Court File and Parties

COURT FILE NO.: FS-20-16004 DATE: 20220207 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: MARISSA JOSEPH AND: LASZLO MOLNAR

BEFORE: Madam Justice Papageorgiou

COUNSEL: Nancy Iadeluca, for the Applicant Joan Cushon, for the Respondent

HEARD: February 7, 2022

Endorsement

[1] The Applicant Marissa Joseph (the “Mother”) brings a motion for an order compelling the Respondent Laszlo Molnar (the “Father”) to participate in a psychiatric risk assessment by Dr. Mark Pearce as referred by the court appointed assessor Howard Hurwitz (the “Assessor”).

[2] The Father brings a cross motion to: adjourn this motion pending the Mother providing her affidavit of documents pursuant to Rules 19(1) and Rule 1(8.1) of the Rules of Civil Procedure; and appoint Dr. P. Klassen to complete a risk assessment for both parties for physical or psychological behavior and/or aggression towards the Child.

Decision

[3] The short answer to the Father’s opposition is that the clear wording of Justice Kiteley’s June 12, 2021 Order and the signed Assessment Retainer Agreement provide the Assessor the authority to direct this further risk assessment although I agree that the Father has raised a valid objection to Dr. Pearce.

[4] The Assessor did not determine that any risk assessment was required of the Mother and therefore there is no basis for this court to interfere with that decision.

[5] I also agree with the Father that the assessment should not continue or be completed until the parties provide full disclosure.

Background

[6] The Mother works as a pediatric dermatologist. The Father is unemployed and currently on long term disability due to his mental health issues which include bi-polar affective disorder.

[7] The Mother and Father have one Child who is six years old. They have shared parenting for the last year and a half.

Section 30 Assessment Ordered by Justice Kiteley

[8] Section 30 of the Children’s Law Reform Act provides as follows:

Assessment of needs of child

30 (1) The court before which an application is brought for a parenting order or contact order with respect 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. R.S.O. 1990, c. C.12, s. 30 (1) ; 2020, c. 25 , Sched. 1, s. 8 (1).

When order may be made

(2) An order may be made under subsection (1) on or before the hearing of the application and with or without a request by a party to the application. R.S.O. 1990, c. C.12, s. 30 (2) ; 2020, c. 25 , Sched. 1, s. 8 (2).

[9] Justice Kiteley ordered a section 30 assessment primarily because the Father had failed to comply with the no-contact order made by Justice Sossin. Justice Kiteley considered section 16(3)(i) of the Divorce Act particularly relevant. It specifically directs the court to take into account “any violence and its impact on the ability and willingness of a parent who engaged in family violence to care for and meet the needs of the child and the appropriateness of making an order that would require a parent in respect of whom the order would apply to cooperate on issues affecting the child.” She referenced the fact that section 16(4) specifically highlights family violence. Therefore, a primary reason for the assessment was to address potential family violence and its impact on the parent’s ability to parent.

[10] Justice Kiteley’s June 12, 2021 endorsement specifically directed as follows:

An assessor is appointed pursuant to s. 30(2) of the Children’s Law Reform Act, without a request by a party, in respect of decision-making responsibility or parenting time with the child, B.,…to assess and report to the court on the needs of the child and the ability and willingness of the parties or either of them to satisfy the needs of the child.” She also directed that pending this assessment, neither party could bring any further motion without leave of the court.

[11] The parties subsequently entered into an Assessment Retainer Agreement which set out their agreement that the Assessor would:

a. “Determine the best interests of the child having regard to family violence and the ability of any person who engaged in family violence to care for a child” and “any…measure that is relevant to the safety, security and well-being of the child.”

b. “Determine whether there are mental health concerns with each parent that impacts on their parenting. This will include psychological testing to be done by a registered psychologist.” [I note here that the Father argues that the assessment was limited to psychological testing but the wording here is explicit that it “includes” psychological testing.]

c. “Determine the effectiveness of the parent’s mental health and whether this is impacting on either parent’s parenting responsibilities.”

[12] It was also agreed that “the assessor may obtain consultation with respect to the assessment. Fees for consultation may be passed on to the parents depending on the nature of the consultation.”

[13] Therefore, pursuant to Justice Kiteley’s Order as well as the parties agreement, the Assessor was at liberty to consult with other experts as he saw fit to enable him to address the best interests of the child and in particular with respect to the safety, security and well-being of the child.

[14] The assessment commenced August 2021 and as part of it the Assessor referred the parties for psychological testing conducted by Dr. Fitzgerald, a clinical psychologist.

