ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: C-471/04

DATE: 2013-01-30

BETWEEN:

The Children’s Aid Society of Hamilton

Applicant

– and –

E.P. (mother)
D.T. (father of A.P.)
L.M. (father of T.P.)
Six Nations of the Grand River

Respondents

Kory Mikalski – Counsel for the Applicants

Robert Wasserman – Counsel for the Mother

Sam Garcea – Counsel for the Father (A.P.)

David Maltby – Counsel for the Father( L.M.)

Donna Laforme – Band Representative for Six Nations of the Grand River.

Lauren Bale – Office of the Children’s Lawyer for T.P.

Kathy Baker – Office of the Children’s Lawyer for A.P.

HEARD: January 25, 2013

The Honourable mr. justice pazaratz

[1]. In this motion requesting a parenting capacity assessment [“PCA”] in relation to one of two children, two parents said yes; one parent said no; the Children’s Aid Society said no; and the two children’s lawyers couldn’t agree.

BACKGROUND

[2]. The children involved are a 10 year old boy T.P. and a six year old girl A.P.

[3]. The mother is E.P. age 27.

[4]. The biological father of A.P. is D.T. age 39.

[5]. The biological father of T.P. is L.M. age 34.

[6]. Since November 16, 2010 both children have been placed with D.T. under supervision by the Society.

PROTECTION APPLICATION

[7]. On November 19, 2010 the Children’s Aid Society of Hamilton [”the Society”] commenced a child protection application in relation to both children, proposing that they be placed in the care of D.T. for a period of 6 months under Society supervision.

[8]. At the time the Society expressed numerous concerns about the mother including:

a. She had a significant history with the Society both as a child and as a parent.

b. There was a recent history of the mother abusing alcohol to the point where she was unable to care for the children.

c. The mother and the maternal grandmother both acknowledged that in the past the mother had a serious drinking problem which impacted on her ability to care for the children.

d. The mother had been uncooperative with the Society in the past. She was still refusing to return phone calls or attend appointments with workers.

e. In July 2010 the mother refused to participate in treatment for alcohol abuse.

f. The drinking problems and the mother’s unwillingness to work with the Society greatly impacted the family functioning.

g. There were concerns about both children being exposed to domestic violence or conflict between the mother and another partner.

h. On October 19, 2010 police advised the Society that they attended upon a disturbance between the mother and a male person who were fighting in the street. The mother was extremely intoxicated. The police said when they arrived the mother assaulted a police officer by kicking him in the groin.

i. Despite the mother’s statements to the police that she had left the children with a babysitter, police discovered that the children had been left home with no appropriate caregivers.

j. Police also reported the mother’s home was filthy and there was drug paraphernalia in the basement. The children were sleeping on filthy mattresses with no sheets or appropriate bedding. There were exposed wires in T.P.’s room on his light switch.

k. The children appeared to be well and healthy but were aware of the fighting between the mother and her friend. The children said they often heard them fight and yell.

l. A.P. said the mother spanked her on the bottom, face and head when she was mad. T.P. denied any physical discipline.

m. The children were initially placed with the maternal grandmother who had periodically been a caregiver for the children since birth.

n. The mother denied having an alcohol problem and stated she always had caregivers for the children whenever she was drinking.

o. The maternal grandmother agreed to continue to care for the children and allow no unsupervised access to the mother.

p. The mother agreed to start counselling at the Hamilton native center and agreed to work cooperatively with the agency.

q. The Society had concern that the maternal grandmother’s partner had been listed twice on the child abuse registry: once for a verified sexual abuse and once for a verified physical assault on a child. The partner refused to meet with the Society.

r. On November 9, 2010 the Society agreed the mother, the maternal grandmother and the children would reside together in a home in Hamilton, on condition the maternal grandmother would always supervise the mother, and the maternal grandmother’s partner would have no contact with the children.

s. On November 12, 2010 the Society received a report that the maternal grandmother’s partner had been seen in the home with the children.

t. On November 16, 2010 the Society received a call from T.P.’s school reporting that he had come to school in the morning quite upset. He disclosed that the mother slapped him the previous evening. He also disclosed that the maternal grandmother had not been staying with him at the mother’s home.

u. The same day A.P. privately reported that the maternal grandmother had not been living at the mother’s home. She reported physical discipline of T.P. by the mother in the past.

v. The mother had threatened to flee with the children.

w. As a result of all of this, on November 16, 2010 the Society placed both children in the care of D.T., who had been actively involved in their lives.

