LAU v IBU, 2016 ABQB 74

Court of Queen’s Bench of Alberta Citation: LAU v IBU, 2016 ABQB 74 Date: 20160209 Docket: 4803 158166 Registry: Edmonton Between: LAU Plaintiff - and - IBU Defendant _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Peter Michalyshyn _______________________________________________________ I. Introduction [ 1 ] This was a trial involving extreme parental alienation by the defendant father against the plaintiff mother. It was, as counsel for the father understated it, an unusual case.

It was that largely on account of the father’s conduct of it. [ 2 ] The starting point was an expert’s finding of parental alienation leading to the father’s contact with his children being suspended on an interim basis. That was some 16 months before trial. In that same 16 months the father took no reasonable steps to regain access. At trial through counsel the father argued that largely on account of not having seen the children for so long, there was really no point in his testifying, and so he did not. [ 3 ] In the result, and for reasons which follow, the divorce is granted, on the ground of cruelty.

Sole custody and all related and necessary decision-making powers are granted to the mother. [ 4 ] The father’s access to the children will continue to be closely guarded. At the end of trial, and on the eve of the holiday season, the parties agreed to limited, supervised contact between the children and the father, and to monitored communications between them, including the exchange of Christmas gifts. These arrangements were with the mother’s consent. [ 5 ] The children, 10 and 12, love their father. They want him in their lives. Their mother too wants him in their lives. It is

hoped that a process of re-integration will occur soon. Until then, however, it remains in the children’s best interests that any contact with the father unfold only with the mother’s consent, or be justified by the father showing a material change in circumstances from those presented at trial. II. Background The pleadings [ 6 ] The parties were married on December 27, 2001 after co-habiting from September 1, 1996. They separated on July 29, 2011. There are two children of the marriage. As at trial their son was 12, their daughter 10. [ 7 ] The issues raised in the pleadings for this trial are as follows:

(1) For the plaintiff mother, in her statement of claim filed September 27, 2011: a. Divorce, on the basis of separation for at least one year, and of physical and/or mental cruelty; b. Sole custody of the two children of the marriage, with joint decision-making for educational and medical matters; c. Day to day parenting to the plaintiff mother, reasonable access to the defendant father

(2) For the defendant father/plaintiff by counterclaim, in his pleadings filed July 11, 2014: a. Divorce, on the basis of basis of separation for at least one year, and of physical and/or mental cruelty including abuse of the children “emotionally, physically, psychologically and racially”, and of “adultery; deception; lies; dishonesty and alcohol abuse”; b. Sole custody of the children, primary residency, sole decision-making to the father, and reasonable and generous access to the mother; c.

The father’s defences/claims are stated to be based on the mother’s attempts to alienate the children from him; the mother’s “extreme violence (made worse by alcohol abuse)”; the “catalogued history” of the mother, and of her mother, father and brother, of “emotionally [sic], physical, psychological and racially abusive [conduct] toward our children”; the mother’s “long standing history of emotional instability, counselling, binge drinking/alcohol abuse and adultery”; and the mother’s “history of leaving the kids in the house unattended and dropping them off in an unplanned place”. [ 8 ] The mother easily proved the straightforward claims made in her pleadings.

By comparison the father’s contentious claims were entirely unproven. The father’s failure to testify [ 9 ] At the opening of trial the father, through his counsel Ms. Moore, produced a “Brief Position Statement’ purporting to re- define his pleadings. [ 10 ] In this ‘position statement’ the father purported to withdraw his allegation of adultery.

However, none of the other pleaded grounds for divorce – “deception; lies; dishonesty and alcohol abuse” – where similarly withdrawn. [ 11 ] The ‘position statement’ attributed to the father goes on to say: [The father] acknowledges he has made errors with respect to his overreaction, based on unresolved emotions from a high conflict separation with [the mother], and that at times anxiety, genuine fear for his children's well-being and depression instigated him to make allegations that were unfounded and unfair. [He] regrets this approach in past, and genuinely moving forward seeks to heal his relationship with his children and to do so in a therapeutic fashion as appropriately directed by the court.

In time, it is his hope his relationship with this [sic] children and his own personal growth will result in a healthy relationship with his children, and that he learns to cope much better with his feelings and emotions around past negative events. [ 12 ] The father says nothing in his ‘position statement’ about reconciling with the mother as part of the best interests of the children and co-parenting. [ 13 ] What’s more, his apparently sincere if vague acknowledgement of past inappropriate conduct was not always apparent from his conduct leading up to the trial, and of the trial, details of which will soon follow.

