2021 ONSC 5562

ORILLIA COURT FILE NO.: FC-20-18

DATE: 20210817

CORRECTED DATE: 20210827

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Dnaagdawenmag Binnoojiiyag Child and Family Services, Applicant

AND:

V.S., D.O., Curve Lake First Nation and Chippewas of Rama First Nation, Respondents

BEFORE: McDermot J.

COUNSEL: Thomas Milne, for the Applicant

Lisa M. Bowlin, for V.S., the Respondent Mother

Joy Nneji, for D.O., the Respondent Father

Scott Byers for the Curve Lake First Nation

Stephanie Sandy and Stacey Keetch, Band Representatives of the Chippewas of Rama First Nation

Julia Bailey for the child, A.S.O.

HEARD: June 23, 2021

Corrected Decision: The text of the original Endorsement was corrected on August 27, 2021 and the description of the correction is appended.

ENDORSEMENT

[1] This has been a long and convoluted road to where this matter stands today. This motion brought by the Respondent Father, D.O., is for a reconsideration of my decision made on December 16, 2020 appointing Peter Marshall to conduct a psychological assessment in respect of the father D.O. It is necessary to give a brief litigation history to bring this issue into context.

[2] These proceedings began in January, 2020 in respect of the parties’ 8-year-old daughter, A.S.O. According to the initial material filed in this matter, A.S.O. lived with her mother, but shared time with the father whenever the mother worked as he had a “right of first refusal” for child care. The major concerns in the application were in respect of the father D.O. and are expressed as his “inability to meet the basic needs of the child; an unwillingness to cooperate and engage with services; and, possible sexual abuse of the child.” The psychological assessment of the father is firstly raised in the agency’s application; it requests that the child be placed with the mother, V.S. subject to access at the discretion of the Applicant Agency (herein referred to as DBCFS) “until further assessments can be completed with regard to the mental health and stability of the father and his ability to parent in a safe manner.”[^1]

[3] In response to this request (or more accurately, perhaps, in anticipation of the request), the Respondent Father obtained a psychological assessment prepared by Dr. Mitra Gholamain of the Psychological Assessment Centre of Toronto on December 15, 2019 which concluded that D.O.’s “psychological profile falls within the normal range”. The report confirms that “[t]here is no clinical or psychometric evidence that indicates presence of clinically significant psychological symptoms” and it stated that D.O. is “able to regulate his emotional responses properly and shoulder his functional responsibilities (work, education, parenting responsibilities) adequately.” The assessor concluded that there were “no delusional and/or paranoid ideation or thought disturbances.”[^2]

[4] On February 24, 2020, Justice Eberhard heard a motion for increased access to D.O.[^3] and in her endorsement giving D.O. access in the community supervised by a Family Support Worker, she commented on the assessment provided by him in his materials. She was unimpressed by the assessment and noted that it relied “on the narrative of the Respondent Father.” She said that the report did “little more than give professional expression to the subject’s notions of unfairness in the way he has been treated.” She noted that the veracity of the Respondent Father’s narrative remained unverified by neither the assessor nor the court.[^4]

[5] Covid intervened in March, 2020, and the Respondent Father’s access became virtual only. Several conferences were heard by Wood J. and on September 4, 2020, the Respondent Father consented to a further psychological assessment and Justice Wood ordered that it take place. The endorsement provided that the “parties are to attempt to agree upon an assessor and letter of instructions by October 15, 2020”. If the parties were unable to agree, each was to pick three assessors with the court to make a choice at that time.

[6] On November, 24, 2020, the parties appeared in front of me and asked me to choose an assessor. The choices by that time had resolved themselves down to Dr. Peter Marshall from Barrie and Dr. Natasha Williams from Toronto. By endorsement dated December 16, 2020, I chose Dr. Marshall based partially upon the case law filed by the Respondent Father which was, in fact, quite complementary to Dr. Marshall, partly because Dr. Williams’ resume disclosed that she had never been involved in child protection matters and partly because she had never testified as a witness in court proceedings.

[7] Although I was also asked to provide the terms of reference for the assessment, I acknowledge that I did not. That was my responsibility, although I note that neither party provided submissions as to the terms for the assessment at that time. I had to specifically request submissions from counsel at the last argued appearance as to the instructions to the assessor and to date, no party has provided a draft letter of instructions for the assessor as part of their written submissions.

[8] Unfortunately, the story did not end there. On December 16 when I issued my decision, Ms. Salvatore, then counsel for D.O., advised that she did not believe that the matter could be spoken to in front of myself as she was intent upon appealing my decision.[^5] That was proven to be impossible as s. 121(2) of the Child, Youth and Family Services Act[^6] (the “CYFSA”) forecloses off a right to appeal an order for an assessment under s. 98 of that Act.

[9] Therefore, Ms. Salvatore decided that she would request that I “reconsider” my decision pursuant to the inherent right of a court to reconsider its own decision. That motion was not brought until March 8, 2021, more than two months after my decision. In her client’s affidavit sworn March 8, 2021, D.O. cites a number of “mistakes” that I had made in my December 16 decision, including an alleged misrepresentation as to the purposes of citing certain case law in the Respondent Father’s original submissions, misinterpretations of that case law, a failure to properly take into account Dr. Marshall’s failure to address indigenous issues and a failure to properly assess the history of Dr. Marshall’s historical record in testifying in court as well as his inexperience in conducting assessments concerning adult participants in child protection litigation.