EVOLVING PLANS

[9]. As of November 2010 the Society’s plan was to reintegrate the children into the mother’s care once services were completed and it was safe for the children to return home.

[10]. On November 25, 2010 the mother filed an answer and plan of care in which she denied the Society’s allegation and proposed that she would enter into a voluntary service agreement; the children would be returned to her care; and the Society would withdraw its application.

[11]. On December 22, 2010 L.M. filed an answer and plan of care in which he proposed that his son T.P. be placed in his care pursuant to a custody order under section 57.1 of the Child and Family Services Act [“CFSA”].

[12]. On June 23, 2011 D.T. filed an answer and plan of care in which he proposed that both T.P. and A.P. would remain in his care [with his spouse T.O.]. He agreed with the Society’s concerns about the mother’s various problems including substance abuse and alcohol abuse. He proposed that the mother have supervised access to the children.

[13]. On August 27, 2012 L.M. brought a motion for access to T.P. which resulted in extensive materials being filed, and a lengthy motion being argued on October 5, 2012. Among the items of information and allegations disclosed during the course of that motion:

a. The child T.P. had been living with his biological father L.M. between approximately 2004 and 2008.

b. In 2008 the mother obtained custody of T.P. and L.M. had sporadic access from 2008 until the summer of 2010.

c. L.M. resumed having regular access on January 29, 2011 and he began having regular overnight access with T.P. on September 9, 2011.

d. He continued to exercise regular overnight weekend access from Friday until Sunday until June 1, 2012. For a brief period the access schedule became regular and it was suspended completely on July 13, 2012.

e. The major access issue in the early summer of 2012 was a persistent and unresolved problem with bed bugs in L.M.’s home. The Society took the position that L.M. was not being candid or realistic in addressing this problem.

f. D.T. expressed outrage and indignation that T.P. was being bitten and infested during visits with L.M., and that T.P. was unwittingly bringing the bed bug infestation back to D.T.’s home at the end of each visit.

g. The mother described a broader range of concerns about L.M. She filed an affidavit alleging a history of physical and verbal assaults; drug and alcohol abuse; and her feeling that T.P. was actually afraid to reveal that he didn’t want to have access to L.M.

h. At the October 5, 2012 motion however, Lauren Bale, the lawyer representing T.P. through the Office of the Children’s Lawyer [“OCL”] painted an entirely different picture. She said L.M.’s access had been regular and beneficial from January 2011 to June 2012. It had been terminated for no reason other than the bed bug issue. In every other respect access was going fine. T.P. was anxious to have access reinstated as quickly as possible. The OCL took the position that there was no need for access to be supervised. While emphasizing that the bed bug issue had to be resolved, she urged the court to consider that there was an underlying theme of poverty – L.M. had little control over the fact that he had little income, little choice of living accommodations, and that he appeared to be stuck in an apartment building in which other tenants were also experiencing bed bug problems.

[14]. My order of October 5, 2012 included the following terms:

a. Access was reinstated.

b. Pending resolution of the bed bug issue, L.M.’s access was reduced from alternate weekends to alternate Saturdays 10 a.m. to 5 p.m., with the child not to be taken to any private residence – especially his own – without Society approval.

c. The father was to make all reasonable efforts to secure housing free of infestation. In any event there was an absolute obligation on the father to protect the child from being exposed to bed bugs.

d. If the child returned from any visit with any sign of exposure to bed bug infestation – or if the father missed any visits or failed to cooperate with the Society’s directions – access would be suspended immediately and the matter would be returned to court.

e. The balance of the issues -- including this request by the mother for a parenting capacity assessment – were adjourned.

PSYCHIATRIC REPORTS

[15]. The father was also ordered to execute consents for release of his mental health records. This was with a view to supplementing two reports L.M. produced from Dr. Jonathan Briskin, a consultant psychiatrist.

