of fact is unable to draw their own inferences and conclusions about the issues in question based on the facts presented without the help of the proposed assessor (White Burgess Langille Inman v. Abbott and Haliburton Company, 2015 SCC 23 (S.C.C.)).
The onus is on the moving party to satisfy the court that the proposed assessment is likely to provide the court with relevant evidence that is necessary to assist the trier of fact.
The section 30 caselaw to date has focused extensively on whether there should be clinical issues involved in a case before an assessment is ordered. However, it is more appropriate, in my view, to focus more broadly on the question of whether the proposed assessment is likely to be relevant and necessary in determining the parenting issues in the case within the meaning discussed above, whether because there are issues of a clinical nature or otherwise. The existence of complex clinical issues that are likely beyond the knowledge and experience of a judge to process and apply properly to the facts of the case is but one reason why a section 30 assessment may be necessary.
In determining whether the assessment is necessary to assist the trier of fact, the court should consider all of the family’s circumstances, including the overall dynamics and the needs of the child. The list of factors enumerated by Kitely, J. in Glick v. Cale as being relevant to determining whether a section 30 assessment should be ordered is a helpful, non-exhaustive outline of some of the factors that the court should consider in deciding if the assessment is necessary. These factors include the following: a. What was the parenting relationship like before separation? Did the parents function at least adequately before the separation and the dysfunction arose after the separation? b. Are the parents unable to make any decision about the child's needs without intervention by a court? c. Is the relationship between the parents so unhealthy that one or both parents is/are unable to identify the best interests of the child and act on it? d. Do the parents have a mutual disregard for the other parent's ability to parent? e. Do the parents blame each other for the dysfunction each describes? f. Is there a clinical diagnosis that might impact on the parenting capacity of one or both parents? g. Is there a clinical diagnosis with respect to any of the children in the family unit that means the child is fragile and vulnerable to ongoing conflict and has special needs? h. What is the age of the child at separation and at the time of the request for the assessment? i. Is the child manifesting behaviour that might be associated with stress caused by the conflict between the parents? j. Is there an alternative? For example, is the child of an age and maturity that his or her views should be known and if so, would it be more appropriate to ask the Office of the Children’s Lawyer to become involved and appoint a lawyer to act for the child? k. Are there other challenges in the family, and if those challenges are resolved, will the family dynamic be improved and avoid the necessity of an assessment? l. What is the nature of the issues that the court must decide? and m. Is an assessment in the best interests of the child?
Turning to the 5th general principle, the assessment should not be ordered if the court is satisfied that it will be in a position to reasonably decide the issues with all of the currently available evidence, including that of professionals who have already been involved with the family (Kramer v. Kramer, (2003), 37 R.F.L. (5th) 381 (Ont.S.C.J.), and Baillie v Middleton). If the evidence that the moving party states is required from the proposed assessor is already readily available from other potential witnesses and professionals without the assistance of an assessment, then the assessment should not be ordered (Ross v. D’Oliveira, 2020 ONSC 7747 (S.C.J.), at para. 30).
The court must be satisfied that the proposed assessor is qualified to identify and assess the needs of the child in question and the ability and willingness of the parents to address their needs (White Burgess).
Assessments are not to be ordered routinely as a convenient means of promoting settlements of custody disputes (Linton v. Clarke, (1994), 10 R.F.L. (4th) 92 (Ont.Div.Ct.); (Baillie v Middleton). Furthermore, they should not be ordered simply as a means of gathering all relevant available information from other potential witnesses together within the knowledge of one professional for the purpose of relaying the information to the court. Necessity goes beyond organizing other readily available evidence to present it to the court in a comprehensive and cohesive manner.
The mere fact that the parties are engaged in a high conflict parenting dispute does not in itself, justify ordering an assessment (Baillie v Middleton).
The potential benefit of expert assistance in a particular dispute must be weighed against the fact that assessments are expensive, intrusive, and time-consuming. There must be evidence sufficient to satisfy the court that the reasons for requiring the assessment more than offset any harm that could be incurred by ordering the assessment (Butler v. Percy 2009 CarswellOnt 4523 (S.C.J.); Hodgson v. Hanson 2000 CarswellOnt 3769 (O.C.J.); Johnstone v. Brighton, 2004 CarswellOnt 3229 (S.C.J.), and Baillie v Middleton).
In weighing the potential benefits of an assessment against the possible prejudice of an assessment, the court must consider whether the child in question has already been exposed to a great deal of stress, disruption, and exposure to professionals. As Pazaratz, J. stated in Baillie v Middleton, an assessment is intrusive not only for the parents but also for children. Accordingly, the court must consider whether a further investigation will have a negative impact on a child by drawing them further into the parental conflict in a court case (Root v. Root, 2008 CarswellOnt 3995 (S.C.J.); Baillie v Middleton).
