ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FS – 11-367730
DATE: 20130207

BETWEEN:

Leora Glick
Applicant

– and –

Jason J. Cale
Respondent

Jeffrey Wilson, for the Applicant
Kenneth Cole, for the Respondent

HEARD: January 31, 2013

kiteley j.

Reasons for Judgment

[1] This is a motion by the mother for an order for an assessment pursuant to s. 30 of the Children’s Law Reform Act. For the reasons that follow, the motion is granted.

Background

[2] The mother and father were married on November 16, 2008. Madelyn was born on April 27, 2009. The parents separated on April 14, 2010 when the child was almost 1 year old. The parents have very different views of the circumstances and the reasons for the separation. The mother is now 35 years old and the father is now 40 years old. The mother is a child psychiatrist and the father is an optometrist.

[3] Both parents retained lawyers after the separation. In January 2010, they implemented a parenting scheduled with the assistance of Dr. Irwin Butkowsky in open mediation. After four months, Dr. Butkowsky resigned.

[4] In March, 2011 the mother commenced these proceedings. In her Application, the mother sought custody of Madelyn and asked for various financial orders. She did not ask for an order for an assessment but the Application was subsequently amended to make that request.

[5] In his Answer dated April 28, 2011 the father asserted that in mid-March 2010 he had been asked not to institute court proceedings because the mother was finishing her medical resident Board examinations and he was shocked to learn that the mother had launched the proceedings. The father had offered to return to open mediation with Dr. Butkowsky but suggested that their lawyers should participate “to clarify the issues and set an agenda”. He asked for joint custody and a shared residential schedule. He asked for an order for an assessment pursuant to s. 30 of the Children’s Law Reform Act.

[6] On September 14, 2011, the parties and counsel attended a case conference.

[7] On March 14, 2012, the father brought a motion for an order that the matrimonial home be sold. The parties resolved that issue with a consent order for sale. The mother brought a motion for temporary custody of the child but that did not proceed. Stewart J. heard submissions on the mother’s motion for an order for an assessment and on the father’s motion to expand his time with his child. Stewart J.’s endorsement included the following:

Madelyn will soon be 3 years old. Although the materials filed by the parties on these motions contain certain statements and allegations that demonstrate a degree of acrimony and bitterness toward one another, they do not reveal a pattern of conduct that would indicate such a degree of conflict between them that it is incapable of resolution.

The parties are educated, intelligent people who have demonstrated a shared love and caring for their daughter and a concern for her welfare. In my view, this record does not establish a level of clinical issues, concerns or pathology to warrant the delay, disruption and cost that the performance of an assessment would entail. Having arrived at that conclusion, however, I am of the additional opinion that the parties would benefit from the assistance and advice of a skilled professional – either Dr. Irwin Butkowsky (with whom they have engaged in open mediation) or another individual to be agreed upon by them – to assist them in improving their communication, lessening their conflict and helping Madelyn to adjust to the changes and stresses of her young life. I observe in passing that the participation in such a process by the parties with counsel in attendance is unlikely to achieve any of these objectives, and the mere fact that the Applicant is a child psychiatrist should not result in any advantage whatsoever to her in what is designed to be a balanced, personal and collaborative process characterized by mutual respect. Accordingly, the motion for an order that an assessment be conducted is dismissed, but without prejudice to the entitlement of either party to bring a fresh motion seeking that same relief upon better and further material. In that regard, I would expect that the refusal by either party to participate actively and enthusiastically in continued mediation/parental counseling would be a significant factor in establishing that there is no adequate alternative recourse available to assist the Court and the parties in dealing with the ongoing custody and access issues short of the performance of an assessment.

I now turn to the requests made by the Respondent for adjustments to his access schedule. The concerns expressed by the Applicant about behavioural issues displayed by Madelyn following overnight access makes me loathe to make any further provision for additional overnight access at this time. However, it appears to me that it would be in the best interests of Madelyn to permit modest adjustments to the Respondent’s access schedule, as follows . . .

[8] In the formal order, the mother was required to consult with the father on all decisions relating to the child’s education, health, religion and recreational programs and activities and to inform all of the child’s caregivers that the father had the right to obtain information about the child. Stewart J. also increased the father’s parenting time with the child and directed that civic and religious holiday time would be shared 50-50 in a manner to be agreed upon.

[9] Sometime after the attendance before Stewart J., the parents became involved in closed mediation with Dorete Sivkin. In an email to counsel dated November 13, 2012, Ms. Sivkin declared an impasse in the mediation process after only four months. She offered to provide suggested options for the parents if counsel agreed. It appears that she did provide suggestions but since that process was closed mediation I do not take into consideration any evidence by the mother on that issue.

[10] The mother brought a motion for an order permitting her to take the child to Florida for a week in December 2012. It was resolved on consent although each parent felt s/he had had no choice but to capitulate to the demands of the other.

Positions of the Parents

[11] The evidence filed in connection with the mother’s second motion for an assessment consists of the following:

(a) Mother’s Application dated March 30, 2011;

(b) Father’s Answer dated April 28, 2011;

(c) According to the notice of motion:

• affidavits filed in respect of the motion and cross-motion in February and March 2012: affidavits of the father sworn February 2 and 19 and March 8, 2012; affidavits of the mother sworn February 16, and March 1, 2012; affidavit of the father’s sister sworn February 18, 2012; affidavit of the mother’s father sworn February 27, 2012;

• affidavit of the mother sworn November 18, 2012 filed in respect of the motion returnable December 11, 2012 in respect of the motion by the mother to enable her to take the child to Florida;

(d) However, the confirmation form differed and accordingly I have reviewed and relied on the following affidavits filed in respect of this motion: affidavits of the mother sworn January 8 and January 20 and January 30, 2013; affidavit of the nanny sworn January 7, 2013; affidavit of Mr. Wilson’s legal assistant sworn January 9, 2013 attached to which are cv’s of the two proposed assessors; affidavit of the wife’s former counsel (Charlotte Murray) sworn January 22, 2013; affidavits of the father sworn January 17 and January 29, 2013.