[16]. Dr. Briskin’s first letter dated June 12, 2012 included the following information:

a. L.M. was seen for psychiatric consultation on June 8, 2012.

b. He has three children including T.P. and two younger sons with a different mother.

c. He is unemployed and supported by the Ontario Disability Support Program [“ODSP”] for what he describes as post-traumatic stress disorder.

d. He presented with an explanation that the courts were asking him for a psychiatric evaluation in relation to the issue of custody of T.P.

e. The mother had apparently expressed concern about L.M.’s mental health because he is on ODSP and not taking any psychiatric medications.

f. L.M. described symptoms of post-traumatic stress disorder which had substantially improved since he was originally given the diagnosis.

g. He had been sexually, physically and emotionally abused by a succession of his mother’s boyfriends during childhood. He began acting out at around age 16.

h. His borderline personality symptoms displayed in his teenage years, such as burning himself with cigarettes and other acting-out behaviours, had also substantially resolved.

i. He denied having difficulty controlling his temper or particular problems tolerating perceived abandonment.

j. There was no history of obsessive-compulsive disorder, psychosis, mania, social anxiety, panic or specific phobias.

k. The patient had been hospitalized twice in his teenage years for psychiatric symptoms. He has been on no medications for psychiatric symptoms for the past 10 years and feels quite stable with no need for medications.

l. L.M. had experienced several concussions from sports injuries when he was younger.

m. He smokes cigarettes, stopped drinking alcohol about six months previously, and stopped using marijuana in 2004.

n. He did poorly in school but did not have any actual learning disabilities.

o. He has been on ODSP since age 18. He has worked under the table as a roofer, carpenter and tattoo artist.

p. His presentation was appropriate and unremarkable. His speech was fluent and coherent. His mood and affect were full range and appropriate. There was no suicidal or violent ideation. Thought processes were logical and goal oriented. There was no evidence of any gross cognitive deficits. Insight and judgment were within normal limits. Intelligence is estimated to be in the average range.

q. Dr. Briskin concluded that L.M. is a man with a childhood history of significant trauma. He appears to have outgrown symptoms of borderline personality disorder which were present in his teenage years, as well as having had post-traumatic stress disorder, most of the symptoms of which have resolved.

r. He said L.M. was not interested in any further psychiatric treatment and he did not appear to be in need of any particular medication or psychiatric intervention at this time.

[17]. Dr. Briskin’s second letter dated July 24, 2012 included the following additional information:

a. The psychiatrist saw no indication that L.M. is in need of any particular psychiatric intervention.

b. He has been in good control without any psychiatric medications or other treatments for the past 10 years.

c. “In my opinion, to a reasonable degree of medical probability, I see no diagnosis that would be expected to impair his ability to function adequately in the role of parent. Having said this, I have not personally seen him interact with his children. However to my knowledge there have been no concerns raised about his previous functioning as parent to his son.”

MOTION FOR PCA

[18]. With the passage of time the Society concluded the mother was making no progress in dealing with her many problems. The Society took the position both children should continue to be placed with D.T.; L.M. should have unsupervised (bed bug free) access; and the mother’s access still needed to be supervised.

[19]. On August 27, 2012 the matter was set down for an estimated 10 day trial to be heard during the sittings of September 2, 2013.

[20]. On September 25, 2012 – at a time when L.M.’s access had been interrupted as a result of the bed bug issue – the mother brought a motion for [among other things] a parenting capacity assessment. In her supporting materials she dismissed the reports of psychiatrist Dr. Briskin as being self-serving and superficial. She appeared to support continued placement of T.P. with D.T., noting that the child was “safe, happy and bonded” in his care.

[21]. When the mother’s motion was finally argued on January 25, 2013, her request for a PCA was supported by D.T. It was opposed by the Society, L.M., and counsel for the younger child A.P. Counsel for T.P. took the middle ground: saying she was “not opposed” to the request for a PCA, but thought there might be some merit. The band representative took no position.

SUBMISSIONS

[22]. Mr. Wasserman’s submissions on behalf of the mother included:

a. The issue at trial will be where T.P. should reside. D.T. will be proposing a continuation of the status quo, with both T.P. and A.P. residing with him. Initially during submissions Mr. Wasserman said the mother would be supporting placement with D.T., and she would be asking for reasonable access. Mr. Wasserman later amended his position to clarify that the mother would in fact be asking the trial judge to place T.P. in her care.

b. He said the mother and D.T. both opposed L.M.’s request that T.P. should be placed in his care. He submitted that a parenting capacity assessment of all of the parties would be invaluable in helping the court sort out this two-way and potentially three way custody dispute.

c. He said with each of the parties – in particular L.M. – having complex histories, the court had an obligation to seek out professional assistance to provide the best possible evidence at trial as to the best interests of T.P.

d. Mr. Wasserman emphasized that this was not a delay tactic. He said there was sufficient time for a PCA to be prepared in time for the September 2013 trial. In any event, if a PCA was ordered and turned out not to be ready by the trial date, his client would commit to proceed with the trial.

