Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20220126 DOCKET: C69393

Paciocco, Nordheimer and Coroza JJ.A.

BETWEEN

K.K. Applicant (Appellant)

and

M.M. Respondent (Respondent)

Counsel: Gary S. Joseph, for the appellant Aida Pasha, for the respondent

Heard: September 3, 2021 by video conference

On appeal from the order of Justice Cynthia Petersen of the Superior Court of Justice, dated April 9, 2021, with reasons dated June 1, 2021 and reported at 2021 ONSC 3975.

By the Court:

Overview

[1] The parties married in 2003 and separated in 2012. Regrettably, following separation they engaged in high-conflict litigation involving their children, V.K., and J.K. The trial judge described this case as a heartbreaking saga of family violence and parental alienation.

[2] At the time of trial, the children were living in separate residences – J.K. with the appellant and visiting the respondent’s (his mother) house on weekends, and V.K. with the respondent.

[3] After a 19-day trial, the trial judge directed that the children’s principal residence would be with the respondent, reversing the status quo living arrangement for J.K. The trial judge directed that the respondent would have sole responsibility for making all day-to-day and significant decisions without being required to consult the appellant. The order also addressed issues of child support, section 7 expenses under the Federal Child Support Guidelines, SOR/97-175, travel restrictions, and restricted contact.

[4] On appeal, the appellant’s focus is on his son J.K. He submits that J.K.’s primary residence should be with him and that the trial judge erred by reversing the status quo that had remained in place for six and a half years before trial. The appellant requests that the final order of the trial judge be stayed, that J.K. be returned to his care, and that the respondent’s parenting time for both children revert to the status quo before trial.

[5] In support of his submission, the appellant’s written materials alleged several legal errors, which were narrowed down by counsel in oral submissions to the following two complaints:

1. The trial judge erred in her application of the best interests test as set out in s. 16 of the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.).
2. The trial judge failed to meaningfully consider the recommendations of Dr. Goldstein, a court-appointed assessor who had prepared reports during the litigation pursuant to s. 30 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”).

[6] At the end of the hearing, the appeal was dismissed, with reasons to follow. These are those reasons.

Background Facts

[7] The parties were married in India. They immigrated to Canada so that the appellant could practice medicine. The family initially lived in Newfoundland and then Ontario. The parties separated in November 2012. The appellant filed an application issued on January 3, 2013 and the respondent filed her answer on February 27, 2013.

[8] Prior to trial, the parties had approximately 40 court appearances at motions and conferences. During the litigation, several pre-trial orders about the children’s primary residence were made. Importantly, sole custody of the children was granted to the appellant father based on an interim finding of a motion judge of parental alienation by the respondent mother in March 2014. [1]

[9] In making the interim finding of parental alienation, the motion judge relied on the expert evidence of a court-appointed assessor named Dr. Sol Goldstein pursuant to s. 30 of the CLRA. Dr. Goldstein provided opinion evidence that V.K. had been alienated from the appellant by the respondent and that both V.K. and the respondent conspired to alienate J.K. from the appellant. Dr. Goldstein expressed the view that V.K.’s mental health was being seriously compromised by the respondent’s influence. He recommended the immediate removal of the children from the respondent’s care.

[10] Once the interim finding of parental alienation had been made, for the next six and a half years, the children resided with the appellant and the respondent had only limited parenting time, including lengthy periods of no contact or communication with her children.

[11] The trial did not start until November 30, 2020. At trial, the appellant intended to call Dr. Goldstein as a witness to testify about the assessment he was appointed to conduct. However, Dr. Goldstein did not appear for trial despite being served with a summons to attend by the appellant. The appellant did not ask for an order from the trial judge compelling the doctor to attend. Instead, he sought to admit Dr. Goldstein’s s. 30 CLRA reports into evidence and asked the trial judge to give weight to the opinions and recommendations contained in them. For her part, the respondent objected to the admissibility of Dr. Goldstein’s assessment reports and letters. This objection was based on findings of the College of Physician and Surgeons (“CPSO”) arising from complaints that she filed against him. Among other things, the respondent sought to admit a copy of a decision of the Inquiries, Complaints and Reports (“ICR”) Committee of the CPSO dated April 16, 2018, pertaining to one of her complaints. The decision set out that the ICR Committee had serious concerns about Dr. Goldstein’s approach to the s. 30 assessment in this case. The appellant objected to the introduction of this material, citing s. 36(3) of the Regulated Health Professions Act, 1991, S.O. 1991, c. 18 (“RHPA”) which makes records of regulatory proceedings at the CPSO and decisions made in them inadmissible in civil proceedings. The trial judge held that the prohibition did not apply in this case and that no weight would be given to Dr. Goldstein’s opinions or recommendations.