[12] Mother’s affidavit sworn January 30, 2013 was admittedly out of time for a motion returnable January 31st. Mr. Cole responded to two aspects of it namely that he did not know that the child had had a session with Dorete Sivkin and that that was contrary to their mediation agreement. He also commented on the evidence of mother that the nanny had reported on a recent event. I agree with counsel for the father that the evidence is hearsay and late. It would be unfair to the father for me to rely on that evidence.

[13] Counsel for the mother takes the position that the ongoing conflict between the parents justifies an order for an assessment. At paragraph 19 of her affidavit, she said that “I am certainly not capable of professionally advising this court of the clinical issues” and she went on to relate her experiences. In paragraph 14 of his factum her counsel lists 12 areas which he says demonstrates the continual state of conflict over parenting and access arrangements including:

(a) the child’s needs with respect to education and social development;

(b) the child’s ability to cope with transitions in parental access arrangements;

(c) allegations by the father that mother has made arrangements for the child to spend time with her peers when that is not in the child’s best interests and that such decisions are a reflection of the mother’s emotional problems or parenting difficulties;

(d) allegations by the father that mother is unwilling to recognize him as a capable co-parent;

(e) the mother’s view that the father has fabricated evidence and paints her in a complete distortion of reality which leaves her to question his state of mind and the impact on his parenting of the child.

[14] In response, counsel on behalf of the father takes the position that: (a) there has been conflict but blames the mother for it; (b) the conflict has not primarily focused on the child but is the direct result of mother’s continuous unwillingness to recognize him as a capable co-parent; (c) he is willing to have discussions about the child with the mother but she refuses; (d) she does not consult him on decisions notwithstanding the order by Stewart J. that requires her to consult on all major decisions; (e) there are no clinical issues or pathology; (f) in the absence of clinical issues or pathology, the communication issues are not sufficient to warrant an assessment; (g) the assessment is an intrusive process that will be extremely stressful for the child; (h) the evidence relied on in this motion is not “better or further material” as required by Stewart J.; (i) an assessment would play to the mother’s strengths as she is a child psychiatrist whose extensive training would serve her well and provide her with an unfair advantage in an assessment; (j) the child does not exhibit extreme behavioural difficulties at home or at school that would warrant a costly, time consuming and polarizing assessment that would be intrusive and not in the child’s best interests.

[15] All of those can be summarized as two issues: an assessment is not required because there is no clinical issue and, if ordered, the father would be confronted with an uneven playing field because of the mother’s profession.

The Authorities

[16] The legal issue that separates the parents is whether a court has jurisdiction to order an assessment only if there are clinical issues or pathology.

[17] The relevant sections of the Children’s Law Reform Act are as follows:

s.19 The purposes of this Part are,

(a) to ensure that applications to the courts in respect of custody of, incidents of custody of, access to and guardianship for children will be determined on the basis of the best interests of the children. . .

s. 30(1) The court before which an application is brought in respect of custody of or access 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.

s. 30(2) An order may be made under subsection (1) on or before the hearing of the application in respect of custody of or access to the child and with or without a request by a party to the application.

s. 30(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.

s. 30(7) The person appointed under subsection (1) shall file his or her report with the clerk of the court.

s. 30(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.

s. 30(12) The court shall require the parties to pay the fees and expenses of the person appointed under subsection (1).

[18] In Linton v. Clarke[^1] the parents separated when the children were 7 and 3 years old. Immediately following the separation, the parents entered into a separation agreement that provided that the mother would have custody. Three years later, the mother issued a petition for divorce in London, Ontario. She claimed increased child support and sought to have the father’s right of access defined by the court. The father, who lived in Montreal, filed an answer and counter-petition claiming custody. The mother brought a motion for an order for an assessment and for an order removing the action from the trial list. The father opposed the motion and it was dismissed.

[19] In that case, there was evidence that the children were being treated at the Children’s Psychiatric Research Institute in London. The motions judge held as follows:

The children have been clinically assessed by the professional staff at the Children’s Psychiatric Research Institute and the petitioner participated in that assessment. Either party can call that evidence during the trial.

If the respondent is to pursue his claim for custody on the basis that he is able to provide a fuller, richer family life, it will be necessary for him to have his own assessment carried out by an independent expert who is prepared to attend in Montreal. Indeed, his counsel indicated that he is contemplating such an assessment.

I agree with the respondent’s contention that the staff of the London Custody and Access Project will not travel to Montreal as part of a regular assessment. If they were directed to do so, it would result in an inordinate delay and mean that this case could not proceed in January 1994.

It has become the practice to order assessments prior to trial in virtually every custody case. That is a practice that should be re-examined. The Children’s Law Reform Act specifically provides that an assessment may be ordered by a trial judge at the time of the hearing, should that become necessary. An assessment that is ordered by a trial judge and is focused on a particular area of concern would, in my view, be of greater assistance to the court than a wide-ranging report prepared without direction.

In this case the trial judge will no doubt have the evidence of the clinicians from Children’s Psychiatric Research Institute available to him, together with any assessment ordered by the respondent. If he requires a further assessment, he will be free to order such a report.

The motion is therefore dismissed without prejudice to either party to apply to the trial judge for an assessment, should that become necessary.

