OTTAWA COURT FILE NO.: 950/19

DATE: 20220606

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: M. L., Applicant

AND

B. C., Respondent

BEFORE: Madam Justice Tami L. Waters

COUNSEL: Jeremy Dolgin, Counsel for the Applicant

Erin Lepine, Counsel for the Respondent

HEARD: April 26, 2022

CORRIGENDUM to endorsement released JUNE 6, 2022

The names of the children have been removed and replaced with initials. The dates of birth of the children have been removed and replaced with their respective age. The names of the parties have been removed and replaced with initials.

Waters, J.

ENDORSEMENT ON MOTION

[1] This Motion was brought by the Respondent father, B.C. (“Respondent”). The Respondent seeks an Order to appoint Dr. Kenneth Zucker to conduct an assessment as to the needs of the child, B.C, age 9, particularly in relation to the possibility that B.C. may be experiencing gender dysphoria and/or other factors causing B.C. to request (at times) to be referred to as male, and the needs of B.C. in relation to same. In the alternative, the Respondent seeks the appointment of Dr. Carol-Anne Hendry to conduct the same assessment. In addition, the Respondent has particularized the scope and nature of the assessment with respect to the specificity of the assessment requested. The Respondent wishes for the assessor to be retained on a timely basis and the assessment to proceed with the parties sharing the cost of such assessment equally and with parameters to ensure that the assessment is completed.

[2] A cross-motion was brought by the Applicant mother, M. L. (“Applicant”). The Applicant seeks an order that the parties retain Dr. Jennifer DiFiore to assess B.C.’s preferred gender pronouns and to provide an opinion regarding which gender pronouns should be used for B.C. considering the child’s best interest.

[3] Further, the Respondent sought an Order that B.C. and C.C. shall reside with the Applicant the last two weeks of July 2022 or the last week of July and the first week of August and with the Respondent for another two consecutive two-week period during the summer of 2022, with regular access being suspended during the time requested. The Applicant did withdraw the portion of her claim which addressed the summer 2022 residency request.

[4] The Respondent filed a Notice of Motion dated March 29, 2022, and an Affidavit dated November 12, 2021, and a further Affidavit dated April 20, 2022. In addition, an Affidavit was filed by Dr. Kenneth Zucker dated April 20, 2022.

[5] The Applicant filed a Notice of Motion (cross) dated March 11, 2022, and an Affidavit dated March 11, 2022. In addition, an Affidavit was filed by Dr. Feder dated January 13, 2022.

Background:

[6] The Applicant and Respondent were married on February 19, 2011 and separated on March 31, 2016. The parties have three (3) children together, namely, V.C., age 9 (“V.C.”), B. C., age 9 (“B.C.”) and C.C., age 11 (“C.C.”) (“the children”). The children, V.C. and B.C. are fraternal twins.

[7] The parties entered into a parenting agreement on or about February 27, 2017, which allowed for joint custody (as it was then) with respect to the children. An amending agreement was entered into by the parties on February 19, 2021, and this document provided that any medical issues or gender dysphoria issues related to the children would be resolved by way of Application to the court.

[8] Dr. Arthur Leonoff has been involved with the family since in or about May 2016 and continues to be involved with the family. The scope of Dr. Leonoff’s involvement with the family is to assist the parties with communication and co-parenting.

[9] The parties faced considerable disagreement on how to address the issue of B.C. as it relates to the child’s possible gender dysphoria.

[10] There have been various service providers involved with the family, and B.C. as it relates to the issue of B.C.’s gender identity. Dr. Leonoff had been working with the family and referred the family to consult with CHEO. Other service providers involved with the family as it relates to B.C. are Dr. Sharon Francis Harrison, Dr. Adrienne Matheson, and Dr. Martin.

[11] A key issue that has arisen causing friction between the parties is the issue surrounding the pronoun to be used as it relates to B.C. The Applicant proposes that a cautious approach be taken until an assessment has been conducted as it relates to B.C. and the determination of which pronoun to use. The Respondent asserts that B.C. be referred to as male.

