Court File and Parties

COURT FILE NO.: 42910/20

DATE: 2020-12-29

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: N., Applicant

AND:

A., Respondent

R., Respondent

BEFORE: Conlan J.

COUNSEL: Alla Koren, for N., the Applicant Matthew J. Armstrong, for A., the Respondent Ron Shulman, for R., the Respondent

ENDORSEMENT

Introduction

[1] This 14B Motion in writing was brought by the Respondent mother, A. It is opposed by both the Applicant father, N., and the Respondent father, R.

[2] There are two young children involved in this proceeding, X (a boy, born to mother A. and father N.) and Y (a girl, born to mother A. and father R.).

The Issues

[3] The case has been mired in acrimony and has been the subject of motion-warfare, but aside from costs there are just two narrow issues to be decided here: (i) who should conduct the Court-ordered psychiatric assessment of the mother, A., as each party has proposed someone different, and (ii) what documents should be made available to that assessor?

The Positions of the Parties

[4] The mother, A., wants Dr. Shrenik Pratapbhai Parekh to conduct the assessment. Dr. Parekh, for the last eight years (since December 2012), has been a child and adolescent psychiatrist at Grand River Hospital in Kitchener, Ontario. In addition, since January 2013, Dr. Parekh has been an adjunct assistant clinical professor at McMaster University Health Sciences in Waterloo, Ontario.

[5] Dr. Parekh is a very qualified person to do the job required here, which explains why this Court accepted him previously (though that Order had to be later set aside by me because of procedural irregularities attached to it).

[6] The father, N., proposes that Dr. Lorne Tugg conduct the assessment. Since July 2013, Dr. Tugg has been a staff psychiatrist at North York General Hospital, and he is a long-time assistant professor in psychiatry at the University of Toronto.

[7] The father, R., wants Dr. Mitesh Patel to conduct the assessment. Since 2013, Dr. Patel has, among other things, been a staff forensic psychiatrist at the Centre for Addiction and Mental Health in Toronto, Ontario.

[8] Undoubtedly, both Dr. Tugg and Dr. Patel are very qualified persons to do the job required here. This Court was not aware of their credentials and their availability when the prior Order (which was subsequently set aside) was made.

[9] On the issue of what documents should be made available to the assessor, there is some agreement among the parties, however, the mother’s counsel submits that “without-prejudice” Orders and Endorsements ought not to be considered by the assessor, while N. does not agree with that submission, and R. takes the position that the assessor should not be restricted in gathering the information required to prepare a fulsome and complete report.

Decision

The Assessor

[10] In my view, having now had the opportunity to compare three eminently qualified persons, Dr. Patel is the professional best suited to conduct the assessment, and this Court orders that it shall be him, Dr. Patel, who does so.

[11] This Court orders further that Dr. Patel shall use his very best efforts to complete the assessment, including the report, by February 1, 2021.

[12] Of course, I appreciate that Dr. Patel’s ability to meet the said deadline depends on a prompt payment of his retainer and on a cooperative effort by the parties to get to Dr. Patel the documents that are deemed necessary for his work. Thus, this Court orders that the retainer shall be paid forthwith, and the documents shall be provided without delay.

[13] At the risk of sounding paternalistic, “forthwith” means immediately. “Without delay” means as promptly as reasonably possible.

[14] Why Dr. Patel? Because the number one factor must be competence, and competence depends on experience with the subject matter of the proposed assessment, in this case whether the mother has mental health issues and, if so, how those might affect her parenting abilities.

[15] Mental health fitness assessments and psychiatric diagnoses for adults are precisely what Dr. Patel does for a living. Undoubtedly, on the first three questions that are to be answered by the assessor (see page 1 of the mother’s Motion Form dated December 14, 2020), Dr. Patel’s curriculum vitae is the best match for the task.

[16] On the fourth and final question, that pertaining to parenting abilities and adult conflict, I note that Dr. Patel has extensive experience in child psychiatric consulting, and although he may not be more qualified than the other two assessors to address that specific question, I am confident that he is also no less qualified than they are.

[17] Cost and the projected speed of the assessment process are important factors as well, though they are subordinate to the competence criterion. The evidence suggests that Dr. Patel will be more expensive than Dr. Parekh but may not be more expensive than Dr. Tugg, and the turnaround times for Dr. Patel’s report and that of Dr. Parekh are essentially the same.

[18] Overall, a consideration of both cost and time does not change my view that Dr. Patel is the best fit for the endeavour.

The Documents to be Made Available to the Assessor

[19] On the second issue, the documents, I agree with the position advanced at paragraphs 20 through 22 of R.’s affidavit sworn on December 18, 2020.

[20] This Court orders that Dr. Patel shall be at liberty to request from any party or from the Court any additional document that he thinks is necessary for his work but, at a minimum, he shall be provided with copies of (i) Dr. Notkin’s report, (ii) all Orders, Endorsements, Reasons, Decisions, and Judgments rendered in this proceeding to date, including those made “without-prejudice”, (iii) the letter from the Children’s Aid Society dated March 2, 2020, and (iv) the recording from the January 1, 2020 incident.

[21] On the issue of whether it is appropriate to produce to Dr. Patel the “without-prejudice” Orders and Endorsements, Dr. Patel is well aware of his duties as an expert witness. He has no “client” in this process. He is, in essence, the Court’s witness. He is no neophyte when it comes to the Court process. He is already well aware, and will be reminded again when he receives this Endorsement, that temporary Orders are just that, and “without-prejudice” temporary Orders are patch-work temporary solutions that are not intended to establish precedent and are often made on the basis of incomplete evidence.

[22] There is no risk that Dr. Patel’s professional work, clinical findings and psychiatric diagnoses, if any, will be improperly swayed by a temporary “without-prejudice” Order that has been made in the context of this proceeding.

Costs

[23] On costs, I may be spoken to by way of a brief Zoom conference to be arranged through the trial office. We must try to keep costs down, and that is the most economical way of proceeding.

(“Original signed by”)

Conlan J.

Dated: December 29, 2020