This was a pertinent case adjudicated by the Ontario Court of Appeal.
The parties met in 2006 and dated intermittently until June 2009. They lived together briefly for approximately six weeks in March and April of 2008. During this brief cohabitation, the mother became pregnant with their son.
At the time of trial in 2013, the parties’ son was six years old. They each had two children from a previous relationship and the father also had a new baby. The mother was the primary parent of the six year old boy and the father spent significant periods of time with him.
The parties were in continual conflict over parenting time and the parties went to Trial over the issue of overnights for the father.
The parties engaged an experienced child psychologist, Dr. Irwin Butkowsky. Dr. Butkowsky prepared a report for Trial. He had known the parents and the child for several years. He recommended that the father have overnights.
The mother disagreed with Dr. Butkowsky’s report and retained Dr. Peter Jaffe to perform a “critique” of Dr. Butkowsky’s report.
The Trial Judge admitted Dr. Jaffe’s critique into evidence despite the fact that it did not meet the standards set out in R v Mohan,  2 SCR 9, (“Mohan”) but gave the report little weight.
There has been some concern about the lower threshold of “helpfulness” that is often applied to evidence in family law cases. However, in Mayfield v Mayfield (2001) 18 RFL, (5th) 328, Justice Wein stated that the threshold of “helpfulness” that is frequently used in family law cases was too low based on the criteria as set out in Mohan.
The Trial Judge found credibility issues with both parties. The parties both made questionable allegations against each other. The father accused the mother of using marijuana. The mother tried to establish that the father was narcissistic, had an alcohol abuse problem and had physically abused her. Dr. Butkowsky was aware of all of these accusations made by of the mother and still determined that the child would be safe having overnights with the father and that it was in the child’s best interests.
The mother appealed the decision of the Trial Judge on the grounds that the Judge gave insufficient reasons, the Judge’s decision was not supported by the evidence and that the Judge erred by not making an specific Order for custody in her favour and by delegating his authority to the assessor, Dr. Butkowsky.
The Ontario Court of Appeal determined that the Trial Judge had given sufficient reasons. The mother was simply unsatisfied with the ruling.
The Court of Appeal determined that the Trial Judge’s decision was supported by the evidence. The Trial Judge did consider the critique supplied by the mother’s expert, Dr. Jaffe even though it was questionable whether this report was even admissible for the reasons outlined, above.
Although it is true that a Judge cannot delegate his or her authority and cannot make an Order requiring parties to attend mediation/arbitration unless the parties consent, there was evidence that the mother did consent to the mediation/arbitration. In giving her evidence during cross-examination, the mother repeatedly stated that she would be in favour of managing future parenting issues with a mediator/arbitrator or parenting coordinator.
One of the curious lessons of this case is the costs award. There was an exceptional and long litigious history. The mother was ordered to pay the father $500,000 in costs at Trial over the simple issue of overnights. She was also unsuccessful at the Appeal and costs were awarded to the father in the amount of $40,000.