[12] During trial, the parties focused on the allocation of parental decision-making, the question of with whom the children should primarily reside, and the question of parental alienation. [2]

[13] After an exhaustive and lengthy review of the evidence, the trial judge found that the appellant was not a credible witness. In contrast, the trial judge found that the respondent was credible and that she had not engaged in alienating conduct, but instead was the target of vilification and the victim of parental alienation created by the appellant.

[14] The trial judge concluded that there was “an abundance of evidence that both children have been subjected to verbal, emotional and psychological abuse by the [appellant]” and “that the physical, emotional and psychological safety, security and well-being of both children would best be fostered if they were living together in [the respondent’s] home.”

Fresh Evidence

[15] At the outset of the hearing, the appellant attempted to file fresh evidence allegedly relating to the determination of the issues under appeal.

[16] The fresh evidence, an affidavit proffered by the appellant, purports to show that the respondent is wilfully breaching the final order of the trial judge and is undermining the appellant’s relationship with J.K. The appellant argues that it is not unusual in this type of high-conflict case for this court to receive updated information on appeal with respect to matters that relate to the best interests of the children. He submits that the wilful breaches by the respondent are an overarching concern on this appeal. For her part, the respondent submits that she has taken her responsibility as the decision-making parent very seriously. She contends she has used her discretion in the best interests of the child. Where she had concerns about specific details of the order and its effect on the child, she sought relief in the Superior Court to avoid being in breach of the trial judge’s order.

[17] The test for admitting fresh evidence on appeal requires the moving party to satisfy four criteria: (i) the evidence could not have been adduced at trial; (ii) the evidence must be relevant in that it bears on a decisive or potentially decisive issue; (iii) the evidence must be reasonably capable of belief; and (iv) the evidence must be such that, if believed, it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result: R. v. Palmer, [1980] 1 S.C.R. 759, at p. 775. This court recently reaffirmed in Bors v. Bors, 2021 ONCA 513, 60 R.F.L. (8th) 36, that the Palmer criteria are more flexible where an appeal involves the best interests of children, where it is important to have the most current information possible “[g]iven the inevitable fluidity in a child’s development”: Goldman v. Kudelya, 2017 ONCA 300, at para. 25, citing Children’s Aid Society of Owen Sound v. R.D. (2003), 178 O.A.C. 69 (C.A.), at para. 21.

[18] Notwithstanding the flexible approach for receiving fresh evidence where an appeal addresses the best interests of children, the fresh evidence in the present case does not meet the test for admission. The proposed fresh evidence is essentially the appellant’s account of what has transpired with J.K. since the order under appeal was made, including complaints that the respondent has failed to comply with the order and that the final order is causing harm to J.K.

[19] This evidence is not essential to our decision to deal with the appellant’s grounds of appeal. As will become clear, even if the fresh evidence is believed, it could not reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result. The trial judge’s final decision to remove J.K. from the appellant’s care was firmly rooted in the evidence and based on clear findings made against the appellant’s credibility. The appellant’s complaints about what has occurred after the trial judge’s final order, and any allegations about the respondent’s conduct should more properly be taken up with the trial judge. We note that the trial judge’s final order had a built-in review of her parenting order after September 30, 2021.

[20] Therefore, the motion to introduce fresh evidence is dismissed.

Discussion

[21] Before turning to the appellant’s arguments, a comment should be made about the trial judge’s reasons in this case. The reasons comprise 898 paragraphs over more than 300 pages. The trial judge obviously laboured over her reasons and provided careful and thoughtful analysis on the multiple issues raised by the parties. We recognize that the trial judge had the significant task of reviewing the long litigation history between the parties. We also recognize that for certain days during the trial, the appellant was self-represented, and the trial judge likely felt that this obligated her to specifically address every argument to demonstrate that his position was understood.