[20] Leave to appeal was granted and the appeal was heard by the Divisional Court at a time when the children were 12 and 8 years old.

[21] The appeal was dismissed. The Divisional Court was referred to annotations, articles or decisions by Borins J. (as he then was); Nicholas Bala; Gary W. Austin and Peter G. Jaffe of the London Family Court Clinic; by James G. McLeod; by Justice L’Heureux-Dube in her dissent in Young v. Young[^2]. The often quoted passages from the Divisional Court reasons for decision are as follows:

13. Assessments should not be ordered in all cases as a vehicle to promote settlement of custody disputes. If the legislature had intended that assessments were to be a vehicle to settle custody disputes, the legislation would have mandated assessments in all cases.

14. In my view, assessments should be limited to cases in which there are clinical issues to be determined, in order that such assessments can provide expert evidence on the appropriate manner to address the emotional and psychological stresses within the family unit in the final determination of custody. The decision of Justice Jenkins is in harmony with the principles I have enunciated. I agree with his decision to dismiss the motion for an assessment at this time.

[22] Both counsel referred to prior and subsequent decisions in their effort to establish that a clinical issue was or was not required. I will review some of the subsequent Ontario decisions beginning with those on which counsel for the father relied.

[23] In the 2003 decision in Fortier v. Oliver[^3] the father asked for an assessment of the child who was then six years old, the parents having separated when the parties were living in Alberta and the child was less than 1 year old. Flynn J. reviewed the cases relied on by the father[^4] and he specifically rejected the analysis in Parniak v. Carter (referred to below) on the basis that the judge hearing that motion had attempted to overrule Linton and had ignored the rule of stare decisis. He dismissed the motion on the basis that the father had waited three years to bring the application with no real evidence of any clinical issue, nor any material change in circumstances. The assessment would be expensive and time-consuming and it ought not to be a routine request by the warring litigants. The child had not exhibited any extreme behavioural difficulties and the assessment would be intrusive. Flynn J. was not satisfied that the assessment was necessary nor would it be of assistance to the court and it was not in the best interests of the child that it be ordered.

[24] In the 2004 decision of Sheikh v. Sheikh[^5] the parties had separated in June 2003 after a marriage of about 18 months. At the time of the father’s motion for an assessment order, the child was just over two years old and had resided with the mother since separation. The mother had been permitted by court order to vacation in England. The father brought a motion for an assessment because he believed that if the mother was granted sole custody, she would move with the child to England. The mother resisted the motion on the basis that the fundamental issue was mobility and only a trial would determine the outcome. Flynn J. dismissed the motion for two reasons. First, he relied on Linton v. Clarke and held that there was no evidence of any clinical issue on the part of the child or the parents. He also relied on the unreported decision of Rogers J. in Benatar[^6] in which the court held as follows:

The Court must be cautious in bringing these children into the assessment process. The Court must consider if there are issues of pathology that ought to be explored in the assessment. (emphasis by Flynn J.)

Flynn J. concluded that there was no evidence of pathology, nor of any significant problems with the current custody or access arrangement. He agreed with Blishen J. in Glance v. Glance[^7] in which she held that a party seeking a custody assessment is required to justify the request and to establish that it is likely to provide evidence that pertains to the welfare of the child that would not be discoverable otherwise. The second reason for dismissing the motion was the delay that would be occasioned by such an order. The application had been started in September 2003 and the motion was launched a year later. He did not want to delay the proceedings. Indeed, he ordered that the case be listed for trial in the following month.

[25] In the 2007 decision in Korkola v. Korkola[^8] the parents had separated but resided together in the matrimonial home until January 2006 at which time the children were 8 and 5 years old. The mother commenced proceedings in 2005. In January 2007, J.S. O’Neill J. declined to order an assessment pursuant to s. 30. He referred to an annotation by James G. McLeod involving the 1985 decision of Chapman v Chapman[^9]. He did not refer to Linton v. Clarke. At paragraph 43, he held as follows:

I am not satisfied that at present, a clear “clinical issue” exists that would require the expense, time, and imposition upon this family of a custody/access assessment. What does exist in this case is a great deal of acrimony between the parents, distrust, and to some degree, jockeying for parental position with respect to parenting plans. I hope that the temporary orders which I have granted with respect to spousal support, child support, the partition and sale of the matrimonial home, and the addition of an overnight visit every second Monday, will bring some much needed stability to this family, as the parents move forward in stabilizing their family issues. Stated differently, the uncertainty with respect to the results of these two December motions, more than anything else, may have fuelled the anxiety and the stress exhibited in the affidavits in relation to parenting issues. I do not believe that at present, it is in the best interests of this family to impose or project onto the scene a process contemplated by a Section 30 assessment report. Accordingly, this measure of relief is denied.

[26] In the 2008 decision in Archer v. Harries-Jones[^10] the child was six years old. The father applied for an order for an assessment. S.R. Clark J. relied on Linton v. Clarke and dismissed the motion on the basis that there was no cogent evidence as to what the clinical issues were that required investigation; the issue at trial of joint custody versus sole custody was a question of fact and an assessment might be helpful but not required; an assessor’s expertise would be necessary only if clinical issues exist outside the normal give-and-take of custody and access disputes decided on a daily basis by the court; an assessment would be an overreaction, expensive, intrusive and of little value to the court; cost is not determinative but an important factor and the applicant was unrealistic in thinking that the investment in the exercise would somehow be “a panacea to the court’s seeing these issues his way”; and the most significant practical reason for not ordering an assessment was the delay that would be occasioned. The court noted that the parties were so entrenched and unyielding in their respective positions that nothing short of a trial would do. The court reflected surprise that any goodwill was left that would allow them to salvage a shared parenting regime and had expressed the view that efforts ought to have been made to have the Office of the Children’s Lawyer involved.