[15] On November 3, 2021 the Assessor met with the parties’ counsel and advised that Dr. Fitzgerald raised concerns to the Assessor and recommended that the Father undergo a risk assessment as to lethality. He made no such recommendation regarding the Mother. The same day he wrote to the parties advising that as part of his section 30 assessment it would be necessary to conduct a violence risk assessment of the Father as a result of recommendations from Dr. Fitzgerald.

[16] The Assessor has explained that a psychiatric risk assessment is different than the psychological testing done. The psychiatric risk assessment is conducted to determine whether there are underlying psychiatric or mental health conditions present that would indicate there is a propensity for violence or aggression towards others. It differs from personality testing as it measures issues related to lethality and identifies the conditions under which a person is prone to aggression and other forms of violence. The Assessor indicates that such questions are beyond the scope of Dr. Fitzgerald’s psychological testing.

[17] The Father raises a variety complaints against the Assessor’s decision to refer him for a psychiatric risk assessment including: i) the Assessor relied upon facts which he believes are explained on their face, and should not result any concern; ii) the Assessor has already referred the Father to a psychological assessment which did not result in any findings that the Father posed any threat or danger to the Child; iii) the Assessor is biased and favored evidence given by the Mother; iv) the assessment order made by Justice Kiteley does not expressly or implicitly provide for the Assessor to make any referral for a risk assessment; v) not all of the videos provided to the Assessor were previously tendered into evidence.

[18] The Father expressed significant concerns that the Nest Cams provided to the Assessor by the Mother were selectively downloaded by the Mother so as to provide a one-sided story of their relationship in that she did not download videos which demonstrated her own violence. He also alleged that the Nest Cams she provided the Assessor were abridged or edited without any persuasive evidence.

[19] I note that on April 23, 2021 at a case conference, the Father raised the issue of Nest Cams which had not been downloaded. At that case conference counsel for the Father indicated that she had made enquiries of Google and understands that an order is required. Justice Kiteley directed as follows: “A course of action was not agreed upon. I suggested that Ms. Cushion communicate in writing with Google to determine availability. If Google confirms availability but requires an order, she will forward a proposed draft order to Ms. Iadeluca for her client’s consideration. This has been an issue raised repeatedly. I encourage the parties to resolve it.”

[20] There is no evidence before me as to what steps the Father has taken to obtain any additional videos from Google.

[21] If there were videos which the Father wished to give the Assessor, he should have pursued this issue sooner. Indeed, he may still do so. If the Father wishes to provide the Assessor with evidence that the videos have been tampered with or edited, he may still do so. He is also at liberty to make arguments about admissibility of such videos at trial, as well as any implications which this may have on the validity of the Assessor’s conclusions. However, this does not mean the Assessor may not direct a risk assessment as part of the court-ordered assessment. Notably, the Father has not brought any motion to remove the Assessor on the basis of bias even though this is his argument.

[22] The Father also argues that there is no basis for a risk assessment because his treating physician, Dr. Filiczuk does not feel one is required. Dr. Filiczuk has been providing treatment to the Father for over 20 years. He has provided an affidavit dated January 12, 2022 where he states that the Father has never presented with any psychosis except for a brief period in 2001. Dr. Filiczuk also states that Dr. Fitzgerald (the psychologist upon whom Mr. Hurwitz relies in referring a risk assessment), has not answered any of the five questions about whether, based on his testing, the Father had any undiagnosed condition which would impact on parenting and present a safety risk to the Child or the Mother. He reads Dr. Fitzgerald’s report as supporting that there are no further mental health concerns or diagnoses and he can see nothing in Dr. Fitzgerald’s reported testing results or conclusions which would support any concern that the Father presents any form of safety or lethality to the Mother or Child. However, it is the Assessor who says he obtained this recommendation from Dr. Fitzgerald and this court is not prepared to go behind that.

[23] This is essentially a dispute between professionals. The evidence before me is that Dr. Fitzgerald has advised Mr. Hurwitz that a risk assessment is necessary and Dr. Filiczuk apparently believes it is not. This court is not a psychiatrist or a psychologist or a social worker and is not in a position to engage in the kind of scrutiny of these various professionals which the Father suggests it should be doing at this stage.

[24] The main point to note here is that it is Dr. Hurwitz who is the Court appointed assessor. Dr. Filiczuk may have his views based upon his treatment of the Father, but he is not the one in the position to direct how the assessment is done. Mr. Hurwitz had the authority to direct this additional assessment by virtue of Justice Kiteley’s order and the parties’ Retainer Agreement. The best interests of the child are paramount and if the court-appointed assessor is of the view that a risk assessment is necessary, this Court is in no position, on this motion, to direct otherwise. As noted by Justice Kiteley in her June 12, 2021 endorsement “whether it is uncorroborated allegations of violence, as the Respondent asserts or substantive allegations affecting the ability of the Respondent to respond to the needs of the child, the court has to have the information.”