[22] Nevertheless, there are portions of the reasons that contain lengthy verbatim summaries of evidence. This court has recently raised concern about these types of recitations of the evidence in reasons for judgment: see Welton v. United Lands Corporation Limited, 2020 ONCA 322, 64 C.C.E.L. (4th) 265, at paras. 56-63; R.F. v. J.W., 2021 ONCA 528, at para. 34, n. 7; N. v. F., 2021 ONCA 614, 62 R.F.L. (8th) 7, at para. 266, n. 14, per Lauwers J.A. (dissenting), leave to appeal granted, [2021] S.C.C.A. No. 364.

[23] Trial judges are not obliged to refer to every piece of evidence that is introduced at trial. All a trial judge must show is that they have grappled with the essential issues raised in the litigation. Given the narrow issues raised in this case – the best interests of the children – these verbatim summaries and, consequently, the length of the reasons, are problematic. One of the purposes behind the requirement to give reasons is to identify the issues to be resolved and to distill the evidence down to the facts that are relevant to those issues: see generally, R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869. The wholescale repetition of all the evidence heard does not fulfill that purpose. It does not help the parties who may be unable to understand the central basis for the decision reached. It does not help counsel in terms of their ability to understand and identify possible grounds of appeal. Finally, it does not help this court which must, among other things, then determine if extraneous facts influenced the trial judge’s analysis.

[24] We now turn to the two main issues advanced by the appellant.

A. Best Interests of J.K.

[25] According to the appellant, the trial judge erred in law by failing to adhere to the best interests analysis mandated by the applicable legislation and case law. He argues that the focus was not on J.K.’s best interests. Specifically, he submits that the trial judge erred by failing to fully consider the disruption caused to J.K. by removing him from the appellant, his school and his community, the negative effects on the relationship between J.K. and the appellant, and the desirability of maximizing contact between J.K. and both parents.

[26] We do not accept these submissions.

[27] We begin with the undisputed premise that since the order under appeal is a parenting order, the trial judge’s exercise of discretion and factual findings in connection with it are entitled to considerable deference on appeal: A.M. v. C.H., 2019 ONCA 764, 32 R.F.L. (8th) 1, at para. 4; Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014, at para. 13. In our view, there is no basis to intervene because the appellant has failed to point to any material error, serious misapprehension of the evidence, or error of law in the trial judge’s reasons: see Van de Perre, at paras. 11-12. The trial judge engaged in a full inquiry into the best interests of both children. The appellant’s submissions invite us to retry the case, which is not our function.

[28] The trial judge was completely focused on the best interests of the children. That focus is evident throughout her reasons and especially so in the portions of her reasons that are dedicated solely to the best interests analysis.

[29] First, the trial judge noted that, in considering the parties respective parenting plans, she was required to determine what orders were ultimately in the children’s best interests in accordance with s. 16 of the Divorce Act. Section 16(1) directs that the court shall take into consideration “only the best interests of the child of the marriage in making a parenting order or a contact order” and s. 16(3) sets out a number of factors that the court must weigh in carrying out the best interests analysis. The trial judge noted that this legislation does not create an exhaustive list of relevant factors and that the weight to be given to each factor depends on the circumstances of each case.

[30] Second, the trial judge expressly considered the appellant’s argument that a continuation of the status quo with him as the primary caregiver would prevent uprooting the children and disrupting their routines. She concluded that these were important considerations but that they were more applicable to J.K. because V.K. had already made the transition to living in Toronto with the respondent. She noted that J.K. only started attending his current school shortly before the trial and that he did not have long-established friendships or relationships with teachers and staff at the school. The trial judge noted that J.K. would be required to change schools in another year to start high school and that the respondent had no intention of interrupting his current school year in any event.

[31] Third, the trial judge weighed the appellant’s parenting plan, which involved the same arrangements he had made for the last seven years. She noted that the appellant works long hours and runs his own medical clinic. He required the assistance of two nannies who would continue to assist J.K. with his homework, take the children to appointments, and oversee shopping and preparation of their meals. The trial judge found that the respondent, on the other hand, worked on average three days per week and spent more time with the children.