[27] In the 2012 decision of Baillie v. Middleton[^11] the parents had separated in 2008 when the child was two years old. In the four years since separation, the parties had effectively equal time-sharing without a separation agreement or court order. Geography had become an issue with the father alleging that the mother had not complied with an agreement that she would move from Hamilton to Burlington and he would move from Mississauga to Oakville. The mother denies that there was any such agreement. The father raised a number of concerns arising from the equal time-sharing regime and the mother identified areas of conflict. The father asked for an assessment. Pazaratz J. extensively reviewed the two lines of cases as to whether a clinical issue must be demonstrated before an assessment would be ordered. He preferred the “long line of cases” which followed Linton v Clarke which he summarized as follows:

(1) Assessment are not to be ordered routinely;

(2) Assessments are not to be ordered routinely as a vehicle to promote settlement of custody disputes;

(3) A court should not order an assessment simply to obtain an apparently impartial third party’s opinion on what is in a child’s best interests;

(4) The use of an assessor’s report simply because it might be helpful to the court is an overarching use of expert evidence;

(5) Assessments should be limited to cases in which there are clinical issues to be determined, in order that such assessments can provide expert evidence on the appropriate manner to address the emotional and psychological stresses within the family unit in the final determination of custody;

(6) Clinical issues have been loosely defined as being “those behavioural or psychological issues about which the average reasonable person would need assistance in understanding . . not limited to psychiatric illness or serious psychological impairment”;

(7) Allegations of parental alienation or an inexplicable rift between parent and child may warrant a s. 30 assessment;

(8) Age may be important. Where the case involves a young child – whose views and preferences may be given limited weight – and where the young child is not experiencing behavioural difficulties, an assessment may not be appropriate in the absence of significant clinical issues;

(9) General allegations of parental misbehavior – without credible evidence to substantiate those concerns – will not warrant an assessment, in the absence of distinct clinical issues;

(10) Speculation that clinical issues might exist – or might arise (for example, in the context of a mobility dispute) – are not sufficient to justify an assessment;

(11) There must be some reason to expect that the assessment will add to the evidence; there must be some evidence that the dispute is so intense as to prevent all the relevant factors coming out, or that there appears to be a parent/child problem that requires expert analysis and/or explanation, or finally, that the assessment is necessary to allow the parties to understand the needs of the child and the need for co-operation;

(12) The mere fact that the parties are engaged in a high-conflict custody dispute does not, in itself, justify ordering an assessment;

(13) Courts should resist any subtle influence created by the sheer volume of material – the number of allegations and affidavits;

(14) A dispute about joint custody versus sole custody is a question of fact. An assessment – although perhaps helpful – is not required in order to make this determination;

(15) The order must have a proper evidentiary basis and the paramount concern must be the best interests of the child;

(16) Expert evidence should not be routinely required to establish the best interests of the child;

(17) An assessor’s expertise will be necessary only if clinical issues exist outside the normal give-and-take of custody and access disputes decided on a daily basis by the court;

(18) A court should not delegate its duty to determine what parenting arrangement is in a child’s best interests to an assessor. An assessment – if appropriate – is merely one factor;

(19) 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 that the reasons for requiring the assessment more than offset any harm that might be incurred by ordering the assessment;

(20) Many children in custody disputes have already been exposed to a great deal of stress, disruption and exposure to professionals. Courts must consider whether an additional layer of investigation can be justified;

(21) Delay is a particular concern where prospects of settlement appear remote, or where no “middle ground” appears viable. 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;

(22) The burden is on the party requesting the assessment. They must establish that there is a need in this case for the type of information that only an expert can provide; information that would not otherwise be discoverable. A court should not order an assessment over a party’s objections unless the person seeking the assessment can establish a purpose for the assessment other than simply providing another person to decide the case or obtaining another point of view on what is in the child’s best interests;

(23) An assessment is not to be used as a fishing expedition, or a strategic fact-finding exercise by one parent hoping to discover evidence favourable to their position;

(24) The cost of the assessment will usually be an important consideration, although no necessarily determinative. But affordability can be a complex issue and a difficult cost-benefit analysis is required. How much will the expert evidence really help the Judge? What are the financial (and other) implications of delay? And how much would an assessment help the parties avoid (or simplify) a trial?

(25) It is not sufficient for one of the parties to simply state than an assessment should be ordered because that party is prepared to fund the costs;

(26) If an assessment is ordered, the court should identify what clinical issues the expert is to investigate; what type of information that the court is looking for in order to make a decision. It is also desirable to set out whether the assessment ought to be conducted by a psychiatrist, social worker or psychologist and whether testing is expected to be part of the process.

[28] Pazaratz J. also referred to the 2006 Ontario Court of Appeal decision in Ursic v Ursic[^12] and to the decision by Mulligan J. in Jonkman v. Murphy[^13]and concluded that the Court of Appeal had not departed from the “clinical issue” approach.

