Court File and Parties

COURT FILE NO.: FC-16-133 DATE: 20160802 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Abdullah Sayed Shehata Karar, Applicant AND Shaimaa Mustafa Morsi Abo-El Ella, Respondent

BEFORE: Mr. Justice Robert N. Beaudoin

COUNSEL: Julius Dawn, Counsel, for the Applicant Nigel MacLeod, Counsel, for the Respondent

HEARD: By written submissions

Amended Amended Endorsement

The text of the original endorsement was corrected on April 26, 2016 and must be corrected once again. Since the release of this decision, it has been confirmed that information provided to the court was not true. That information played a critical role in arriving at my decision. Since the parties have since agreed on another assessor, the appointment of an assessor has become moot. My endorsement is further amended to remove the relevant references.

[1] On February 11, 2016, and with the consent of the parties, I ordered a family assessment pursuant to section 30 of the Children’s Law Reform Act R.S.O. 1990, c. C12. The parties could not agree on which psychologist would be retained for the assessment. In the absence of any agreement, the parties were directed to make submissions to me on or before February 29, 2016. These have now been received.

[2] According to the Applicant/father, the assessment issues in this matter include allegations of parental alienation, physical abuse, substance abuse, sexual litigation, adultery, and other mental health issues and disorders.

[3] The Applicant/father proposes that Dr. Abe Worenklein be appointed and submits that Dr. Worenklein has a breadth of experience which is fully detailed in his curriculum vitae. He maintains that Dr. Worenklein’s qualifications exceed those of the psychologist proposed by the Respondent/mother, Dr. Frances Smyth.

[4] The Applicant/father notes that Dr. Worenklein specializes in psychological assessments in the child protection context as well as contested cases of custody and that he has been declared a court expert in numerous Superior Court Family and Youth Protection Courts and in multiple jurisdictions both in Canada and in the United States.

[5] In addition to being a psychologist in private practice, Dr. Worenklein is an academic and lecturer in the Department of Psychology programs at Dawson College, Montréal, Concordia University and McGill University. The Applicant/father adds that Dr. Worenklein has numerous professional affiliations and certifications. Dr. Worenklein is located in Montréal.

[6] Bias or appearance of bias is raised as a major concern by the Applicant/father. The Respondent/mother is a medical doctor practising in Psychiatry. The Applicant/father submits that the Respondent/mother’s network of friends and colleagues could easily be perceived to interface with those of the local psychologist. He argues that the number of healthcare professionals working in mental health is relatively small in the Ottawa community and that the independence of the expert opinion evidence is integral to the reliability of the report and the integrity of the process.

[7] To avoid any possible bias or appearance of bias, he submits that an assessor, who principally works outside of the jurisdiction and has appeared as an expert in multiple jurisdictions, should be appointed in this case. Furthermore, the Applicant/father maintains that time is of the essence. The Applicant/father’s access is limited and it is taking place under supervised conditions. He argues that the longer this arrangement is maintained, it will take longer for the children’s relationship with him to normalize.

[8] For this reason, he submits that it is in the children’s best interests that the conflict in the parties be resolved as quickly as possible. Dr. Worenklein has provided written confirmation that he can commence the assessment process in late April and it can be fully completed within six to eight weeks. He can therefore complete this assessment by late May or early June. The Applicant/father submits that Dr. Smyth’s report would not be completed before the end of September at the earliest.

[9] Dr. Smyth’s estimated cost is between $7000 and $9000, as compared to Dr. Worenklein’s estimate of between $8000 and $10,000. Since both parents earn substantial income and will share the cost of the assessment, the Applicant/father maintains that the difference is not significant enough to prevent the Court from appointing the best possible, most qualified assessor to make decisions in the children’s best interests.

[10] The Respondent/mother notes that the Applicant/father has alleged parental alienation which she disputes. She, in turn, has alleged domestic violence by the Applicant/father towards herself and the children. She maintains that the clinical issues for the parenting capacity are parental alienation and domestic violence.

[11] Dr. Smyth reports that she has completed ten full custody and access assessments since 2010. Dr. Smyth has confirmed that these have resulted in settlements without the need for expert evidence at trial. Dr. Smyth has confirmed that she has provided expert testimony in court relating to other cases involving children. Her professional practice at Gilmore Psychological Services is independent while in association Dr. Alex Wienberger, an assessor who is well-known to our Court.

[12] The Respondent/mother submits that the comparative expense favours Dr. Smyth and that the timelines are not significantly different. In a letter dated February 24, 2016, Dr. Smyth confirmed that she can commence the assessment in mid-May and projects that her report can be completed within three months assuming that neither she nor the parties involved will be away for any substantial amount of time.

[13] The Respondent/mother denies that there is any basis for an allegation of conflict of interest or bias in relation to the parties, and specifically with respect to the Respondent/mother as a psychiatrist.

[14] The Respondent/mother acknowledges that Dr. Worenklein is clearly a knowledgeable well-respected psychologist. Dr. Worenklein was part of the committee that tried to introduce parental alienation as a disorder to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-V).

[15] The Respondent/mother challenges his appointment on the basis of a reasonable apprehension of bias. Given that this case admittedly involves allegations of parental alienation as against her, the Respondent mother maintains that the appointment of a neutral assessor with unqualified reliability is of central significance.

Decision

[16] I conclude that the relative cost of the proposed assessors is not significantly different and I see no material difference with respect to the timelines by which each of the assessors can have their reports prepared. Both parties have agreed that parental alienation is a significant issue in this matter. Both parties have argued that an apprehension of bias could impact the value of the assessor’s report. While the Applicant/father raises concerns with respect to the Respondent/mother’s suggested assessor, those concerns are based on speculation. There is no evidence that the Respondent/mother even knows Dr. Smyth or that they have any professional contact with each other.

[17] Dr. Worenklein was on the committee drafting the proposal to have parental alienation included in the DSM-V and he has written extensively on the topic of parental alienation.

[18] This proceeding has the potential to become a high conflict custody and access battle. An independent neutral assessor is required. I recognize Dr. Worenklein’s extensive qualifications and experience as an expert.

Mr. Justice Robert N. Beaudoin Date: August 2, 2016

Appendix

COURT FILE NO.: FC-16-133 DATE: 201600802 ONTARIO SUPERIOR COURT OF JUSTICE RE: Abdullah Sayed Shehata Karar, Applicant AND Shaimaa Mustafa Morsi Abo-El Ella, Respondent BEFORE: Mr. Justice Robert N. Beaudoin COUNSEL: Julius Dawn, Counsel, for the Applicant Nigel MacLeod, Counsel, for the Respondent Amended AMENDED ENDORSEMENT Beaudoin J. Released: August 2, 2016

April 26, 2016: The name Abo-El-Ella has been replaced by the name Abo-El Ella throughout the document. August 2, 2016: Omission occur at paragraphs 14, 15, 17 and 18 Original paragraphs 16 and 20 were deleted