The court should also consider whether concerns about any delay involved in obtaining the assessment will outweigh any potential benefits of obtaining the assessment. As Pazaratz, J. emphasized in Baillie v Middleton, where the parties are so entrenched and unyielding in their respective positions that nothing short of a trial will resolve the case, a marginally beneficial assessment should not be allowed to delay that final resolution. The issue to consider is whether the assessment will cause delay that is not in the best interests of the child. In considering the impact of delay, the court should consider whether it is more likely than not that the delay necessarily involved in an assessment will enable the parents to have a better understanding of the family dynamics and arrive at a resolution without a trial.
An assessment should not be used as a general fact-finding exercise by one parent hoping to obtain evidence favourable to their position (Haggerty v. Haggerty, 2007 ONCJ 279 (O.C.J.), at para. 7; M.(D.M.) v. L.(D.P.) (1999), 1999 ABQB 37, 44 R.F.L. (4th) 433 (Alta. Q.B.); Baillie v Middleton).
The cost of the assessment will also be an important consideration, although not necessarily determinative. However, in addressing the cost issue, the court must also weigh the potential for the assessment assisting the parties to resolve the issues in dispute and to avoid the cost of further litigation and a trial (Baillie v Middleton).
The need for neutral and independent evidence about the views and preferences of the child may provide support for ordering a section 30 assessment. However, where these views and preferences are readily available through other independent witnesses and/or professionals, the court may conclude that further evidence is unnecessary, and that the appointment of an assessor to address this point is not required.
Analysis
I turn to the reasons for my decision in this case. I note first that both parties conceded that the two proposed assessors possess the necessary qualifications to assess the parenting issues in this case. I did review the curriculum vitae of Dr. Walker-Kennedy and Ms. Lieberman, and I agree that they are both qualified to carry out parenting assessments pursuant to section 30 of the Children’s Law Reform Act. However, given the nature of the issues in this case, including the concerns regarding the child’s sexualized behaviours, the ability of the parties to manage them, the issues about family violence and the impact of that on the family, and the concerns regarding the implications of the Respondent’s historical brain injury, I am of the view that Dr. Walker-Kennedy would have been much better suited to the task for carrying out the assessment. This is important to the issue of costs of the assessment. In reaching this decision I note that Dr. Walker-Kennedy is a registered psychologist, having obtained her PhD in psychology, and a diploma in Child and Adolescent Psychoanalytical Psychotherapy, and she has extensive experience in this field. Ms. Lieberman’s professional background is very impressive, but it is in my view less geared towards the particular issues in this case. Notwithstanding the qualifications of the two proposed assessors, having carefully weighed all of the principles, factors, and considerations outlined above as against the evidence in this case, I conclude that it is not appropriate to order an assessment pursuant to section 30 for several reasons.
First, I am not satisfied that the proposed assessment is necessary to assist the court in determining the issues that must be decided in this case. Rather, I conclude that all of the evidence respecting the child’s challenges, sexualized behaviour, developmental progress and overall needs, and the parties’ ability to meet her needs, can be addressed through the evidence of the parties themselves and others, including family members and friends and the vast number of professionals who have been involved in the case. As I have noted, there have been at least three child protection investigations that I am aware of, and throughout those investigations numerous social workers have assessed the family situation, their overall family dynamics, the clinical concerns that the Applicant raises the ability to meet J.S.’s needs. There have also been police investigations into the allegations of family violence by the Respondent and the Applicant’s concerns respecting the child’s sexualized behaviours which she felt were exacerbated or caused by situations in the father’s care. Many other community professionals have also been involved with this family, including educational professionals, mental health practitioners, members of the Child Advocacy and Assessment Program, in Hamilton, and counsellors. Through all of these professionals, the parties, and potentially family members and friends, I have no doubt that the court would be able to receive all of the factual evidence that it will require to formulate conclusions about the decision-making responsibility and parenting time regime that would be in the child’s best interests. I note that there are certain challenging issues in this case with respect to which a judge may require assistance from qualified professionals who have special knowledge and expertise, to properly and fully appreciate the issues and appropriately apply the knowledge to the decision-making process. For instance, as the Applicant highlights, there are important issues in this case about alleged family violence and family conflict, and the impact of those concerns on the child’s well-being. There are also concerns regarding the child’s sexualized behaviours and questions about the possible causes of them, the services that would be appropriate to resolve those issues, and the ability of the parties to implement the recommended services. Having regard for the child’s unique needs in relation to her sexualized behaviours, the court would also require the assistance of qualified professionals to determine the overall parenting plan that would best promote her best interests.
Finally, as I have stated, the Applicant raised concerns regarding the impact of the Respondent’s traumatic brain injury on his overall functioning and his parenting capacity. However, as I have stated, there has been a wide array of professionals involved with this family for many years, and I am satisfied that the evidence respecting the issues that I have just referred to could be fully addressed by those professionals.
Moreover, I conclude that the assistance required by the court on these matters would be most helpful coming from those professionals directly, rather than being filtered through yet another professional who has never had direct involvement in the lives of the parties and the child over the years. In my view, the judge who is ultimately called upon to determine the parenting issues in this case would be able to synthesize the information available from the many professionals and draw appropriate inferences and conclusions to reach a decision in this case respecting the decision-making responsibility and parenting time regime that best promotes J.S.’s best interests.