[29] Although neither counsel referred to Ursic v. Ursic, given the reference to it by Pazaratz J. and Mulligan J. and given that it was the only Court of Appeal decision mentioned, I have considered it. At the outset of the trial dealing with custody of a child who was not yet three years old, both parents asked the trial judge to order an assessment report. He refused and proceeded with the trial. The mother appealed from the trial judgment. In granting a stay pending the appeal, Gillese J.A. had made a consent order that revised the terms of access. The parties agreed to mediate their dispute before Lang J.A. and they agreed to an assessment report which would recommend a parenting plan. The mediation did not resolve the dispute. The assessor delivered an interim report and later a final report both of which were filed as fresh evidence on the appeal. The Court of Appeal dismissed the appeal and held as follows:

33. Third, before the trial began, both parties asked the trial judge to order an assessment report on [the child]. The trial judge refused their request, and proceeded with the trial. Although a trial judge has discretion whether to order an assessment, and although the trial judge in this case no doubt thought a speedy trial was in everyone’s best interests, I expect an expert assessment of [the child] before trial would have been useful both to the court and to the parties. I can do no better than repeat the words of Gillese J.A. in her decision on the appellant’s stay motion:

In particular, in a situation where there is a high degree of conflict and the child is but a toddler. [sic] This is a situation that cries out for expert assessment and the benefits such information could give trial judge. While assessments are the discretion of the court, it may have been an error to refuse to order one where such expert testimony would be of such use and need to the trial judge.

As is apparent from my reasons, I have found the expert assessment of [the child] prepared after trial of great assistance in deciding this appeal.

[30] I turn to the cases on which counsel for the mother relied. In the 1996 decision of Kohlfurst v. De Oliveira[^14] the child was just over four years old and Sheffield J. dealt with motions by both parents involving custody or joint custody and access, a mobility issue, whether he should order an assessment, and child and spousal support. He held as follows:

14. I also considered the request for assessment and I am of the view that in this case – and again, I have read the decision in Linton v. Clarke (citation omitted) – that this is a case where the court may very well benefit from an assessment; not only the court but the parties themselves may very well benefit. I have touched on it earlier that there is some suggestion of stress being noted in the child’s life and in his behaviour that may very well be a result of the parents’ present inability to communicate each with the other in a civil manner. I am not certain that an assessment would be able to address all of their needs in this regard but I do believe it is a good starting point. I am of the view that there are enough references in the material filed from which I think it reasonable to conclude that there are sufficient signs of emotional and psychological stress, not only in the child’s life, but, in the life of the whole family unit, to suggest that the family as a whole may benefit from an assessment, and so I am going to order that an assessment be prepared on the mother, father and child.

[31] In 1996, I dealt with a request for an assessment in Goldberg v. Goldberg[^15]. The children were 14 and 12 years old. Without referring to any of the authorities, I held as follows:

40. I order that there be an assessment of the needs of the children with respect to access for these reasons:

(a) . . . There is no evidence whether there is or is not a clinical issue. In any event, while it might be desirable from a resources perspective to invoke assessments only when there is a “clinical issue”, the absence of same does not preclude it;

(b) the husband has requested an assessment for many months. He deferred to the appointment of the Office of the Children’s Lawyer. He remains adamant that his wife has manipulated the children. An assessment should shed some light on that issue. I do not mean to direct the assessor to investigate this issue. I mean only that the extent to which the children are or are not under the control of their mother in formulating their views and preferences may be a by product of the process;

(c) the conclusions and recommendations of the assessor may have an impact on the ability of the parents to resolve the issue of access without a trial. In this highly conflicted situation, any assistance to resolution will be in the best interests of the children.

[32] In the 2000 decision in Levine v. McGrath[^16], the circumstances were “very unusual”. In making an order for interim interim custody of a 10 year old in favour of the father in London, Ontario in the face of an agreement that the older daughter would remain with her mother in Toronto, Heeney J. also ordered an assessment pursuant to s. 30 (that had not been requested by either parent) because he concluded at paragraph 17 that it would:

serve to obtain, in a subtle and sensitive manner, [the 10 year old’s] true wishes without overtly involving her in the litigation process. While it is difficult to say whether a clinical issue presents itself at this early stage, the fact that she has given strong and conflicting views each way does present a cause for concern. This is an unusual and difficult case, and an assessment can certainly serve to shed some light on the issues to assist the court in its final determination. At the very least, the conclusions and recommendations of an assessor may assist the parents in resolving this case without the need for a contested trial, and this is obviously in the best interests of the children and their parents: see Goldberg v. Goldberg (1996) 1996 8100 (ON SC), 26 R.F.L. (4th) 99 (Ont. Gen. Div.).

[33] In the 2002 decision of Parniak v. Carter[^17] the child was five years old at the time of the hearing of the father’s motion for an order requesting the involvement of the OCL or an assessment under the Children’s Law Reform Act. Kukurin J. considered Linton v Clarke and concluded that while a clinical issue may be an excellent reason for a court to order an assessment, it was not the only reason. He went on to refer to other advantages including the neutrality of the assessor which makes the report more palatable to each side and contributes to a possible resolution; the recommendations that are helpful to the parties, to their counsel and to the court; the expert opinion on issues may be helpful to judges who may be deficient in the areas of expertise of such assessors; that reports although often in hearsay form, provide information not otherwise available to the court. He noted that for those who regularly review assessment reports, the contents occasionally cast an entirely different light on the allegations of the parties and more importantly, are more inclined to be focused on the child than are the allegations of hostile litigants. He observed that the information in an assessment report may help the court to come to some decision on the credibility of one or the other litigant. He concluded as follows:

21. . . . Overall, assessment reports can provide a better understanding of the dynamics operating in [sic] family that is before the court – a family whose members in most cases are complete strangers to the presiding judge.

22. Although assessments should not be ordered in every case, neither should they be limited to those cases where “clinical issues” are involved. In absence of specific statutory criteria, the court has to weigh the factors in any particular case in deciding whether an assessment report should be prepared. Delay occasioned by the report may be a factor in the decision. Certainly, a judicial estimation of whether a case is not bona fide or extremely tenuous may contra-indicate an assessment.