[10] The reconsideration motion was delayed by a further motion brought by Ms. Salvatore that I recuse myself from this matter because of a comment made by me on return of the matter on March 24, 2021. My recusal would, according to her, permit a de novo hearing of the assessment issue. That motion was returnable April 16, 2021 and heard on that date. D.O. obtained another lawyer and the recusal request was withdrawn in D.O.’s written submissions dated May 7, 202. The reconsideration issue was finally argued on June 23, 2021 along with a request for me to set the terms of the assessment.

[11] All of this has impaired A.S.O.’s access to her father. According to counsel at the hearing (although this was not in any of the materials), D.O. has not seen A.S.O. in about a year. The reasons for this were unclear although the December 16 endorsement states that A.S.O. refuses to see her father; the last materials indicated that D.O.’s access had become virtual after COVID in March, 2020, and it is unclear as to whether in person access ever resumed.

Result

[12] For the reasons set out below, the Respondent Father’s motion for reconsideration is dismissed. The terms of the assessment report can be found at Schedule A to this endorsement.

ANALYSIS

[13] This motion was brought precisely because the Respondent Father cannot appeal my decision to name Dr. Marshall as the assessor in this matter. It is also apparent that he disagrees strongly with my decision as to the assessor in this matter. The affidavit filed by Ms. Salvatore in support of the reconsideration motion sounds more like a Notice of Appeal than a request for reconsideration, naming numerous alleged mistakes and oversights in my endorsement of December 16, 2020.

[14] The major issue raised by counsel for DBCFS is legal in nature: assuming I made the mistakes that father’s counsel says I made, is it appropriate that I reconsider my decision? To consider this, the court must address the criteria under which a reconsideration or revisiting of a decision entails.

[15] As well, I am asked to set out the terms of the assessment to be submitted to the assessor.

Reconsideration Issues

[16] There are several areas of jurisdiction where a court may reconsider its decision and make a new determination. Firstly, there is Rule 25(19)(b) of the Family Law Rules[^7] which allows a court to “change an order” which “contains a mistake”.

[17] The Respondent Father also relies upon the inherent jurisdiction of a Superior Court Justice to change his or her own order and suggests that I should exercise my discretion to do so because of the mistakes that he says I made in making my December 16, 2020 order.

[18] Finally, the Respondent Father raises for the first time with the court the issue of an alleged conflict of interest that the assessor that I chose, Dr. Peter Marshall, has concerning himself.

Section 121(2) of the CYFSA

[19] As noted, the affidavit filed in support of the reconsideration motion raises issues similar to what would have been filed in a Notice of Appeal of my decision. That is important because, again as noted above, there is no right of appeal of a decision to appoint an assessor pursuant to s. 121(2) of the CYFSA. I presume that the legislators who passed this statute[^8] wished decisions under s. 98 of the Act to be made summarily and without delay. They did not wish proceedings to be delayed concerning the appointment of an assessor considering the time lines under the CYFSA and they therefore removed the right of appeal of a decision concerning an assessment report. As noted in Chatham-Kent Children's Services Children's Aid Society v. B.D.G., [2009] O.J. No. 2150 (S.C.J.), this provision is constitutionally valid, and nothing forces the objecting parent from refusing to participate in the assessment or alternatively appealing the ultimate decision in the child protection litigation.

[20] This means that a motion to “change” or “reconsider” the decision should not be used as a means of appealing the decision as that remedy is specifically foreclosed off in the legislation for the reasons mentioned above. Moreover, it is clear that the court must be cautious in revisiting a decision to appoint an assessor as to do so might very well have the effect of circumventing the legislation preventing appeal of a decision appointing an assessor.

Rule 25(19)(b)

[21] The first consideration must be of Rule 25(19)(b) which states that the court can change an order which contains a “mistake”. As I mentioned above, D.O. says that I made numerous mistakes in my determination of Dr. Marshall as an assessor, including a misstatement of the purpose for which cases were filed by the Respondent Father, a misapprehension of the ability of Dr. Marshall to take into account indigenous issues affecting the Respondent Father as well as a failure to take into account Dr. Marshall’s inexperience in assessing adult issues in child protection litigation.

[22] However, the Rule is limited in effect. It is not intended to address mistakes which are issues for appeal, limiting the court’s discretion under the Rule to mathematical or clerical errors in an order. In Grey v. Rizzi, 2010 ONSC 2858, [2010 O.J. No. 4021 (S.C.J.), Boswell J. determined that Rule 25(19)(b) was restricted to mathematical or clerical errors in an order: it did not apply to jurisdictional or legal mistakes made by the justice deciding the order. At para. 37, Boswell J. stated:

Rule 25(19) does not define the type of mistakes it is intended to cure. In my view, however, the term "mistake" refers to the type of accidental slips or omissions referenced in Rule 59.06 of the Rules of Civil Procedure. It applies to circumstances where there is a mistake in the content of the order, for instance where the order contains a typographical error, a misstatement of what was actually endorsed by the court, or a mathematical miscalculation. The Rule was not, in my view, intended to apply to cases of alleged legal errors, such as the suggestion that the court exceeded its jurisdiction in making the order. Mistakes, or errors, in law are appealable errors and not subject to correction under Rule 25(19). To hold otherwise would in effect clothe Superior Court judges with the authority to review their colleagues' orders for legal errors and correct them when found. Such authority is the domain of appellate courts.