[23]. Mr. Garcea’s submissions on behalf of D.T. included:

a. D.T., the mother, and even the Society all agree that T.P. is doing well in his current placement with D.T. The trial will largely be about L.M.’s proposal to disturb a successful status quo and in the process separate siblings. With the issues so important, the court has an obligation to seek out the best possible evidence – including professional evidence only available through a PCA – to protect the best interests of the child.

b. While the Society takes the position that L.M. is capable as an access parent, there is no evidence currently available to assess L.M.’s skills as a potential custodial parent. A PCA could provide such information.

c. Everyone seems to agree D.T. is a good father. If D.T. is prepared to participate in a PCA even though there are no real concerns about him, L.M. should be prepared to make the same effort and commitment.

d. Mr. Garcea agreed with Mr. Wasserman that a PCA would greatly assist the trial judge.

[24]. On behalf of T.P., OCL counsel Lauren Bale didn’t think a PCA was necessary -- but by the same token she agreed with Mr. Wasserman and Mr. Garcea that there was “no downside” to ordering an assessment. She stated:

a. A parenting capacity assessment may be appropriate where there are allegations that two of the three parents have some parental deficit.

b. The mother and D.T. have raised serious questions about L.M.’s mental health, and in this court’s endorsement of October 5, 2012 it was commented that Dr. Briskin’s two medical reports [summarized above] were “not comprehensive”.

c. While L.M. has signed authorizations for the release of other medical information, the reality is that there is no other medical information available to be produced. With L.M. having pursued such limited professional assistance with respect to allegations of mental health issues, a PCA could provide otherwise unavailable professional information.

d. Indeed Ms. Bale expressed some surprise that L.M. would not welcome the opportunity of a PCA because if he’s correct in saying he has no mental health issues, a PCA could dispel any concerns once and for all.

e. Ms. Bale argued that beyond the obvious issue of sibling contact between T.P. and A.P., there are stepsiblings on L.M.’s side that require equal consideration and a PCA could assist.

[25]. The other OCL, Kathy Baker, representing A.P., described her position as more “nuanced” – but ultimately she was opposed to a PCA. Among her submissions:

a. The mother is proposing a parenting capacity assessment only in relation to the child T.P., but inevitably A.P. will be drawn into the process. The OCL warned that involving A.P. would be needlessly intrusive and potentially upsetting for the child.

b. While the mother has initiated this request for a PCA focusing on L.M.’s alleged problems, the evidence strongly suggests that it is the mother – and perhaps only the mother – that we should be worried about. L.M. has been completely cooperative. The mother has been completely uncooperative. L.M. has acknowledged his problems and tried to address them. The mother has simply denied the existence of problems, despite significant evidence to the contrary. With so little good faith being shown by the most problematic parent, there is little reason to believe that the mother would be cooperative with either the PCA process or any recommendations flowing therefrom.

c. Indeed, Ms. Baker noted that the mother’s position has been somewhat confused and inconsistent. In her answer she proposed that the children be returned to her. At the outset of submissions her lawyer said she was supporting both children residing with D.T. and she was only asking for access. Later during argument of the motion the mother appeared to be seeking custody of T.P. but not A.P.

d. Ms. Baker expressed concern about the potential for delay, particularly given the fact that there is still some uncertainty as to exactly what custodial plan the mother will be advancing, or the extent to which she could be relied upon to cooperate with the process – since she has failed to cooperate with the Society.

e. Ms. Baker suggested there is really no shortage of evidence available for the trial judge concerning the only parent the Society is worried about – the mother. Similarly, everyone appears to agree that D.T. is doing fine with both children, so there is little new information about him which would likely become available through a PCA.

f. With the mother and D.T. being to a large extent allied in their positions, their real purpose in jointly advocating for a PCA may be strategic. Ms. Baker does not want her client A.P. needlessly disrupted by what the Society has bluntly described as a fishing expedition.