[34] The court went on to note that the father had asked alternatively for an order pursuant to s. 112 of the Courts of Justice Act appointing the OCL. Kukurin J. analyzed the differences between s. 112(1) and s. 30 of the Children’s Law Reform Act and ultimately made an order pursuant to s. 112 in which he asked for a social work assessment report which, in his experience, had been “almost invariably helpful”.

[35] In the 2003 decision of Kramer v. Kramer[^18] the children were approximately 12, 10 and 8 years old. The parents had separated in 1998 when the children were 7, 5 and 3 years old. The father asked for an assessment pursuant to s. 30 for purposes of addressing the access issues. The mother favoured counseling over an assessment. The court considered Linton v. Clarke and held as follows:

34. If this statement means that an assessment may only be ordered where there is evidence of some psychological or emotional stresses, then I disagree with the court in Linton. Even if I could precisely define the words “clinical issues” I would not give s. 30 such a narrow interpretation. There is no such restriction contained in the words of s. 30 of the CLRA.

[36] In making the order for an assessment, Henderson J. preferred the approach in Parniak v. Carter at paragraph 22 quoted above. He held as follows:

43. Can this problem be readily resolved by the court without the assistance of an expert assessment? If the only issue was when and how to exercise access, I would agree that there would be no need for an assessment. However, in my opinion the dispute in this case is much more complicated. There is considerable evidence that leads me to believe that the parties’ inability to exercise access in a peaceful manner may be caused by, or be causing, significant emotional problems.

[37] In the 2004 decision of Osmak-Bonk v Bonk[^19] the children were approximately 10 and 11 years old at the time of the hearing. The events leading up to the motion by the father for an assessment are unique. I focus on the question as to whether “clinical issues” are required as was argued by counsel on behalf of the mother. P.W. Dunn J. referred to Tamm (Oddy) v. Oddy[^20], and to Linton v. Clark, Glance v Glance. At paragraph 8, P.W. Dunn J. noted that if a clinical issue were required, it would include “instruction on how parents are to recognize emotional and psychological stresses in their children, with a strategy of how to alleviate them”. The court considered the issues of delay, cost and intrusiveness and ultimately granted the order.

[38] In the 2006 decision in Stewart v Stewart[^21] the children were 15 and 12 years old. They resided with their mother. The father asked for an order for an assessment that was opposed by the mother. Perell J. observed as follows:

9. I cannot say based on the competing affidavits (which have many problems of bias, hearsay, and oath helping), whether this is a case of Parental Alienation Syndrome, but, in this very nasty case, the two salient and tragic facts that are clear and that everybody agrees are true are that [the children] want nothing to do with their father at the present time and that they have rejected his overtures to reconcile and have any relationship with them unless he agrees to their condition that he attend counseling.

10. What I can say is that whether or not this is a case of Parental Alienation Syndrome, it is a case where the court would be much assisted by an assessment under s. 30 of the Children’s Law Reform Act. The court would be assisted in coming to its own decision about the needs of the children and about Mr. Stewart’s ability to satisfy those needs. The court would be assisted by an assessment in formulating an order in the best interests of the children. For these reasons alone and for the reasons that follow, I do not agree with the arguments advanced by Ms. Stewart.

11. In particular, contrary to her submissions, it is not the case that there is no evidence of any clinical issues. If clinical issues may be taken to refer to behavioural or psychological phenomena that are outside the experience and knowledge of a lay person or if clinical issues may be taken to refer to behavioural or psychological pathologies requiring diagnosis and treatment, then there are numerous clinical issues in this case that would justify an assessment.

12. Further, given that the fundamental issue is access (and not custody) and given the traditional wisdom and policy that it is in a child’s best interest to have a relationship with both of his or her parents, the fact that the children are 12 and 15 ½ years old is not grounds to preclude this assessment; indeed it is a reason for it, because the problem of parental alienation concerns a relationship that goes beyond the custodial years. Therefore, I am granting Mr. Stewart’s motion for an order that Dr. Irwin Butkowsky be appointed to conduct an assessment. The parties shall share equally the costs of the assessment.

[39] At paragraph 19, he concluded that an assessment would be helpful and necessary to answer “such clinical questions” as the nine he enumerated, all of which boiled down to the relationship between the father’s nature and the emotional and other needs of the children. Because he found that there were clinical issues, he concluded that it was not necessary for him to make any comment about the debate in the case law about whether an assessment could be ordered in the absence of a clinical issue.

Analysis

[40] I start with whether a “clinical issue” is required before an order for an assessment is made. In my view, it is not for four reasons.

[41] First, there is no such criterion in the statute. Nor is there any other part of the Children’s Law Reform Act on which such a prerequisite could be based.

[42] Second, while the Divisional Court in Linton was clear that a clinical issue was a requirement, one must look closely at the facts of the case. That decision is notable for the following features. The action was on the list for trial. An order for an assessment would result in the delay of an imminent trial. Furthermore, it would result in an unusually long hiatus because the father lived in Montreal. The Children’s Law Reform Act was proclaimed in force December 31, 1991. In the period between then and December 1994 when the Divisional Court made its decision, there seemed to be judicial resistance to what appeared to be the pervasive phenomenon of ordering assessments frequently and the concern that that trend had to be reversed. There was consensus amongst the four judges involved that the trial judge was in the best position to decide whether an assessment ought to be ordered, without regard to the delay that that would entail at a critical point in the proceedings. There also appeared to be an expectation that the father could engage his own assessor without court order, an anomaly that is not explained. Interestingly, there was expert evidence available from treating professionals as to the clinical issues that the children demonstrated. Although those clinical issues were not described, it stands to reason that the children would not have been involved with the CPRI if they were not experiencing clinical issues. Although the Divisional Court held that clinical issues were a prerequisite, the court nonetheless upheld the motions judge without regard to those very clinical issues.