[25] I make no findings on whether there may have been deficiencies with respect to the Assessor’s approach, evidence he took into account, and other concerns expressed by the Father. The Father is in the position to oppose the results of the section 30 assessment if he determines that the process was flawed in some respect at a later date, and/or lead evidence to dispute the Assessor’s findings.

[26] As well, the Father provided no authority for the proposition that the Court can intervene to direct how an Assessor conducts the assessment in the absence of a motion to remove the Assessor for bias.

[27] Section 30(5) of the Children’s Law Reform Act provides that in an order for assessment, the court may require anyone to attend for assessment by the person appointed by the Order.

[28] The Assessor was appointed by the court and in my view, section 30 permits the court to make additional orders requiring the parties to attend for further assessments directed by the Assessor if they refuse to cooperate.

Choice of Assessor

[29] The Assessor recommended Dr. Mark Pearce, a forensic psychiatrist. The Father opposes the particular assessor on the basis that Dr. Pearce practices at CAMH with one of the Mother’s friends Dr. Eapen.

[30] The Father’s psychiatrist, Dr. Filipczuk, provided an affidavit dated July 13, 2020, where he stated that on one occasion, Dr. Eapen, who had not treated the Father, but saw him in an emergency department, telephoned Dr. Filipczuk to advocate against the Father. Dr. Filipczuk was concerned that Dr. Eapen had summoned him on the belief that she was reporting a clinical assessment finding from the Emergency Room having been involved in his case, which was not true, and that she was providing rudimentary information advising that he should issue a Form 1. Dr. Filipczuk terminated the call as he believed that Dr. Eapen called, not in her capacity as a professional, but in her capacity as a friend of the Mother.

[31] I note that while the Mother’s counsel argued that there is no evidence before me that Dr. Pearce works at CAMH, I infer that he does as there is an email from the Assessor dated November 4, 2021 in the record where he states that he had canvassed with the Mother (who is a physician) and she has no personal friends working at CAMH which could pose a potential conflict of interest with Dr. Pearce. The Father’s evidence that Dr. Eapen is the Mother’s friend and works at CAMH is uncontradicted.

[32] I am satisfied that the Father has raised a valid objection to Dr. Pearce. The Assessor specifically contemplates that it would not be appropriate to select a psychiatrist from a facility where the Mother had friends based upon his email. The Father’s uncontradicted evidence is that Dr. Eapen (the Mother’s friend who has advocated for her before) works at CAMH. Given the actions Dr. Eapen took by improperly contacting the Father’s psychiatrist, I agree there are concerns that the medical community may be tightly knit and the Mother’s identity as a physician gives her influence and status. In my view, the interests of justice and fairness require using a psychiatrist outside of Toronto. There is no prejudice to the Mother in doing so while failing to do so creates concerns for the Father.

[33] The Father requests that Dr. Klassen be appointed to conduct the risk assessment. There is no consent from Dr. Klassen which is required.

[34] I am directing the parties to communicate with the Assessor within seven days regarding whether Dr. Klassen would be suitable, and if he is not considered to be suitable by the Assessor, that the Assessor select another psychiatrist outside of Toronto who consents to provide the risk assessment.

[35] If the Father still opposes a risk assessment after the Assessor has appointed someone outside Toronto who consents, the Mother may bring a further motion seeking an Order that the Father attend the risk assessment with this specific other psychiatrist.

[36] As noted in Justice Kiteley’s Order, the costs of the risk assessment shall be shared at first instance with the Mother paying 75 % and the Father paying 25%.

Productions

[37] I am giving the Father leave to bring his production motion notwithstanding Justice Kiteley’s order that there shall be no further motions without leave, because it makes no sense that neither party has responded to the other’s request for disclosure or provided an affidavit listing documents in the circumstances of this case.

[38] The Assessment Retainer specifically states that:

5. It is agreed that the parents will:

(i) Make full disclosure of all relevant information reasonably required for the assessor to understand the issues being assessed.

[39] Both parties submitted request for disclosure many months ago. It is important that the Assessor receive all relevant material as he directed, and it is impossible to know if that is the case if the parties have not completed their disclosure. I am ordering that both parties respond to the other’s request for disclosure within 30 days.

[40] Thereafter, both parties shall serve an affidavit listing documents, fifteen days later, which complies with r. 19 of the Rules of Civil Procedure.

[41] The parties shall provide to the Assessor any additional materials disclosed through this process which may be relevant to the assessment.

[42] Upon completion of productions, the assessment shall continue.

[43] If the parties cannot agree, they may make cost submissions no longer than five pages as follows: a) The Mother within 5 days; and b) The Father within 5 days thereafter.

Papageorgiou J. Date: February 7, 2022