[23] See also Bompas v Henry, 2018 ONSC 7718 at para 20 where a party brought a motion under the rule claiming that the motions judge had made a child support order without jurisdiction. Henry J. stated that [at para. 20], “Challenging the correctness of an order, however, is the subject of an appeal, not of a motion under rule 25(19)(b).”

[24] Those cases are similar to the present case. The Respondent Father says that I made mistakes at law and in the exercise of my discretion to appoint the assessor. These are not clerical errors but substantive errors which would normally be the subject matter of an appeal as the Respondent Father’s counsel said she intended to pursue on December 16, 2020.

[25] I therefore do not find that the facts in this case warrant an order under Rule 25(19)(b) to change the order made as a result of any alleged mistake made by myself in naming Dr. Marshall as the assessor in this matter.

Inherent Jurisdiction

[26] The courts have held that similar principles apply where a judge reconsiders his or her own decision pursuant to the court’s inherent jurisdiction to do so. In Rickett v. Rickett, 1990 CanLII 8061 (ON SC), [1990] O.J. No. 1042 (H.C.), Granger J. confirmed that the court has an inherent jurisdiction apart from the Rules to change its own decision prior to the order being entered or issued. However, Granger J. also confirmed that this power was limited in nature, and was not intended to allow the matter to be re-argued after the matter was finally determined. At the 4^th paragraph of the judgment, Granger J. confirmed that the jurisdiction was limited to mathematical error or where the court inadvertently failed to consider an issue, especially where reasons were already issued:

In my opinion, I should avoid the temptation of tinkering with my judgment unless I have inadvertently failed to deal with a claim or made a mathematical error. If it is obvious that an error or omission has been made, counsel should always feel free to approach the trial judge and request that he or she reconsider his or her judgment in order to avoid the necessity of an appeal. On the other hand, counsel should not attempt to re-argue their case prior to the formal judgment being issued and entered. If counsel becomes aware of a decision which might be relevant while judgment is reserved, I personally would welcome being advised by counsel of such decision. If however, reasons for judgment have been released, decisions which were not brought to the attention of the trial judge ought to be left for consideration by an appellate court.

[27] Later, when asked to address the delivery of certain chattels not previously ordered, Granger J. stated that, “counsel must accept as final, subject to appeal, the reasons for judgment unless the judgment fails to deal with an issue or makes a mathematical error.”

[28] As discussed in my consideration of the Rule 25 issues above, the matters raised by the Respondent Father are not mathematical in error or a failure to deal with an issue. He has raised legal errors that he says that I made, and a failure to properly interpret the submissions of Respondent Father’s counsel. These do not fit within the jurisdiction for reconsideration as described by Granger J. in Rickett.

[29] In Hunter v. Hunter, 2005 CanLII 47756 (ON SC), [2005] O.J. No. 5571 (S.C.J.), the court considered a line of cases that went well beyond mathematical errors, permitting reconsideration where a serious miscarriage of justice would otherwise take place. In that case, costs submissions were inadvertently filed by a party in the wrong place and were not brought to the attention of the justice considering the costs issue. Gordon J. set aside his final costs award so that those submissions could be addressed. At para. 15, Gordon J. stated that “the exercise of discretion to accept jurisdiction will be considered to prevent an abuse or miscarriage of justice.”

[30] However, as stated by Granger J. in Rickett, Gordon J. did not consider that inherent jurisdiction to reconsider permitted the parties to re-argue an issue. At para. 17, the court stated that, as the costs submissions had already been made, but just not brought to the attention of the trial judge, that this was “not a matter of re-arguing a position but, rather, allowing a decision to be made on the basis of existing argument.”

[31] That is not what the Respondent Father seeks to do in the present case; he says that I made mistakes in making my original determination as to the assessor and that those issues should be revisited. That is contrary to the interests of finality where the matter was fully argued in writing. With respect, Hunter does not permit re-argument as part of a reconsideration motion even if there is some miscarriage of justice. That would be the subject matter of an appeal.

[32] This addresses the premise that when parties have argued a matter and received a decision, they deserve finality. That was codified in the CYFSA in s. 121(2). That conflicts with any request for reconsideration of a final decision. That was addressed in several cases cited in Hunter or in the submissions by the parties. For example, in Schmuck v. Reynolds-Schmuck (2000), 2000 CanLII 22323 (ON SC), 46 O.R. (3d) 702 (S.C.J.), Himel J. stated at para. 25:

It is my view that a party who wishes a reconsideration alone would have to establish that the integrity of the litigation process is at risk unless it occurs, or that there is some principle of justice at stake that would override the value of finality in litigation, or that some miscarriage of justice would occur if such a reconsideration did not take place. No such reasons exist in this case. The questions raised by counsel may be the subject of appeal. As such, I decline to exercise my discretion to reconsider any of the issues raised by the husband.