[32] Fourth, the trial judge found that there was “an abundance of evidence” that both children were subjected to verbal, emotional, and psychological abuse by the appellant. She specifically found that he physically disciplined V.K. and, on more than one occasion, struck her when he was in a fit of rage. She concluded that the appellant’s inability to control his anger and his frequent resort to physical discipline of V.K. over a long period of time placed both children at risk of physical and psychological harm in his care, even if there was no evidence that he had ever struck J.K.

[33] Fifth, the trial judge carefully considered J.K.’s bond with the appellant. However, she found that it was in his best interests that he be removed from the appellant’s grip. The trial judge held:

Still, the greatest factor in favour of maintaining J.K.’s primary residence with his father is his strong emotional attachment to K.K. He has been in his father’s primary care for most of his living memory. Separating J.K. from his father to live principally with his mother will no doubt have a serious emotional impact on him. I am, however, convinced that he needs to be removed from the poisonous atmosphere of his father’s orbit in order to escape the crushing pressure under which he has been placed. His best interests necessitate not only that he lives principally with his mother and sister, but also that he has no contact with his father for a temporary period of time.

[34] Finally, the trial judge found that the respondent, in contrast to the appellant who had devoted significant energy to vilifying her in the children’s eyes, has been consistently nurturing, yet firm and responsible, in her parenting.

[35] Contrary to the appellant’s submission, the trial judge thoroughly considered J.K.’s best interests. She sensitively and carefully considered only the best interests of each child as required by s. 16(1) of the Divorce Act. She clearly considered all factors related to the circumstances of each child, giving primary consideration to each child’s physical, emotional and psychological safety, security and well-being, as required by s. 16(2). There is no basis to suggest that she erred in the assessment of best interests. Accordingly, this ground of appeal fails.

B. Assessment of S. 30 CLRA Reports

(1) The Trial Judge’s Ruling

[36] As noted above, the appellant father asked the trial judge to admit Dr. Goldstein’s s. 30 CLRA reports and letters into evidence and to consider the parenting recommendations contained within.

[37] The respondent objected to the admissibility of Dr. Goldstein’s evidence. Her objection was based on findings of the CPSO arising from complaints that she filed against him. To support her objection, she sought to admit several items: a copy of the decision of the ICR Committee of the CPSO, copies of documents put before the ICR Committee, and a print-out of the CPSO’s on-line Public Register indicating Dr. Goldstein’s member status and his undertakings to the Discipline Committee of the CPSO. The reasons of the ICR Committee reveal that it had serious concerns about Dr. Goldstein’s approach to the s. 30 assessment in the present case and concluded that he would benefit from remediation. The public undertakings restricted Dr. Goldstein’s practice such that he undertook not to conduct any new assessments of individuals he believes have been subject to or have engaged in parental alienation and to terminate any ongoing practice related to parental alienation.

[38] Dr. Goldstein also undertook not to provide opinion evidence about parental alienation to any third party, whether orally or in writing, in regards to individuals he had assessed or treated, except as required by law, in which case he was to advise the relevant parties, in advance of providing such opinion evidence, to consult the CPSO’s Public Register.

[39] The appellant objected to the admissibility of all the CPSO documents, in part because of the statutory prohibition found in s. 36(3) of the RHPA. Section 36(3) renders inadmissible in a civil proceeding a record of a proceeding under the RHPA, or a report, document or thing prepared for or statement given at such a proceeding.

[40] The trial judge noted that the statutory prohibition did not render inadmissible the fact that a complaint was made and did not capture the website information referring to the undertakings given by Dr. Goldstein. The trial judge then proceeded to interpret s. 36(3) of the RHPA – specifically, whether the case before her fell within the meaning of a “civil proceeding”, thus engaging the prohibition.

[41] After laying out the principles of statutory interpretation, the trial judge drew several distinctions between “traditional” civil proceedings and family law litigation, the interests at play and remedies available in each. She noted that her task was to interpret the legislation within the distinct contextual framework of family law parenting disputes wherein the children’s best interests are paramount.