[26]. Society counsel Kory Mikalski opposed the request for a PCA. Among her reasons:

a. Notwithstanding Mr. Wasserman’s refinement of the mother’s position during submissions, the mother has previously made it clear she supports placement of both T.P. and A.P. with D.T., and she has opposed separating the siblings. Except in the context of this PCA motion, for an extended period the mother has only been seeking access.

b. The Society has no protection concerns in relation to other D.T. or L.M.

c. L.M. was enjoying significant regular overnight access to T.P. for an extended period of time – without any problems – until proximally June 2012 when a single issue arose: bed bugs in his home. The bed bug issue appears to have been addressed. The Society has no other protection concerns.

d. Apart from the bed bug issue, no other concerns have arisen in relation to L.M.

e. While the mother’s materials described L.M. as “an angry man who has used drugs and alcohol all his life” with “indications of violence and abuse”, there have been no signs of any such problems or complications during the more than two years the Society has been monitoring L.M.’s access to T.P.

f. The Society investigated two anonymous reports expressing concern about L.M. and neither required any follow-up.

g. There have been no concerns reported to the Society about L.M. by the community or collaterals over the course of the Society’s involvement with him.

h. The Society worker has met with and spoken to L.M. on many occasions and has never noted any behaviour which caused her to have protection concerns about his mental health or his ability to care for T.P.

i. While the mother proposes that the Society should be alarmed by the fact that L.M. is in receipt of an ODSP pension, the Society has investigated and is satisfied that the basis for his entitlements to ODSP is unrelated to his parenting skills.

j. While the mother alleges T.P. is fearful of L.M. and opposed to ongoing access, a Society worker deposed that she spoke to T.P. privately on several occasions and T.P. has never reported any concerns – aside from the issue of bed bugs. T.P. has consistently spoken positively about his access visits with L.M. As recently as November 2012 – after the bed bug issue was resolved – T.P. described his visits with L.M. as “awesome”.

k. T.P. appears to be doing well. He has been diagnosed with attention deficit hyperactivity disorder [“ADHD”] for which he was prescribed medication. However he has been progressing so well that recently he has not been taking his ADHD medication and his behaviour is currently being monitored without medication.

l. The child is doing well in school and will most likely be out of the independent education plan by the end of the school year. He is showing regular improvement.

m. T.P. already has many professionals in his life. Everything is under control and there is no need to complicate his life with yet another layer of professional intervention.

n. The Society’s materials set out in detail its extensive investigation of L.M. Concerns now raised by the mother [and repeated by D.T.] have all been investigated – and largely discounted. Sufficient information is available to allow the Society – and the trial judge – to deal with these issues, without any third-party expertise.

o. The Society’s main concern is neither L.M. nor D.T. The main concern is in relation to the mother who, according to Society materials: Denies her problems; Has declined to participate in recommended services; Has failed to complete an anger management course or participate in counselling; Dropped out of a six week addictions program after four sessions; Has yet to provide her consent for disclosure of her criminal record and occurrence reports [despite a court order]; and has been inconsistent with respect to attending her visits with her children.

p. The Society characterized the mother’s request for a PCA as a fishing expedition, hoping to uncover evidence which might be strategically helpful at trial.

[27]. On behalf of L.M. Mr. Maltby also opposed the request to the PCA, noting:

a. The real issue at trial is whether T.P. is to continue to reside with D.T., or whether T.P. is to reside with L.M. The Society has no protection concerns in relation to either of them. In many respects this will be a custody dispute, and all necessary evidence and information required to resolve that dispute will be available without expert opinion.

b. L.M. has made full disclosure. He has been fully cooperative with everyone.

c. L.M. has provided sufficient psychiatric evidence to support the Society’s conclusion that there are no unresolved mental health issues.

d. L.M.’s biggest challenges in attempting to advance a custody claim at trial will be situational – not personal. He is unemployed, with limited finances, and with limited control over his accommodation. He is only having limited access, and even though it is going well, the reality is that D.T. already has an enormous advantage by virtue of the status quo.

e. Mr. Maltby suggested that rather than ordering a PCA, it would be more helpful to significantly increase L.M.’s access between now and the September 2013 trial, to “level the playing field” and allow L.M. to prove whether or not he is able to care for T.P. In the absence of significantly expanded access, Mr. Maltby submitted a PCA would be of little benefit because there would be no opportunity for professional observation of L.M.’s ability to care for T.P. on a sustained basis.