[33] In Brown v. Municipal Property Assessment Corp., 2014 ONSC 7137, [2014] O.J. No. 5878 (Div’n’l Ct.), Nordheimer J. considered an appeal of a decision of a Superior Court Justice which allowed the re-opening of argument to permit a self-represented party to enter new submissions and re-argue an issue which was previously dismissed. He noted that the discretion of a court to reconsider was limited and must be addressed with caution. At para. 25, he noted that:

I do not believe that the motion judge had the jurisdiction to proceed in the manner that he did but, even if that jurisdiction existed, it was not properly exercised in this case. In my view, the mere fact that the technical requirements for the finality of the earlier order are missing, because the order was not signed and entered, does not permit a judge to vary that order in whatever manner s/he happens to consider to be appropriate at a later date. The principle of finality, that underlies the functus officio principle, weighs against that scope of authority and that type of alteration. Parties have a right to expect that once a matter is determined by a judge, it is over. Our rules of procedure do not envisage that parties will be allowed to reargue matters, except in very narrow circumstances.

[34] Perell J. confirmed this in Millwright Regional Council of Ontario Pension Trust Fund (Trustees of) v. Celestica Inc., 2013 ONSC 1502. He noted the importance of finality in the litigation process when he stated that the court’s inherent jurisdiction to change its own order or correct it pursuant to the rules should be used “only… in exceptional circumstances given the public interest in the principle of finality to the litigation process.”

[35] This is especially so where, under statute, there is no right of appeal of the decision that was made. Again, a party cannot do something indirectly which he could not do directly. My decision, even if wrong, is not appealable, but the Respondent Father has his remedy in either not participating in the assessment process or in appealing the final judgment. The Respondent Father’s counsel, in any event, also has the right of cross-examination of the assessor, which often takes place even were the matter to proceed by way of summary judgment. These considerations militate against an order for reconsideration even if errors at law were made.

[36] As well, I do not find that the errors that the Respondent Father says I made in my endorsement constitute a miscarriage of justice which would permit the matter to be re-opened as requested by the Respondent Father. A miscarriage of justice is not a mistake at law or fact as suggested by the Respondent Father; it is something more serious such as a failure to review material filed by a party as in Hunter or a failure in ensuring a party receive fundamental justice. In the words of Himel J. in Schmuck, a mistake that I may have made in my consideration of the case law or a misapprehension of fact does not give rise to circumstances which affect the “integrity of the litigation process” where the parties had agreed to rely upon written submissions in addressing the issues in this matter. Further, the jurisdiction to reconsider does not permit re-argument of an issue without good reason. I do not find that those reasons are present here. The principle of finality overrides any interest in the father having my decision as to the assessor reconsidered in this matter.

[37] Moreover, I note that the Respondent Father did not proceed promptly, taking more than two months to bring his reconsideration motion: see Grey v. Rizzi where Boswell J. noted at para. 43 that, “But having said that, once again, a threshold requirement to the exercise of the court's inherent discretion is that the aggrieved party act with diligence once the information came to light.” In this case, the Respondent Father had stated through his counsel as early as December 16, 2020 that he intended upon appealing my decision because he felt that it was wrong; this was reflected in the endorsement from that date. It took counsel more than two months, until March 8, 2021, to bring the reconsideration motion and then it was further delayed by the father’s recusal motion which was ultimately abandoned well after argument. In my view, the Respondent Father did not act with diligence in bringing this matter before the court.

Conflict of Interest

[38] Finally, the Respondent Father has now stated that Dr. Marshall has a conflict of interest and cannot act as the assessor in this matter. I am concerned about this allegation as the basis of the conflict of interest remains unexplained: in his affidavit, D.O. says that the conflict arises from the fact that in 2008, “I was part of the same organization as Dr. Marshall called the Barrie Windcatchers, campaigning to get a windmill built in Barrie” and therefore Dr. Marshall is unable “to provide an unbiased assessment of my mental state and I believe that his appointment to the court would be prejudicial to my case.”[^9] He provides no explanation as to why this 2008 contact would result in bias as it appears to be irrelevant to the child protection issues before the court and there is no indication as to any evidence that Dr. Marshall would be biased in his assessment report. The contact took place four years prior to the date that A.S.O. was born. Previous and unconnected contact, which appears to be casual at best, is not a basis for bias in the choice of an assessor.

[39] Finally, there is no explanation as to why D.O. failed to bring this “conflict of interest” to my attention when making submissions regarding the assessor when he was certainly aware of this previous contact when those submissions were made. The issue was alluded to without any specificity in the affidavit of Sarah Anne Boland sworn December 2, 2020 which was filed by the Respondent Father respecting the assessment report.[^10] He knew of a potential conflict when the issue of the assessor was argued and he did not raise it with me in his counsel’s written submissions in December of last year. It was not, as far as I can see, raised until now.

[40] It is up to the Respondent Father to demonstrate that there is an apprehension of bias or conflict of interest concerning the assessor proposed by DBCFS in this matter. He has not done so with any specificity. In any event, it was up to the Respondent Father to raise this issue with the court on a timely basis and he did not do so even though he had discussed this issue early on with his counsel. He has not explained why he did not make this part of his submissions on the assessor. I am therefore unable to find that there is a conflict of interest which would disqualify Dr. Marshall as the assessor in this matter or to find that this is an issue which was raised but not determined by the court when the assessor was chosen in my endorsement of December 16, 2020.

Determination

[41] In view of all of this, I find that I do not have jurisdiction under the circumstances to reconsider my decision concerning the assessment report. Even if I did, considering the delay and the failure to provide clear evidence of a conflict, I would not exercise my discretion to do so.