[42] The trial judge found that to consider this case a “civil proceeding” would yield an absurd result contrary to the legislature’s intention. Upholding the prohibition would require her to ignore the ICR Committee’s findings. This, in turn, would force the respondent to duplicate the CPSO proceeding by calling expert evidence and proving deficiencies in the assessor’s reports from square one, resulting in more delay and expense in the litigation. Furthermore, finding the prohibition applied would mean determining the children’s best interests without reference to highly probative evidence about the validity of the opinions expressed by the court-appointed assessor.

[43] The trial judge held that admitting the CPSO materials in the present case would not undermine the objectives of s. 36(3) RHPA. Ultimately, she concluded that s. 36(3) of the RHPA did not apply, and in addition to her decision to admit the assessor’s public undertakings as information not captured by s. 36(3), she proceeded to admit the ICR Committee’s decision. Given the ICR Committee’s findings that the assessment reports were conducted in a substandard manner, she gave no weight to Dr. Goldstein’s written recommendations, and concluded by noting that, in the alternative, had she not admitted the ICR decision, she still would not have relied on Dr. Goldstein’s opinions unless the appellant produced the assessor for cross-examination, which he was unable to do. [3]

(2) The Appellant’s Argument

[44] The appellant submits that the trial judge erred in treating s. 36(3) of the RHPA as inapplicable, which makes records of regulatory proceedings at the CPSO and decisions made in them inadmissible in civil proceedings. He argues that the trial judge erred in concluding that a family law proceeding is not a civil proceeding as contemplated by the RHPA. Her decision to admit the CPSO materials tainted her decision and she erroneously gave no weight to the assessor’s opinion or recommendations.

(3) Does s. 36(3) of the RHPA prohibit the admission of the CPSO materials?

[45] Section 36(3) of the RHPA provides the following:

No record of a proceeding under this Act, a health profession Act or the Drug and Pharmacies Regulation Act, no report, document or thing prepared for or statement given at such a proceeding and no order or decision made in such a proceeding is admissible in a civil proceeding other than a proceeding under this Act, a health profession Act or the Drug and Pharmacies Regulation Act or a proceeding relating to an order under section 11.1 or 11.2 of the Ontario Drug Benefit Act.

[46] As the trial judge correctly stated, these words must be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of the legislature: Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 21; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26.

[47] On a plain reading, this section creates a blanket prohibition against admitting in a civil proceeding any records, reports or documents directly related to a proceeding under the RHPA. The text of the provision leaves no room for exception or discretion in relation to the specific items mentioned: a record of a proceeding, a report, a document or thing prepared for or statement given at such a proceeding, or an order or decision made in such a proceeding.

[48] That said, anything not specifically mentioned is fair game. As mentioned, the trial judge noted that the statutory prohibition did not preclude admissibility of evidence of the fact that a complaint was made and did not capture the website information referring to the undertakings given by Dr. Goldstein. We agree. The law is clear that the fact that a complaint was launched, an investigation held, and a decision rendered by the IRC are not covered by s. 36(3) of the RHPA and may be otherwise provable in court, without reference to a prohibited document: F. (M.) v. Sutherland (2000), 188 D.L.R. (4th) 296 (Ont. C.A.), at para. 45, leave to appeal to S.C.C. refused, [2000] S.C.C.A. No. 531; Pouget v. Saint Elizabeth Health Care, 2012 ONCA 461, 294 O.A.C. 293, at para. 25; Ontario v. Lipsitz, 2011 ONCA 466, 281 O.A.C. 67, at para. 114, leave to appeal refused, [2011] S.C.C.A. No. 407; Armitage v. Brantford General Hospital (2004), 71 O.R. (3d) 44 (S.C.), at para. 29.

[49] As well, Dr. Goldstein’s undertakings, while they may have been made in response to a decision or order covered by s. 36(3), are also not themselves either a decision or order captured by s. 36(3). The undertakings were generated by Dr. Goldstein himself, not by the board, and presumably were also generated after the board had completed its process and released its decision. The rationale that applies to keeping the other items listed in s. 36(3) confidential does not apply to them. Public undertakings are not meant to be confidential, they provide the public with notice, and their admission in civil proceedings where a trial judge deems them relevant does not undermine the purpose of s. 36(3), discussed below. We therefore agree with the trial judge that the undertakings themselves were admissible.