THE LAW

[28]. Section 54 of the CFSA states:

54(1) Order for assessment

In the course of a proceeding under this Part, the court may order that one or more of the following persons undergo an assessment within a specified time by a person appointed in accordance with subsections (1.1) and (1.2):

1. The child.
2. A parent of the child.
3. Any other person, other than a foster parent, who is putting forward or would participate in a plan for the care and custody of or access to the child.

[29]. Section 54(1.4) refers to Ontario Regulation 25/07 which includes the following:

Criteria for Ordering an Assessment

2. An assessment may be ordered under section 54 of the Act, if the court is satisfied that,

(a) an assessment of one or more of the persons specified in subsection 54(1) of the Act is necessary for the court to make a determination under Part III of the Act; and

(b) the evidence sought from an assessment is not otherwise available to the court.

Timing of Assessment

3(1) A court may order an assessment under section 54 of the Act if the criteria set out in section 2 are satisfied and,

(a) the court has received evidence, held a temporary care and custody hearing and made an order pursuant to subsection 51(2) of the Act;

(b) the court has made a finding that a child is in need of protection pursuant to subsection 37(2) of the Act; or

(c) all parties to the proceeding consent to the order being made.

3(2) An order under clause (1)(c) may be made at any time during the proceeding.

[30]. Section 4(2) of the regulations sets out a non-exhaustive list of questions the court may order the assessor to address.

[31]. Court-ordered assessments by independent mental health professionals play an important role in the resolution of child welfare cases. However, they are not automatically mandated or justified in every case. In deciding whether an assessment is appropriate in a particular case, the court must consider many factors including:

a. The nature of the issues or dispute.
b. The extent to which expert opinion is required to assemble or interpret information or evidence which would not otherwise be available for the trial judge.
c. The delay that may result from an assessment.
d. The potential intrusiveness for the parents and children involved.
e. The availability of qualified assessors, and time estimates for the completion of reports.
f. Controversy which may arise about professional qualifications, methodology, and standards in the assessment field.
g. The cost of assessments in an era of increasingly limited resources.

[32]. The limited caselaw in this area confirms that since s. 54 does not set out criteria for ordering an assessment, there is broad judicial discretion – and that discretion should be exercised very carefully when a parent opposes the assessment.

[33]. The onus is on the party seeking the PCA – usually the Society -- to establish that an assessment is reasonably necessary to assist the court in determining the issues. There must be a benefit to the court of expertise and information otherwise unavailable, and that benefit should outweigh the inherent drawbacks of the assessment process – notably, the inherent delay. Catholic Children's Aid Society v. S. (R.) 2009 CarswellOnt 5683 [S.C.J.]

34. Despite relatively recent change to s. 54 of the legislation which now permit a pre-finding court ordered assessment, courts must be cautious in exercising their discretion to order PCA’s, especially where a parent opposes the assessment. The test is not whether an assessment might be helpful; the test is whether it is “reasonably necessary to assist the court.” Children's Aid Society of Halton (Region) v. A. (K.) 2008 ONCJ 273 [O.C.J.]

35. The provisions of s. 54 and Regulation 25/07 are not mandatory. Even if the court is satisfied that the statutory and regulatory requisites have been satisfied by the applicant, the court is still not required to order an assessment. The court has a discretion (and should give reasons explaining the basis for the exercise of its discretion). Children’s Aid Society of Algoma v. L.(M.) 2012 ONCJ 456 [O.C.J.].

36. "There must be a benefit to the court of expertise otherwise unavailable to the court that justifies the cost not merely in terms of dollars and cents, but also in the impact upon the security of the parties and the children and the delay intrinsic in the assessment process". The test: the assessment should be reasonably necessary to assist the court in determining the issues before the court. Haggerty v. Haggerty 2007 ONCJ 279 [O.C.J.].