[42] The Respondent Father’s motion for reconsideration is therefore dismissed.

Terms of Assessment Report

[43] To begin with this issue, the court must return to the reasons for the proposed assessment of D.O. as suggested by Eberhard J. in her endorsement of February 24, 2020. She stated that she wished the assessor “to know what is being said ABOUT the subject so that insight can be gathered on the points in dispute.” She said that this assessor overly relied upon statements made by the Respondent Father, which did “little more than give professional expression to the subject’s notions of unfairness in the way he has been treated.” She is, in essence, stating that the assessor should hear both sides of the story prior to making a determination.

[44] Although it was clear that the parties could not come to an agreement on the instructions to the assessor, there was little before the court providing particulars of that disagreement. Neither counsel made detailed submissions on the instructions to the assessor and the best that was done was when Mr. Milne referred me to the affidavit of Floyd Vivie sworn November 23, 2020. There was little said by any of the other parties to the proceeding as to the instructions to the assessor.

[45] The competing viewpoints can be determined by referral to the competing instructions to the assessor by DBCFS and the Respondent Father found at Ex. “E” and “L” respectively. Although I was referred to Ex. “L” by Mr. Milne as to the suggested terms of the order, these in fact were the suggestions by the Respondent Father’s solicitor as to the instructions given to the assessor which differed substantially from the draft instructions to the assessor prepared by DBCFS. I presume that what Mr. Milne would be advocating are the agency’s draft instructions to the assessor found at Ex. “E”.

[46] The instructions prepared by the agency fulfill one of the major requirements of Justice Eberhard insofar as they contain a narrative of the facts leading up to these proceedings and the request for the assessment. The only issue for me is that the narrative in question is that of the agency. Therefore, the format should be that as set out in Ex. E with the agency narrative.

[47] That statement was only current as of October 6, 2020. The agency should have an opportunity to update that narrative and then the father should have a further opportunity to provide a responding statement of facts so that the assessor hears from both sides as required by Justice Eberhard. The mother’s narrative can be found at para. 2 to 8 of her submissions found at Tab 22 of the Continuing Record. Again, she should have an opportunity to provide any updating information. The father has not provided a similar narrative of his version of the facts and should have 10 days to provide his side of the story to be inserted into the assessment instructions.[^11]

[48] The agency draft also encloses a package of pleadings. It does not appear to include D.O.’s Answer and Plan of Care found at Tab 4 of the Continuing Record which should also be inserted into the package.

[49] As well, since those draft instructions were prepared, a second full volume of the continuing record has been filled by materials largely concerning the choice of the assessor and the alleged conflict between Dr. Marshall and D.O. These are not related to the facts leading up to agency involvement and need not be provided to the assessor. The only relevant pleading in Volume 2 of the Continuing Record and not included in the draft instructions is the DBCFS Plan of Care found at Tab 27 which should also be included in the package.

[50] Regarding the competing instructions prepared by the agency and D.O., they generally cover the same areas. The only difference that I can find is that, in Ms. Salvatore’s draft of the instructions, she suggests that questions only be addressed depending upon the answer to each of the previous questions. For example, the assessor is instructed to consider clinical intervention only if he finds there to be “any psychiatric, psychological or other disorder(s) or condition(s) which may impact on his ability to care for [A.S.O.]. Later, the assessor is only permitted to review the Respondent Father’s willingness to participate in therapy if the assessor finds that there are interventions that would assist.

[51] The agency instructions are more open-ended, permitting the assessor to consider the same areas, but not making it a staged process as suggested by Ms. Salvatore.

[52] There are several problems with D.O.’s approach. Firstly, those instructions dictate to the assessor how to complete the assessment and they close off routes depending upon the results of each stage of the assessment process. I hesitate to fetter the assessor’s approach to the issues before the court.

[53] Further, if Dr. Marshall finds, as did the assessment previously submitted by D.O., that there are no underlying psychopathologies affecting D.O.’s parenting abilities, it is unlikely that he would suggest interventions or treatment for D.O. as these would then not be necessary. It goes without saying that interventions would only be suggested if they are necessary.

[54] Finally, Ms. Salvatore suggested that D.O.’s unwillingness to seek out therapy may only be considered if there are therapies that would be found to assist. In fact, D.O.’s willingness or unwillingness to accept treatment as necessary may be found to be relevant to his psychological state. I note that the mother alleges in her narrative that D.O. would not exercise access which would address A.S.O.’s anxiety about seeing her father and the father’s openness in consulting with a therapist may be a similar factor. Dr. Marshall may feel it necessary to canvas those issues as part of his assessment of D.O.’s psychological state.

[55] Assessments are not scientifically certain: they involve an assessment of an individual’s psychological state which always, to some extent, involves some subjective interpretation. The assessor, once chosen, must be able to “follow the evidence” as best as possible.

[56] Therefore, I find that the more open-ended approach of the agency is more appropriate for the instructions for the assessor.

[57] I am inserting, however, the portion of D.O.’s draft instructions which speaks to the effect that his indigenous status and colonialism may have on his ability to cope as being a relevant factor in this assessment. Dr. Williams had offered this as part of her assessment, and I believe that Dr. Marshall should also canvas indigenous issues as part of his assessment.