[50] However, we respectfully disagree with the trial judge’s conclusion that all proceedings involving the best interests of the child are not civil proceedings and entirely evade the reach of s. 36(3) of the RHPA. In our view, an exemption for all family law cases goes too far.

[51] First, private family law disputes, while distinct from other civil litigation in many respects, are “civil” proceedings in the ordinary sense of the word: they concern private relations between members of the community in contrast to criminal or child protection proceedings, which both involve state action. If the legislature had intended to exempt family law litigation from the reach of s. 36(3) RHPA, it would have said so.

[52] As this court explained in Sutherland, at para. 29,

The purpose of s. 36(3) is to encourage the reporting of complaints of professional misconduct against members of a health profession, and to ensure that those complaints are fully investigated and fairly decided without any participant in the proceedings – a health professional, a patient, a complainant, a witness or a College employee – fearing that a document prepared for College proceedings can be used in a civil action.

[53] The “broad objective” of the provision “is to keep College proceedings and civil proceedings separate”: Sutherland, at para. 31; see also Lipsitz, at paras. 101-3.

[54] A global exemption to s. 36(3) for all family law cases would significantly erode the reach and purpose of s. 36(3) RHPA. This is because unfortunately, family law disputes involving the best interests of children are fairly common. It would not be unusual for one of the many participants in an RHPA proceeding to at some point become involved in a family law proceeding involving the best interests of children.

[55] Fortunately, it is possible to preserve the integrity and purpose of s. 36(3) of the RHPA while also giving effect to the purpose of Part III of the CLRA, which includes ensuring, “that applications to the courts respecting decision-making responsibility, parenting time, contact and guardianship with respect to children will be determined on the basis of the best interests of the children” and to s. 30 of the CLRA, under which Dr. Goldstein’s report was prepared, the purpose of which is to “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.”

[56] The trial judge was aware of the need to avoid absurdity in the context of these two distinct legislative schemes. Specifically, the trial judge was appropriately concerned that in the circumstances of this case, where a motion judge had relied on Dr. Goldstein’s opinions in finding parental alienation by the mother, which in turn resulted in a reversal of custody and a temporary order that lasted for more than six years, the court should not be deprived of highly probative evidence regarding the validity of those opinions and recommendations.

[57] However, absurdity is avoided and the ordinary meaning of s. 36(3) preserved in two ways. First, although it is indisputable that increased efficiency could be achieved by allowing for the admissibility in family law proceedings of “orders or decisions made” at a proceeding governed by the RHPA, or “a report, document or thing prepared for or statement given at [an RHPA governed] proceeding”, s. 36(3) does not create an evidentiary privilege relating to the information or evidence used to prepare such orders, decisions, reports, documents, things or statements. There is nothing to prevent the parties from selecting and presenting such background evidence or information so that a trial judge is not deprived of highly probative evidence regarding the validity of relevant opinions and recommendations. Second, and as already explained, s. 36(3) does not apply to the fact that the complaint was made, the fact that an investigation was conducted, and the fact that a board decision was rendered and undertakings given. As this case demonstrates, depending on the circumstances those “facts” may be relevant when determining the probative value to give to opinions and recommendations. When these limitations on the reach of s. 36(3) are considered, “harmony [can be achieved] between the various statutes enacted by the same government”: Therrien (Re), 2001 SCC 35, [2001] 2 S.C.R. 3, at para. 121; Shaver-Kudell Manufacturing Inc. v. Knight Manufacturing Inc., 2021 ONCA 925, at para. 28.

(4) Conclusion

[58] In conclusion, while the confidentiality protections of s. 36(3) of the RHPA do apply to family law proceedings involving children, in our view the trial judge’s decision in this case was justified. Taken together, the fact of the complaint, the fact that an investigation was conducted and a decision given, and the content of the public undertakings were all admissible and sufficient to support the decision to give Dr. Goldstein’s opinions no weight.

