The program and materials at this year’s OBA Institute on February 7 were outstanding, particularly in the area of parenting law. Key take-aways for family mediators, arbitrators and parenting coordinators included: 

  1. Justice Nicole Tellier presented an excellent paper on “The Mental Health Professional as Expert: Options and Ideas for Your Tougher Parenting Cases”. She spoke about section CLRA 30 assessments, noting:
  • It is no longer necessary to establish a clinical issue (Glick v Cale, 2013 ONSC 893 (CANLII)
  • The use of clinical records and reports from ‘participant experts’ and the scope of their evidence has been clarified by Westerhof v Gee Estate 2015 ONCA 206
  • An expert’s lack of impartiality is more likely to result in a finding of inadmissibility rather than have it go to weight. (White Burgess Langille Inman v Abbott and Haliburton Co, 2015 SCC 23)
  • Section 30 CLRA parenting assessments have become extremely expensive and time consuming, can take an inordinate amount of time to complete, and the quality of assessors ranges widely. She noted that s. 105 of the Courts of Justice Act is under-utilized and can be usefully resorted to in the right cases (“where the physical or mental condition of a party to a proceeding is in question, the court, on motion, may order the party to undergo a physical or mental examination by one or more health practitioners.”)
  • Justice Tellier also noted that clients are routinely asked by assessors to sign comprehensive consents that have the effect of releasing all privacy in their records. She suggested that counsel should not permit clients to sign such consents, and instead should obtain consent from their client for counsel to receive the medical records, review them for relevance and prejudice and determine which records they wish to assert common law privilege over. Arbitrators should follow the same process as judges for resolving disputes about production of medical records: 
    • Counsel provides other counsel with redacted copy of records 
    • Opposing counsel brings motion for further disclosure
    • Counsel provides entire record,  unredacted to the arbitrator
    • Arbitrator determines if the client’s privacy interest is more important than the probative value of the unredacted material. If the arbitrator has enough evidence on the record already to determine the issue, they should decline to order production of unredacted records. 
  1. Professor Nick Bala also spoke about parenting assessments. He notes that they are a challenging, stressful and threatening process for clients, and that parties need to fully appreciate the impact of the process before consenting to an assessment. He also noted that counsel do not always fully prepare their clients for an assessment as well as they might, saying that clients need to understand the importance of being honest and candid without treating the assessment as a therapy session.
  1. Novalea Jarvis presented an outstanding overview of the relevant statutes dealing with experts in parenting disputes and an extensive series of forms and endorsements for various process options, including for when the court or an arbitrator appoints their own expert, an issue that can arise in family arbitrations involving children. Some of the additional schedules of great value to arbitrators include:
  • Guide to Determining if the Assessor Has the Necessary Credentials, Experience, Education, Skills and Training
  • Investigating the Expert
  • Terms Which May Be Included in an Order (or Award) Appointing an Expert or Assessor 
  1. Joanna Radbord highlighted the critical changes to the law of costs in family cases resulting from the Court of Appeal’s decision in Beaver v Hill (2018 ONCA 840-leave to appeal 2019 CanLII 60221 SCC). In that case:
  • The motions judge awarded Ms. Beaver costs of just over $315,000 in relation to her claims for custody, child and spousal support. The motions judge received extensive submissions, a detailed bill of costs from Ms. Beaver and made findings of fact that Mr. Hill was primarily responsible for the extensive delay in the case; that his positions and behaviour were in many respects unreasonable, with aspects of his conduct “oppressive” and “highly unreasonable”; and that Ms. Hill’s conduct had been consistently fair and reasonable. 
  • Ms. Radbord noted that Mr. Hill is likely one of the wealthiest people in Canada, whereas Ms. Beaver is a stay at home parent and university student. 
  • The Court of Appeal ruled that the motions judge had erred in her costs determination by failing to adequately consider the principle of proportionality, finding that she did not consider whether a costs award of $300,000 was proportionate to the the issues raised on the motion. Ms. Radbord noted that:
    • The Court of Appeal did not defer to the motions judge’s findings of fact
    • The principle of proportionality endorsed by the Court of Appeal did not consider both parties’ bills of costs and ability to pay
    • The long-standing principle that costs awards in family law cases should generally approach full recovery was rejected
    • The Court of Appeal ruled that in cases where a principle is at stake, settlement is not expected and there is therefore no obligation to make an offer to settle. 

By Hilary Linton, a Toronto family lawyer, mediator, arbitrator, Dispute Resolution Officer and trainer.

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