[58] A draft of the instructions can be found at Schedule A to this endorsement. The names of the parties and child can, of course, be inserted back into the actual instructions to the assessor.

Order

[59] The Respondent Father’s motion for reconsideration is dismissed.

[60] There shall be an order to go that the instructions to the assessor shall be as set out in Schedule A to this endorsement, subject to:

a. The agency updating its narrative, if necessary, within 10 days of the release of this endorsement;

b. the father’s narrative being inserted into the draft instructions within 10 days of release of the revised narrative of the Society.

Justice J.P.L. McDermot

Date: August 27, 2021

August 27, 2021- Correction:

1. The name and location of the child’s school has been removed.

Schedule A

Respondents: V.S.

D.O.

Curve Lake First Nation Chippewas of Rama First Nation

Children's Lawyer: Julia A. Bailey

Child: A.S.O. (b. […], 2013 (Age 6))

Narrative of Applicant Child Protection Agency

D.O. is the father of the child. The father has participated in the legal proceedings and is represented by legal counsel, Joy Nneji. The mother has also participated and is represented by Lisa Bowlin.

This file began on June 26, 2019 when Simcoe Muskoka Family Connexions (the ''Society") opened an investigation as a result of a referral received concerning the child's concerning behaviours observed at her school which included high anxiety and distress. The child’s school is MKES.

Upon investigation, information was received about comments made by the child that she bates her mother and wants to kill her, as well as comments of self-harm and suicidal ideation, and unexplained sexualized behaviour.

Many concerns were received by the Society when the. file was in their charge which included odd and strange behaviour exhibited by the father, particularly his interactions with staff at the child’s school. The father is reported as doting on the child in an unhealthy way while the child is at school. There are concerns of the child' s mental state and the father controlling and coaching the child's behaviour. There are also allegations from the mother that the father is psychologically abusive toward the child. The child's stepbrothers, Solomon and Manny (Emmanuel), report the father as being manipulative, violent and angry, and that the father has yelled and had 'break downs' in public.

The child is reported by the School Principal as being very anxious. Also, the child is reported as avoiding or refusing to go to the bathroom at school even though she is old enough to do so, and the father being. on standby and having the child go to the potty in his car, the father parking a distance away from the school. The child's lunch being packed by the mother is often ‘checked’ by the father and at times the child has been told not to eat the mother's lunch. The child would also not drink the water at school. At the end of the school day, the father has been reported as "grilling the teacher" when he picks up the child which resulted in the school taking steps to close the primary wing to avoid this confrontation.

The family reports the child as being emotionally unstable and unpredictable. Family members, such as the child' s stepbrothers, believe the child is not doing well, and at the time of the file opening reported that almost every day she has a ‘breakdown’. The child is noted by the Society as being very shy and avoiding eye contact. Also, the mother has been the recipient of very concerning and specific physical and verbal threats of harm made by the child. The child often resorts to high emotional responses such as screaming, yelling and crying for minor things such as mispronouncing the child's name or using an abbreviated form of her name (e.g. “Avi”).

At the core of the present child protection investigation is the father’s mental health and the impact it may have on the child's wellbeing because there may be a direct relationship between his caregiving and the anxiety and distress the child is experiencing.

Initially, due to concerns regarding the father's mental health and the child’s behaviour, the Society recommended that (i) the child receive therapy as soon as possible, (ii) that the father engage in a mental health assessment, and (iii) to have a worker in the father' s home working on his interactions with the child. For a period of several months, plans were attempted to engage the child with services at her school, but the father was not willing to consent to the therapy, did not meet with the proposed therapist (the mother had), did not agree with therapy occurring in Rama territory, and did not suggest other means for the child to receive therapy. Following this, the Society's concerns in this matter included the father's failure to respond to the child's mental and emotional condition by providing recommended services.

On December 30, 2019, the file was transferred to Dnaagdawenmag Binnoojiiyag Child & Family Services (the "Agency"). The child protection investigation continued.

In early January 2020, the school reported the child is anxious all the time and that her concerning behaviour has continued. The school also reported noticeably significant differences in the child's behaviour depending on who is accompanying her, whether it is her mother or father. Also, around this time, the agency received an email that the school's Special Education Resource Teacher strongly recommended the child participate in seeing a Registered Psychotherapist (Play Therapist). The father refused to provide consent allowing the child to participate.

Further, in January 2020, the Agency received information from the mother and School Principal that there is increasing concern for the child' s behaviours and interactions with her peers, The child was expressing ideas of self-harm suicidal ideation. and further expression of killing her mother and other family members (e.g. stepbrothers). The child was also expressing unexplained sexualized behaviour toward the father. Similar sexualized behaviour had been reported earlier when this file was with the Society.

Due to the child exhibiting unexplained sexual behaviour, the protection concerns increased to include possible physical harm due to abusive sexual activity, and possible physical harm due to the father not consenting to the child's mental, emotional and developmental condition. On January 17, 2020, the father was notified the Agency had opened a subsequent investigation on these additional bases, and that the Agency was intervening by placing the child with the mother until assessments could be made. The Agency also notified the father that a child protection application would be filed in court. A child protection application was filed on January 21, 2020.