37. “Assessments are not a panacea. They are a tool for the court's assistance. Assessments are not intended to replace the court's duty to decide cases as between the parties and instead have the assessor fill that role. Assessments are not meant to be ordered in every custody and access dispute, nor does the result of an assessment predetermine the outcome of a case.” Haggerty v. Haggerty (supra, at paragraph 7).

38. Courts must guard against any presumption that professional reports are always necessary, or that they will always help. A parenting capacity assessment can provide very important information, if specific questions need to be answered. But invariably an assessor’s conclusions and recommendations constitute just one part of the overall evidence and analysis the court must deal with. Catholic Children's Aid Society of Hamilton v. H. (L.) 2008 474 (ON SC), 2008 CarswellOnt 76, 48 R.F.L. (6th) 298 [S.C.J.].

39. Assessments should only be used by a court as an aid or tool to assist in fact-finding and cannot alone determine the matter at trial. Children's Aid Society of Halton (Region) v. N. (R.R.) 2008 CarswellOnt 1196, 2008 ONCJ 95 [O.C.J.].

40. Assessments are not to be used as a fishing expedition. The court needs to be mindful that a PCA is not a scientific inquiry; it will often be based on hearsay evidence; and can have a disproportionate effect on the final result. Mantesso v. Mantesso (1991) 4 F.L.R.R. 128, [1991] O.J. No. 643 [Ont. Gen. Div.].

41. It is not enough for the party requesting an assessment to simply assert that the issues are complex or that the trial will likely be lengthy. While a PCA has the potential to narrow the issues and reduce trial time – controversy over methodology or the weight to be given to the assessor’s recommendations can actually create more issues and lengthen the trial. It is simplistic to suggest there is no potential downside to introducing more professionals to the process.

42. In Children's Aid Society of Toronto v. R. (J.) 2003 64125 (ON CJ), [2003] O.J. No. 2095 [O.C.J.], Katarynych J. outlined concerns about assessments including:

a. The intrusiveness and significant loss of privacy.

b. Depending on the assessor’s approach and the questions asked, the investigative process may create a presumption of pathology, overlooking reasonable explanations for responses and behaviours.

c. Conclusions and recommendations may be “grounded in bodies of knowledge that, on close scrutiny, cannot bear the weight of the opinions expressed.”

d. The power of the assessor to influence the outcome may be quite intimidating to the persons being assessed.

e. Parties participate in the assessment under compulsion. If a person named in the order refuses to undergo assessment, section 54(7) allows the court to draw any inference that it considers appropriate in the circumstances.

f. Although the objective of the assessment is to benefit the child, the process itself may have negative impacts, including delay and interference with the parent-child relationship.

43. The principles which have emerged in cases dealing with non-protection assessments under s. 30 of the Children’s Law Reform Act are, for the most part, equally applicable to s. 54 parenting capacity assessments under the CFSA. CAS of Halton v. K.A. 2008 ONCJ 273 [O.C.J.] Those principles were extensively reviewed in Baillie v. Middleton 2012 ONSC 3728 [S.C.J.], where this court concluded the preferred approach is reflected in the long line of cases which follow Linton v. Clarke (1994) 1994 8894 (ON SCDC), 10 R.F.L. (4th) 92 [Ont. Divisional Court]. The prevailing view:

a. Assessments are not to be ordered routinely.

b. Broad concepts of “it might help” or “it couldn’t hurt” don’t meet the test. Indeed, courts should be mindful of the many potential drawbacks including delay, intrusiveness and expense.

c. Assessments are appropriate only where there are clinical issues to be determined, to provide expert evidence and insight which would not otherwise be available to the court.

d. Speculation that clinical issues might exist, is not sufficient to justify an assessment.

e. Volume – the number of affidavits; the number of allegations; or the length of the proposed trial – should not be the determiner.

f. At best, an assessment will constitute only one part of the overall evidence to be considered by the court. The issues specific to the parties and the children will determine whether such professional evidence is required.

44. In CAS of Halton v. K.A. (supra) Zisman J. reviewed the caselaw and noted that assessments have been ordered to assist the court with:

a. A determination, where insufficient evidence was present during a trial, whether ongoing access was in the child's best interest.

b. Assistance in sorting out the reliability of a child's statements regarding allegations of sexual abuse.

c. Evaluating two competing plans to parent.

d. Evaluation of a parent's mental health to assist in a disposition.