With respect first to the family violence concerns. The impact of family violence on victims of such violence, including children, is something well within the capacity of the various Society social workers to comment on. In addition, the investigating police officers would have knowledge and training about these issues and could provide further input. Furthermore, as I discuss in further detail below, the child has been assessed by her family physician, Dr. Burma, as well as medical professionals associated with the Child Assessment Advocacy Program in Hamilton, who would also be undoubtedly very well-trained in issues relating to family violence and the impact of it on parents and children.
Similarly, on the issue of the child’s sexualized behaviours, numerous professionals have been involved with the family and the child to assess the cause of the problems, formulate proposed strategies for resolving them, and work with the parents and the child to understand and manage them appropriately. These include the various child protection workers who have been involved and the family physician for the child, Dr. Burma. In addition, Dr. Caniusis of the Child Advocacy and Assessment Program has assessed the child and consulted with the parties on these issues, and has provided opinions and recommendations for appropriate means of managing the child’s behaviours. Another pediatric specialist with the Child Advocacy and Assessment Program who has special expertise in sexualized behaviours in children, Dr. Niec, has also been involved with the family to provide opinions and advice. Dr. Niec provided clear recommendations to the parties as to what she felt would be appropriate steps to address the issues. Furthermore, since the summer of 2021, a play therapist, Ms. Rebecca Wolfe, has been providing therapeutic services to J.S. to assist and support her with her issues and she would also, in my view, be able to provide valuable information to the court about the child’s behaviours, whether the parties have been implementing recommended strategies, J.S.’s progress with treatment, and whether further services or strategies needs would be appropriate. As well, in July of 2021, I made an order that the parties engage in counselling themselves, with qualified professionals to obtain information and strategies themselves as to how best to manage these behaviours, yet I have not heard any evidence in this motion about whether or not they have done so and the names of any such professionals. This is another step that, in my view back in the summer, should have been taken and this continues to be my view.
Turning to the issues of the Respondent’s brain injury and the potential impact on his parenting, this is a highly specialized area and the curriculum vitae of the assessors proposed in this case do not, in my view, reflect any specialized training or knowledge in this regard. Information about this issue would best come from the specialist treatment professionals who have been directly involved with the Respondent over the years since he sustained this injury, and the Respondent noted that he could call them as witnesses at trial.
By way of closing and overview on the issue of necessity, I am satisfied that with the benefit of all of the evidence of the parties and the professionals that I have referred to and other involved professionals, the court would have the ability to reach a decision respecting the best interests of J.S. without the need for further involvement by another professional.
In reaching my decision I have also weighed the potential benefits of the proposed assessment as against the potential negative impacts on the family. I conclude that the potential disadvantages outweigh the possible benefits. These potential negative impacts include the child having to be probed once again about her history, her issues, her concerns, and her views and preferences. J.S. is only 6 years old, and she has already had to participate in several intrusive child protection investigations and police investigations. She has also undergone assessment by the Child Advocacy and Assessment Program team, has been in counselling, and now is involved with a therapist. Introducing yet another assessment professional to her and putting her through the process that is required of a section 30 assessment would, in my view, be detrimental to her well-being, particularly given my conclusions regarding the limited usefulness of the proposed assessment. I have considered, as well, the delay and cost that the proposed assessment would entail. As I have stated, the most appropriate of the two assessors is, in my view, Dr. Walker-Kennedy. She has stated that the assessment could take her until approximately the fall of 2022 to complete, and that it would cost from $20,000.00 to $30,000.00. Given the many challenging dynamics in this case and the number of professionals involved, I would expect that the costs would be closer to the $30,000.00 range. This case has already been outstanding since the fall of 2019, and there have been numerous protracted court proceedings and delays in resolving the matter and bringing it to a conclusion. These delays are not, in my view, in the best interests of the child, nor are they in the best interests of the parties in this case. The matter needs to come to a final resolution as soon as possible for everyone’s benefit. Furthermore, I am at a loss as to how the Applicant is able to afford this proposed assessment, and while she is willing to upfront the costs, she wishes to reserve the right to pursue reimbursement from the Respondent down the road. The Respondent simply does not have the means to contribute to this type of expense. While I appreciate that in some cases, an assessment may promote settlement and result in a costs saving overall for not having to proceed to trial, I am not at all satisfied that this would be the outcome in this case given the extent of the difficulties between the parties, their inability to resolve issues without court intervention, and the Applicant’s position that she should have sole decision-making responsibility and primary residence, despite the longstanding status quo of equal parenting time. I conclude that, in all likelihood, the Respondent would be left with the costs of both a trial in this matter as well as the very burdensome costs of the proposed assessment which is far beyond his means to contribute to.
For all of these reasons, the Applicant’s motion is dismissed.
E N D O F E X C E R P T O F P R O C E E D I N G S