On February 5, 2020, the child was interviewed by the Police on the allegation of sexual abuse by the father. No clear disclosure was made by the child regarding possible sexual abuse during the police interviews. Some of the questions were not answered by the child, but the child disclosed that there are "secrets" between her and the father which she would not provide details about. The father refused to participate in the police investigation. Toe police investigation closed on March 6, 2020. Later, on February 7, 2020, Dr. Barker from the Regional Centre for Suspected Child Abuse and Neglect at Orillia Soldiers Memorial Hospital performed an examination on the child and reported that the allegation of sexual abuse could not be confirmed or denied. The Agency's child protection allegation of possible abusive sexual activity remains inconclusive.

On February 2,8, 2020, a referral was made to a child psychologist who agreed to meet the child. The first appointment was March 15, 2020. Also, the child has been seeing a Play Therapist since January 2020. On March 12, 2020, Play Therapist, Carolynne Warton, reported the child's behaviour has improved since being enrolled in Play Therapy. Positive developments are also reported by the child's teachers and the child's mother.

Narrative of Respondent Mother

1. The issues for the assessor relate to Father's access with A.S.O.. As Justice Wood indicated in his Sept. 4^th endorsement: "the parties are deadlocked as to whether D.O.’s access with A.S.O. should be increased or decreased. D.O. has agreed to have a psychological assessment to assist the court ln determining this issue."(emphasis added)

2. As noted by Justice Eberhard in her Feb. 24th/20 endorsement, “ .. there is question of increased hours for access. The F ... agrees the child's conduct and comments are troubling signals of emotional distress but denies there is a link to suggest that these concerns are caused by him. Further, he says the homicidal, suicidal and confused comments or acting out, do not occur when the child is in his care. Of course, I make no determination at this stage as to causation or contribution to the child's distress. Instead, I turn to the more objective evidence of the child's adjustment at school. Troubled, antisocial, fearful, developmentally delayed conduct that worried the school from the outset appeared to the school to mirror the Respondent father' presentation. Since the child has been in her mother's care full time, subject to access visits, she has already shown herself to be more communicative, social, accepting of school routines and cultural ceremony. In short, she has calmed down into routine behavior. Counseling and social support is offered to the child in the school setting so her openness to their attentions is likely significant in easing her distress. Reading the material, I had concerns that the Respondent Father may have mental health issues leading to some or the rather bizarre interactions he has had with the school until it is known whether it is safe to promote the reintegration of father and daughter's unsupervised and expanded parenting time, I decline to expand access as requested by the Father."

3. The F has been having supervised access with A.S.O. since Feb 6/20. Initially, those visits took place at the Society's office in Atherley. They were expanded to public visits (i.e.: library, bowling alley, park, etc) on or about Feb. 25/20. A.S.O. did not react well to the visits, exhibiting alarming behaviours after each visit. These included, but are not limited to: wetting her bed, defecating in her pants, crying herself to sleep, name calling (to her brothers and M), hitting (all of them), threatening harm (to M, her brothers and herself), hurting herself (scratching at her face/arms), withholding affection towards Min front of her dad, playing with her dolls in a sexual way (with the dad and child dolls), taking her clothes off in front of her brothers, telling M she hates her, etc. These behaviours escalated the more contact she had with her father, and they worsened when access was expanded to public locations. When there was no access with her F (such as during the Covid shutdown) the behaviours lessened, and A.S.O. blossomed.

4. Throughout, A.S.O. as advised her M (and anyone around that was listening) that she did not want to see her F, or go to any of the visits, and continually asked if she “could just go home”. A.S.O.' s negative response to access with her F has been witnessed by her teacher, principal, and the case workers involved in this matter (on many occasions). As a result, a number of in person visits were cancelled due to A.S.O. not wanting to go, and the workers not wanting to physically force her to do so. Due to her refusal, A.S.O. has not had 'in person" visits with her F since Sept. 10/20.

5. Father has been offered in person visits at the Society Office (where they were previously held in early spring) instead of at the park etc.; and zoom visits (as were held during Covid) but he has refused both suggestions. He complains about not seeing A.S.O. for 2.5 months, but it’s only because he doesn't like the venue (i.e. visits in the office or via zoom instead of at a public place).

6. Both Justice Wood and Justice Eberhard have commented about the mental health concerns surrounding the father, and the need to for an assessnent to assist regarding the many issues relating to access ie. What access, if any, should there be between A and her F; what form should it take (in person at office, via zoom or other); how often should it occur and its duration; who should be supervising (a professional or one of the F's delegates), what protections need to be in place for A given F’s mental health issues and refusal to follow guidelines.

7. Notwithstanding the pending assessment, and A's unwillingness to go for in person public visits for some time, F is seeking that access be increased, exercised outside the jurisdiction and supervised by his family/friends - not the Case workers who are trained and qualified to address any concerns that may arise during F’s access, and protect A.S.O. from harm. Given that F has regularly not followed the rules for access; consistently pushes the boundaries/parameters of same; has tried to take A.S.O. out of earshot of the workers during access/whispered to her during visits; wants to be able to kiss, hold, touch A.S.O. during visits; and doesn't want to be supervised by the workers, Mis fearful for A's emotional well being if access is not properly supervised by qualified individuals.

Respondent Father’s Narrative

[to be inserted as per endorsement]

The parties request the following issues to be addressed in the psychological assessment:

1. The mental health of the father, including strengths, limitations, and areas of concern that may impact the father's parenting capabilities and the mental health of the subject child.