[43] Third, in the recent decision of the Court of Appeal in Ursic, the Court made no reference to Linton or to the question of a clinical issue. The Court of Appeal accepted an endorsement made by Gillese J. on the stay motion in which she observed that the failure on the part of the trial judge to have responded to the parents’ request at the outset of the trial for an assessment may have been an error. Furthermore, the Court of Appeal found that the assessment reports prepared between the trial and the hearing of the appeal were of “great assistance in deciding the appeal”. The Court had an opportunity to address the long standing discussion about the necessity for a clinical issue as a pre-requisite and chose not to do so. I infer from its silence on that issue, that it does not consider a “clinical issue” as a pre-requisite.

[44] The fourth reason has to do with the identification of a clinical issue. I note that Master Nolan (as she then was) provided a definition in Tamm v. Oddy[^22] as follows:

I am unaware that there has been any judicial interpretation of the meaning of “clinical issues”. In the ordinary sense, clinical issues would appear to refer to those behavioural or psychological issues about which the average reasonable person would need assistance in understanding. The professional knowledge and skill of an assessor, usually a psychologist or a social worker, could assist the court in understanding the unusual behaviour of the children or the parents involved. “Clinical issues”, in my view, are not limited to psychiatric illness or serious psychological impairment of any of the parties or children involved.

As indicated above at paragraph 37, P.W. Dunn J. provided his own definition of “clinical issues”. At paragraph 38 above, Perell J. also addressed that term.

[45] With due respect to those suggestions, none provides a basis upon which a judge could determine if there was a “clinical issue”. Furthermore, judges are not trained to identify “clinical issues”. No doubt we have views based on the evidence that a family is dysfunctional. A judge might suspect that one of the parents is paranoid or depressed. But judges have no expertise in determining when dysfunction becomes “clinical” or in identifying clinical features of mental illness. I share the view expressed by Gary W. Austin and Peter G. Jaffe (then both at the London Family Court Clinic) in the annotation that appears in the reasons for decision of Linton in which they query whether judges can agree on what a clinical reason might be.

[46] For all of those reasons, I find that the presence of a “clinical issue” or “issues of pathology” is not a pre-requisite for the making of an order pursuant to s. 30 of the Children’s Law Reform Act.

[47] I turn to the criteria that should apply. In his reasons for decision, Pazaratz J. summarized what he considered to be the applicable principles which I have listed in paragraph 27 above. Of those 26, there is some overlap which I disregard. Of the 26, seven of them (5, 6, 8, 9, 10, 17 and 26) refer to the need for a “clinical issue” and I do not accept those as pre-requisites. Except for items 11 and 22 (with which I agree) the remainder are primarily negative criteria: i.e. when not to order an assessment.

[48] I have endeavoured to provide this non-exhaustive list of criteria which might assist a judge in deciding whether to order an assessment:

(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 (including education, religion, health, and activities) without intervention by a court?

(c) Without defining “high conflict”, 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 OCL to become involved and appoint a lawyer to act for the child?

(k) Are there other challenges in the family such as whether the family home must be sold? If those challenges are resolved, will the family dynamic be improved and avoid the necessity of an assessment?

(l) What is the basis upon which the moving party relies? Is it essentially a mobility case on which the court must hear evidence? Is the issue custody or access?

(m) What is the estimated cost? Do the parents have the financial resources to pay that cost?

(n) Will the assessment cause delay that is not in the best interests of the child? In considering the impact of delay, is it more likely than not that the delay necessarily involved in an assessment will enable the parents to have a better understanding of the family dynamic and arrive at a resolution without a trial?

(o) Is an assessment in the best interests of the child?

[49] I will now apply the foregoing to this family. As indicated above, counsel for the father raised a variety of issues all of which boil down to there being no clinical issue and the “level playing field” issue. Having found that a clinical issue is not a pre-requisite, I turn to whether the evidence does support an order for an assessment.

[50] It is not necessary to determine whether there has been a change in circumstances since Stewart J. dismissed the motion for an assessment. I am however mindful that the circumstances have deteriorated since her order in March, 2012. The following are the factors which point to the necessity of an assessment:

(a) The parents entered into closed mediation with Dorete Sivkin. In November 2012, after working with the parents for four months, Ms. Sivkin resigned. Dr. Butkowsky had resigned after four months in the period prior to the motion before Stewart J. Without trying to identify the reasons for the termination in each case, the bottom line is that interventions of a voluntary nature with two professionals did not succeed in accomplishing much. In view of the lack of progress with a voluntary course of action, an involuntary route (i.e. a court ordered assessment) must be considered;

(b) While the parents were able to agree on the vacation time for December, 2012 and for March 2013, it was after extensive (and expensive) communications between counsel and in the shadow of a motion. A review of the correspondence between counsel (to which both parents referred) demonstrates that this is a high conflict case. Indeed, it appears that there has been parental conflict since the child was born almost four years ago;

(c) The child is almost four years old. Her mother placed her in nursery school this year, with much opposition from the father, partly because he says he was not consulted as directed by Stewart J. The child will attend junior kindergarten in September 2013. Mother has identified the local public school and a parochial school although she says they agreed before they separated that their child would attend a parochial school. The father insists that he has not been consulted. This will undoubtedly be another battleground. It is a decision that should be made once only and early enough that the options remain open. Having a trial judge or a motion judge decide the school at which a toddler will attend should only be the last resort. An assessment may well pave the way towards consensus on this very important and imminent issue or provide evidence which will assist a trial judge in making a decision.