[12] A Case Conference was held on July 2, 2021. Justice Summers ordered, on consent, that the parties shall retain an expert who has necessary expertise in gender dysphoria/gender identity issues to assess B.C. Justice Summers indicated specifically that the parties shall wait until July 16, 2021, to obtain as many responses as possible from the specialists contacted regarding their willingness and availability to accept such a retainer. In the meantime, the parties shall, as soon as possible, contact Dr. Arthur Leonoff to determine his availability to meet with them during the week of July 19, 2021, or as soon as possible thereafter, to discuss and obtain his advice with respect to the choice of expert to conduct the assessment. If the parties are unable to agree on the choice of an assessor or agree on certain issues regarding B.C.’s return to school in the fall, either party may seek leave to bring an urgent motion.

[13] Following the July 2, 2021 Case Conference, the parties agreed to have an initial meeting with Dr. Jennifer DiFiore. The Respondent had his initial meeting with Dr. DiFiore on or about October 13, 2021 and did not agree to proceed with an assessment with her.

[14] The Respondent asserts that significant research was conducted to determine who the best assessor would be for B.C. and to perform the court-ordered assessment (on consent).

[15] An assessor has not been selected by the parties as of the date of this motion.

Issues:

[16] There is one singular issue in front of the court:

A. Which assessor, with the necessary expertise in gender dysphoria/gender identity issues, shall be appointed to assess B.C.?

Decision:

[17] The qualifications of various professionals were presented for review at this motion.

[18] The Applicant initially supported Dr. Feder as the service provider best equipped to assess B.C. However, Dr. Feder had retired when contacted by the Applicant. The Applicant asserts that she “asked around” and was provided with Dr. DiFirore’s name by someone who worked at CHEO. The Applicant supports the “Gender Affirming Model” as supported by Dr. DiFiore.

[19] The Applicant has advised the court that Dr. DiFiore can commence the assessment in a timely manner. She has also advised that the initial consults were paid for by way of OHIP billing because of a family doctor referral and that a report preparation fee would be expected to be paid out of pocket in the estimated amount of $1,000.00. Further, depending on the number of meetings required, the report would be produced two to three months following the first meeting with B.C. The assessment would be completed in the Ottawa area and would consist of an initial consult with several follow-up meetings.

[20] The CV of Dr. DiFiore was presented as an exhibit to the Applicant’s sworn Affidavit of March 11, 2022.

[21] With respect to the Respondent’s choice to use Dr. Zucker, the Applicant asserts that Dr. Zucker is a controversial figure and provided various internet addresses to reference articles written to substantiate the Applicant’s assertions. The Applicant references Dr. Hendry in her Affidavit and mentions a connection between Dr. Zucker and Dr. Hendry.

[22] The Affidavit of Dr. Feder dated January 13, 2022, was reviewed.

[23] The Respondent does not support the engagement of Dr. DiFiore for the purposes of assessing B.C. The Respondent asserts that Dr. DiFiore is certified as a pediatrician with no specific training as it relates to the conducting of an assessment save for her spending one day per week at the CHEO clinic during her residency. The Respondent questions Dr. DiFiore’s process.

[24] The CV of Dr. Zucker was presented as an exhibit to the Respondent’s sworn Affidavit of November 12, 2021, and as an exhibit to Dr. Zucker’s Affidavit of April 20, 2022.

[25] The Respondent has advised the court that Dr. Zucker has confirmed that he is willing and able to assess B.C. immediately and the report associated with same will be completed within thirty (30) days thereafter. He further advised that the process would take 3-4 days and that the assessment would occur in Toronto, ON. The estimated costs of the assessment are $4,000-$5,000 (plus travel and accommodation cost). The Respondent did address the negative press that Dr. Zucker has faced and directly addressed the issues between CAMH and Dr. Zucker with a copy of the Minutes of Settlement dated October 1, 2018, attached as an exhibit to his November 12, 2021, Affidavit.