2. Classification and psychological facts and information about the father1s symptomology, Interpersonal patterns and coping methods, and personality and behaviour traits that may explain or contribute to the mental health issues reported about the father in this matter. If possible, provide specific reference in the court materials provided to support this assessment.

3. Is the father exhibiting any behaviour or cognitive limitations which may impact his ability to parent? Is the father demonstrating appropriate parenting behaviour and an ability to maintain healthy interpersonal relationships.

4. Psychological evaluation of the root cause of the father' s symptoms, and an identification, conceptualization and/or possible diagnosis of the father's mental health issues(s), and whether treatment is advisable.

5. Assessment of the father's psychology should it continue without treatment, and whether the psychological symptoms are likely to perpetuate, and if so whether they are they likely to diminish or worsen, and the impact this may have on the father's interpersonal relationships such as that with the subject child.

6. If treatment is advisable, an assessment of the willingness of the father to receive treatment and specify the types of therapy and therapist most likely to assist the father, and whether there are any specific recommendations for addressing areas of difficulty or concern. Please provide an estimated timeline required to successfully accomplish the treatment.

7. How this psychological assessment may assist the parties and the court in addressing the child protection concerns associated with the father? Planning for the subject child? Father's access to the child and whether it should be increased or decreased?

8. With the consent of the father, whether any other family person should be interviewed in order to arrive at a more fulsome psychological assessment of the father?

9. You are to take into account that the father is part Indigenous Canadian and Caucasian Canadian the fact that Canadian psychological studies are almost exclusively conducted on Caucasian Canadians. You are to assess the effect of colonialism and the father’s Indigenous heritage and as to how this reflects in his psychological profile and any parenting issues that he may have.

Attached for your reference are relevant pleadings, affidavits, rulings, and other documents filed in this proceeding regarding the child, specifically:

• DBCFS Protection Application dated January 21, 2020

• Affidavit of Floyd Vivie dated January 21, 2020

• DBCFS Notice of Motion dated January 21, 2020

• Affidavit of Christine Oliver (MKES) dated January 31, 2020

• Affidavit of Lisa Gregory (SMFC) dated February 4, 2020

• Affidavit of Floyd Vivie dated February 6, 2020

• DBCFS Plan of Care dated December 8, 2020.

• Answer and Plan of Care of V.S. dated February 14, 2020

• Answer and Plan of Care of D.O. dated January 31, 2020

• Endorsement (Eberhard J.) dated February 24, 2020

• Affidavit of V.S. dated March 13, 2020

• Affidavit of Floyd Vivie dated March 17, 2020

• Affidavit of D.O. dated April 15, 2020

• Affidavit of V.S. dated April 20, 2020

• Affidavit of Floyd Vivie dated April 24, 2020

• Chippewas of Rama First Nation Wholistic Supportive Plan dated June 4, 2020

• Endorsement (Wood J.) dated September 4, 2020

This assessment is being conducted in accordance with the Child, Youth and Family Services Act, 2017. Assessors are required to include certain information in their assessments. A copy of Ontario Regulation 155/18 (CYFSA) Court Ordered Assessments is attached for your reference. Please take specific note of Section 36 of the Regulation entitled "Contents of assessment report".

Upon completion of the assessment, please forward it to the Agency's Legal Department at the Rama First Nation office so the Agency may ensure it is served and filed. The Agency is funding the assessment and requests that the account for services be sent to the worker, Floyd Vivie, at the Agency's Rama First Nation office upon completion of the assessment. I confirm that the assessment is estimated to take approximately 60 days to complete.

[^1]: See para. 6(4), (9) and (11) of the Application filed in this proceeding on January 21, 2020 and found at Tab 1 of the Continuing Record.

[^2]: See pp. 7-8 of the psychological assessment found at Ex. EE to D.O.’s affidavit sworn January 31, 2020 found at Tab 6 of the Continuing Record.

[^3]: Converted to a case conference

[^4]: See the endorsement of Eberhard J. dated February 24, 2020, para. 21.

[^5]: The Respondent Father’s intent to appeal that decision was confirmed in the endorsement from the conference held on that day.

[^6]: S.O. 2017, c. 14

[^7]: O. Reg. 144/99

[^8]: As well as its predecessor legislation, the Child and Family Services Act, R.S.O. 1990, c. C.11. The provision preventing an appeal of an assessment decision is of long standing.

[^9]: See the affidavit of D.O. sworn May 28, 2021, para. 4 and 5

[^10]: See Ex. C to the affidavit of Sarah Boland sworn December 2, 2020 which contains an email dated October 14, 2020 to counsel for DBCFS from Ms. Salvatore, then counsel for D.O. In that email, Ms. Salvatore states, “Further, it has come to my attention that there may be a conflict with the assessor proposed by the Society. I am looking into this in a more fulsome manner and will provide further email correspondence tomorrow morning on this point.” As far as I can see, this was not particularized later in that lengthy affidavit or subsequent to that date and was certainly not raised in the submissions made by counsel in respect of the assessor to be chosen.

[^11]: The written submissions of the Respondent Mother found at Tab 22 says that the father had provided a statement of facts which she disagreed with. However, in argument, no one brought that statement to my attention and I could not find it in the Continuing Record.