[59] We note that it is by no means clear that Dr. Goldstein’s opinions, even given more weight, would have affected the trial judge’s overall decision to reverse the status quo parenting arrangement. We say this acknowledging that the weight to be attached to the assessor’s evidence of any expert is a matter for the trier of fact. The trial judge was aware that the opinion likely supported the status quo because Dr. Goldstein’s reports were used by the motion judge in making an interim order. However, the trial judge gave detailed reasons for why she did not agree with maintaining the status quo. As we have set out in this judgment, we are satisfied that her findings against the respondent’s credibility and the best interests of J.K. are clearly supported by the record.

[60] We would not give effect to this ground of appeal.

C. Other Grounds

[61] While other grounds of appeal were advanced by the appellant in his factum, they were not pressed in oral argument or only dealt with in a cursory manner. These issues may be dealt with summarily as follows.

(1) The Assessment of the Appellant’s Credibility and Evidence

[62] The trial judge found that the appellant was an incredible witness. In contrast, she found that the respondent was a credible witness and that her evidence was corroborated by other credible evidence at trial including the testimony of the Office of the Children’s Lawyer (“OCL”) clinician, Ms. MacKenzie, and the Children’s Aid Society (“CAS”) worker, Mr. Thomas. The appellant submits that the trial judge made several palpable and overriding errors in her assessment of his evidence. He argues that the trial judge improperly impugned his credibility, failed to consider the whole of the evidence, and improperly drew adverse inferences against him. We disagree.

[63] In assessing his credibility, the trial judge found that the appellant:

i. made several misrepresentations in his Form 35.1 sworn parenting affidavit filed before the court; ii. concealed from a case supervision judge his plans to travel with the children to India; iii. misrepresented the status of his health to obtain adjournments of the trial under false pretexts; iv. tendered a fake Indian hospital record as evidence during the trial; v. demonstrated a selective memory during cross-examination; vi. became evasive when confronted with difficult questions; and vii. made several prior inconsistent statements.

[64] These unequivocal findings were amply supported in the record, and there is no basis to interfere with any of them.

(2) Adequate Weight to J.K.’s views and preferences

[65] The appellant submits that the trial judge failed to give adequate weight to J.K.’s views and preferences as required by law. We reject this submission. As noted above, the trial judge carefully considered reports from the CAS, the OCL Voice of the Child report, and the evidence of Mr. Thomas and Ms. MacKenzie (the author of the OCL Voice of the Child report) setting out the children’s views and preferences. The trial judge was aware of J.K.’s preference to live with the appellant. However, in relation to J.K. the trial judge found that “J.K.’s level of maturity is commensurate with his pre-teen age” and that “his views have been profoundly influenced by [the appellant’s] relentless vilification of [the respondent].”

[66] In a case where both parties made allegations of parental alienation against the other, the trial judge was required to carefully examine the possibility that the children’s views may not be independently formed. The trial judge’s reasons demonstrate common sense and a reasoned approach to the children’s views. The CAS reports, the OCL Voice of the Child report, and the testimony from the authors of the reports were reviewed by the trial judge and sufficient to convey the children’s views and preferences. The trial judge recognized that J.K. had a strong emotional attachment to the appellant but felt that his views had been manipulated by the appellant. We defer to her findings and dismiss this ground of appeal.

Disposition

[67] As explained above, this appeal was dismissed at the conclusion of the oral hearing. The panel requested that if the parties were unable to agree on costs, the court would receive brief written submissions. We have received those submissions. The respondent is entitled to costs in the amount of $20,000 all inclusive.

“David M. Paciocco J.A.”

“I.V.B. Nordheimer J.A.”

“S. Coroza J.A.”

Footnotes:

[1] We use the former terminology of “custody” (which is no longer used in the legislation) only when referring to this order made in March 2014.

[2] Although support issues were also litigated at trial, the appellant did not advance any support arguments in his factum or oral submissions. Needless to say, there is no basis to interfere with the trial judge’s findings on any of the support issues.

[3] The trial judge also noted that the appellant did not ask her to compel Dr. Goldstein to attend cross-examination, but had he done so, she “would have denied the request based on [Dr. Goldstein’s] undertakings”. Though not directly argued on appeal except for a brief mention in oral argument, we note that, as set out above, Dr. Goldstein’s undertakings included an exception for giving opinions about individuals he has assessed where “required by law”. A court order summoning him to testify would have engaged this exception.