45. In contrast, Justice Zisman cited cases in which assessments were not ordered for the following reasons:

a. Where there are no clinical reasons to assess the child and a hope by a parent that the assessment would show that they had changed was deemed not to be a valid reason.

b. Where parents were not consenting and there were concerns about the intrusive nature of assessment.

c. Where the request for an assessment was premature.

ANALYSIS

46. In the case at bar, I am not satisfied that a parenting capacity assessment is necessary:

a. There is already comprehensive information available about each of E.P., D.T., L.M., T.P. and A.P. – and each child’s relationship with each adult.

b. It appears to be common ground that there are no protection concerns in relation to D.T.

c. It is equally clear that there are said to be significant protection concerns in relation to the mother relating to lifestyle; substance abuse; behaviour; her refusal to acknowledge and address these concerns; her refusal to co-operate with the Society. These allegations are disputed by the mother. A trial judge will be in a position to make the necessary factual determinations, based on the ample evidence available. Expert evidence about the mother is not required.

d. Related to this, the court cannot ignore the significant evidence that the mother has been uncooperative and unreliable with respect to interactions with the Society and professionals. She has been somewhat vague and inconsistent with respect to her representations to the court. The mother makes it clear she wants the experts to take a hard look at L.M. But her lack of candor and commitment thus far leaves me with doubt about how much she’d cooperate with an assessment of her parenting skills.

e. The mother appears to be the major source of complaints concerning L.M. (with D.T. echoing her position). But the mother’s strategic and personal motives (and her fluid alliance with D.T.) cannot be ignored. The mother is making extreme allegations – about T.P. being fearful of L.M., for example – which appear to be completely inconsistent with the significant evidence and information available from multiple other sources, including the child himself.

f. The Society has investigated the allegations about L.M. The Society was quick to take a hard line when the bed bug issue arose. That problem has now apparently been resolved. The Society has been equally clear and decisive in outlining the many reasons why it does not have protection concerns about L.M. Unsupervised access has been long-standing and going well. No concerns are reported from the community or collaterals.

g. While the two letters from L.M.’s psychiatrist may not be determinative, they are reassuring, and certainly inconsistent with the mother’s bald allegation of major mental illness.

h. We already have significant – and encouraging – information about T.P. He is doing well. Very well. He is well taken care of by D.T. He is enjoying access to L.M. Contrary to the mother’s allegation, the boy’s lawyer has consistently reassured the court that T.P. is not fearful of his father, and wants to see more of him.

i. And while A.P. would not be an intended subject of the parenting capacity assessment, I agree with her lawyer that inevitably the younger sibling would get drawn into the process – and needlessly so, because we already have a great deal of information about A.P. as well.

j. Counsel for the mother, D.T. – and to a lesser extent T.P.’s lawyer – urge the court take advantage of the potential benefit of a parenting capacity assessment, at least in part because they express confidence that this added level of investigation could be completed in time for the scheduled September 2013 child protection trial. The rationale seems to be: “It might help. There’s enough time. So let’s do it. What’s the harm?” With all respect, that can’t possibly be the test. If we set the bar that low, assessments would be ordered in virtually every custody or child protection case.

k. I am not satisfied that there are clinical issues which require professional assistance for the court. I am not satisfied an assessor would provide information not otherwise available to the court.

l. In many respects, this is going to be a fairly straightforward custody/access case. In that context, I am not satisfied that an assessment is required; or that the dubious potential benefit of an assessment outweighs the disadvantages.

MY ORDER

47. Findings on consent:

a. The children T.P. and A.P. are found in need of protection pursuant to s. 37(2)(b)(ii); s. 37(2)(d); and s. 37(2)(g) of the CFSA. (Note: regarding the s. 37(2)(g) finding, I wish to clarify that “D.T. is not opposed.”)

b. Both children are found to be not Catholic.

c. Both children are found to have status with the 6 Nations of the Grand River.

48. Not on consent:

a. Motion for parenting capacity assessment is dismissed.

49. Existing order to continue.

Pazaratz J.

Released: January 30, 2013

The Children’s Aid Society of Hamilton

Applicants

– and –

E.P. (mother)
D.T. (father of A.P.)
L.M. (father of T.P.)
Six Nations of the Grand River

Respondents

REASONS FOR JUDGMENT

Justice Pazaratz.

Released: January 30, 2013