(d) Based on the affidavits, the issue appears to be the apparent differences between the parents as to whether the parents each have the capacity to identify the child’s needs and develop and implement a strategy to meet the child’s needs. That is consistent with the purpose of a s.30 assessment.

(e) These parents are well-educated and intelligent. While each appears to be committed to his or her position, an assessment may well provide the break-through that one or both of them needs to alter their current approach to the other and to parenting. An assessment is necessary to allow the parents to understand the needs of the child and the need for co-operation.

(f) I was not given an estimate of cost of an assessment. Based on the evidence of their respective means, cost is not an obstacle.

(g) At almost age 4, this child is not in a position to express views and preferences. Counsel appointed by the OCL is not an alternative.

(h) If I were the trial judge, I would find an assessment to be of great assistance in deciding the parenting issues.

(i) It is in the best interests of this child than an assessment be conducted both to promote settlement and to provide evidence for the trial judge.

[51] I turn to the second key submission advanced on behalf of the father, namely that an assessment would be unfair to him because the mother’s psychiatric training and skills means that an assessment would not be a level playing field. Mother has had years of study and training in child psychiatry. She succeeded in her exams in the spring of 2011.

[52] I accept that the father has this concern. I do not mean to dismiss it. However, I am not persuaded that that is a reason not to make an order for an assessment. The father does not challenge the mother’s evidence that she has had no training or experience in clinical assessments. The assessor proposed and to whom Mr. Cole does not object is not a psychiatrist but a social worker. I expect that the assessor will review these reasons for decision and, along with her own inquiries, will appreciate that concern on the part of the father. The father is an educated professional who will likely inform himself further before the assessment begins. I note as well that in his Answer, the father asked for a s.30 assessment.

Selection of Assessor and Costs of the Assessment

[53] In her notice of motion, the mother suggested two assessors, both of whom had consented to participate. If I made the order, counsel for the father agreed that Linda Popielarczyk MSW, RSW was appropriate from which I infer that he agreed that she had the “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 to satisfy those needs.

[54] There is no evidence as to the time it will take to prepare the assessment nor the cost. In motions for an order for an assessment, it is often the case that the court lacks both timing and cost information. The preferred approach is that when counsel obtain the consent of the proposed assessor, that the assessor be required to give an estimate of time (subject of course to variables that would be unknown until the assessment was under way) and an estimate of cost (also subject to those variables).

[55] Since the lack of information about timing or cost was not raised as an issue by counsel on behalf of the father, I infer that the lack of such information is not an obstacle in this case. However, s. 30(4) requires that the court not appoint a person unless the person has consented to make the assessment and to report to the court within the period of time specified by the court. In the absence of evidence as to the timing, I will impose an expectation of three months from commencement which should be more than sufficient where there is only one child who does not yet have the complicated timetable that early adolescents sometimes have.

[56] Furthermore, s. 30(12) requires the court to make an order as to the responsibility of each parent for the cost of the assessment. Counsel for the mother suggested that each pay 50%. Counsel for the father suggested that the mother pay 100% subject to possible later contribution by him. I disagree. It appears that both parents have the financial resources to participate equally in this assessment. It is desirable that both be equally engaged in the process and one of the ways to promote such engagement is by being responsible for half the cost.

ORDER TO GO AS FOLLOWS:

[57] The motion for an order for an assessment of the needs of the child is granted.

[58] Pursuant to s. 30(1) of the Children’s Law Reform Act, Linda Popielarczyk, MSW, RSW shall conduct an assessment of the needs of Madelyn Rose Cale, born April 27, 2009 and of the ability and willingness of her parents to satisfy those needs.

[59] The assessor shall submit her report to the court within three months of the commencement of the assessment.

[60] The parents shall each pay 50% of the cost of the assessment.

Kiteley J.

Released: February 7, 2013

COURT FILE NO.: FS – 11-367730

DATE: 20130207

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

Leora Glick
Applicant

– and –

Jason J. Cale
Respondent

REASONS FOR JUDGMENT

KITELEY J.

Released: February 7 , 2013

[^1]: 1994 8894 (ON SCDC), 1994 CarswellOnt 361 Ont. Div.Ct.
[^2]: (1993) 1993 34 (SCC), 49 R.F.L. (3d) 117
[^3]: 2003 CarswellOnt 5397
[^4]: Kramer v. Kramer 2003 64318 (ON SC) and Parniak v. Carter 2002 45671 (ON CJ)
[^5]: 2004 CarswellOnt 4395 S.C.J.
[^6]: June 11, 2003
[^7]: (2000) 2000 20393 (ON SC), 10 R.F.L. (5th) 276 (Ont. S.C.J.)
[^8]: 2007 CarswellOnt 1545 S.C.J.
[^9]: (1985) 1985 4969 (ON SC), 49 R.F.L. (2d) 47 (Ont. Dist. Ct.)
[^10]: 2008 CarswellOnt 6624, 2008 ONCJ 544
[^11]: 2012 CarswellOnt 8014 (Ont. S.C.J.)
[^12]: (2006) 2006 18349 (ON CA), 32 R.F.L. (6th) 23 O.C.A.
[^13]: 2011 ONSC 3917
[^14]: [1996] O.J. No. 5415 (O.C.J.)
[^15]: 1996 8100 (ON SC)
[^16]: [2000] O.J. No. 3580
[^17]: 2002 45671 (ON CJ)
[^18]: 2003 64318 (ON SC)
[^19]: [2004] O.J. No. 3614 (OCJ)
[^20]: (1997) 1997 11515 (ON SC)
[^21]: 2006 42608 (ON SC)
[^22]: See footnote 20