[26] The Respondent also presented the CV of Dr. Carol Hendry as an exhibit to his November 12, 2021 Affidavit. The estimated timing of the assessment with Dr. Hendry was less precise as there was no update since October 2021 provided. The main assessment would occur in Burlington, ON and some parental intake meetings could be held online.

[27] The Affidavit of Dr. Zucker provided additional information with respect to the way the assessment would be conducted, in that, it specified what would happen with each event and the estimated duration of each.

[28] The analysis performed to determine which assessor should be appointed to assess B.C. is comprehensive in nature. That is, many issues have been examined to reach a decision. The key inputs to the decision are timing, cost, location, and credentials of the proposed assessors.

[29] The Applicant’s Notice of Motion was very narrow in the request made of this court. The request for the purpose of an assessment was exclusive to the use of gender pronouns. This narrow scope was not necessarily outlined as the type of assessment that was agreed upon on July 2, 2021, wherein Summers, J. ordered the completion of an assessment. Gender pronouns were not the sole focus of the assessment as outlined in the Endorsement of Summers, J.

[30] Based on a comprehensive analysis, it is clear that Dr. Zucker has extensive experience with the type of assessment that is being sought. The timing of this report is key. That is, Dr. Zucker can provide the report in an expeditious manner. The assessment must proceed immediately. The assessment was ordered on consent, on July 2, 2021. By the time this assessment is completed, the parties will be approaching or perhaps have exceeded a one-year delay. Given B.C.’s age and the nature of the issues being addressed, this assessment must be prioritized.

[31] Dr. Zucker has completed numerous assessments of the nature as the one being sought. The Respondent has asked for specific terms to be included in the assessment. The court shall not interfere with the process that Dr. Zucker has in place. The various parameters of the assessment as requested by the Respondent may consider the issues raised but I am not going to direct how the assessment is completed. The process established by Dr. Zucker shall be carried out with no interference. Further, both parties must ensure maximum participation and cooperation with the process.

Order to go as follows:

1. Dr. Kenneth Zucker shall be appointed to conduct an assessment as the needs of B.C., particularly in relation to the possibility that B.C. may be experiencing gender dysphoria and/or other factors causing B.C. to request (at times) to be referred to as male, and the needs of B.C. in relation to same.

2. Dr. Kenneth Zucker shall assess B.C. in his normal course and may consider and provide commentary as part of his assessment on the following issues:

a. Whether B.C. is experiencing gender dysphoria;

b. If B.C. is experiencing gender dysphoria, what recommendations are made to support B.C. while she is experiencing gender dysphoria;

c. The degree to which, if any, B.C.’s behaviours are impacted by her status as a fraternal twin or the high-conflict nature of B.C.’s parents’ separation;

d. If B.C. demonstrates a consistent desire to identify as male or female;

e. If it is in B.C.’s best interest for the parties and third parties involved with B.C. to refer to the child with gendered pronouns at this time and, if so, which gender?; and

f. If B.C. is experiencing gender dysphoria, what is the recommended course of action for B.C.?

3. The parties shall immediately and certainly no longer than fourteen (14) days from the release of this decision, execute Dr. Zucker’s retainer agreement and any other documentation that Dr. Zucker deems necessary to commence the assessment.

4. The costs related to the assessment by Dr. Zucker shall be shared equally (50/50) by the parties and shall be paid immediately and shall not delay the commencement of the assessment.

5. The parties shall attend for all necessary attendances as deemed by Dr. Zucker. The parties shall ensure that B.C. attends for all necessary attendances as deemed by Dr. Zucker.

6. If the parties cannot agree on the issue of costs on this motion, each party shall submit three-page maximum costs submissions with an attached Bill of Costs no later than June 14, 2022. If a party fails to submit their submissions by June 14, 2022, they will be deemed to have forfeited their right to submit such submissions.

Madam Justice Tami L. Waters

Date: June 6, 2022