Nor was it apparent from the virtual absence of evidence brought forward at trial around the father’s therapy, healing and/or personal growth to date, at least from the time contact was suspended in August, 2014, or the father’s concrete future plans on any of these points. [ 14 ] It was a reasonable expectation that based on the ‘position statement’ the father would testify to back up its many assertions. [ 15 ] The father’s position at trial was next articulated, again through Ms. Moore, in her opening statement delivered after the close

of the mother’s case on day four of the trial. [ 16 ] Ms. Moore stated that the father acknowledged that “at various time his actions were wrong and he allowed his emotions to overcome his reason”. Ms. Moore went on to state, amongst other things, that: (1) “[The father] is a Nigerian man who has experienced systemic racism and related discrimination through his entire life including in the time he has lived in Canada”;

(2) That “… systemic racism is a reality in both our criminal justice system as well as throughout Canadian society”; (3) “[The father] asserts that the issues of racism and culture are central within this case. Despite what he has experienced to be systemic denial, minimization and disregard for this potential factor, in how he is viewed, perceived, and treated by various agencies. Regardless of the impact that racism has and will continue to have on him, he has maintained a strong Nigerian identity and taught both of the [family’s] children about their Nigerian cultural history, language, values, good, teachings and practices”;

(4) The father has been very alarmed that none of the professionals to date have worked with the children and himself and have taken these issues of cultural identity and racism seriously into account at all within their work or assessments.

He asserts accordingly many of the outcomes and results have not been entirely fair, representative, or accurate”; (5) “He acknowledges primary custody and related decision making is not a potential at this time …”; (6) “[The father] seeks accommodation of his cultural identity within the therapeutic relationship as is necessary and in accordance with provincial, national and international human rights laws. He is not opposed to having this be through a registered psychologist with related experience.

He is not willing to have the process dictated or imposed by [the mother]. (emphasis added). [ 17 ] Again, it was a reasonable expectation – his ‘position statement’ now supplemented by Ms. Moore’s opening statement – that the father would indeed testify to back up these many assertions. [ 18 ] So it was striking to hear Ms. Moore for the father hint, at the end of day four of the trial, that the father might not testify. That position was made somewhat clearer at the end of day five.

It was made certain on day six. [ 19 ] The father was made aware that his decision not to testify in a custody/parenting trial would be highly unusual. He knew or ought to have known, and doubtless too Ms. Moore, that Ms. Moore’s many representations of the father’s position were not evidence. To the extent they purported to speak to facts, these many representations were irrelevant. The father and his counsel knew or ought to have known that the father’s decision not to testify would leave the court with a dearth of evidence to support his cause.

It would leave the evidence of the mother, and of other witnesses having dealings with the mother and the father and/or the children, as the only non- expert evidence before the court touching on the children’s best interests. [ 20 ] The father’s decision not to testify was explained by Ms. Moore during final argument. [ 21 ] Ms. Moore began her submissions in final argument by stating that “For [the father] this trial was not a formal custody and access trial”. This followed, she said, from the father’s objection that he had been denied all contact with his children from August, 2014.

It followed too from the fact that his October 23, 2015 application to adjourn the trial had been refused, as had his subsequent application to have a “culturally competent” lawyer for the children appointed to ensure that their voices would be appropriately before the court. [ 22 ] Ms. Moore said further that the father felt it “would not be the wisest use of the court’s time” to have testified, and to have been cross examined, on what Ms.

Moore said were outdated reports, and on materials which she said the father acknowledged were largely “reactionary and emotional” on his part. [ 23 ] (By way of comment, I found nothing particularly outdated in the reports before me. And I cannot accept the implication that the father has withdrawn from his ‘reactionary and emotional’ positions. I do not know that. It was for the father personally to attempt to withdraw from or explain his many controversial statements and other material before the court attributed to him.) [ 24 ] The father was present throughout the trial. He was engaged in the trial process.

He was represented by counsel. He had previously been represented by other counsel. Before me there was some suggestion that he parted ways with his previous counsel over some dissatisfaction or disagreement. Be that as it may, there was nothing before me leading up to and including the trial to suggest that the father was dissatisfied with Ms. Moore’s representation, nothing to suggest that he disagreed with Ms. Moore when she indicated and offered reasons for the father’s decision that he would not testify.

In all, there is no reason but to accept that the father made a decision that he considered informed to proceed in the manner that he did. Evidence regarding contact [ 25 ] Before turning to the evidence at trial I will deal with the events following the father’s loss of all contact with the children on August 12, 2014. [ 26 ] The father first applied to restore any access to his children more than a year after contact was suspended on August 12, 2014. Of course there was no explanation at trial from the father for this extraordinary delay. [ 27 ] At trial, Ms.

Moore submitted that the father had little idea how to proceed in the face of the August 12, 2014 order. He blamed problems with his prior counsel, and a lack of direction from the case management justice. [ 28 ] These submissions have no merit, for the following reasons:

(1) first and most obviously, Ms.

Moore’s submissions are not evidence of anything; (2) there is no evidence of any unsound representation by the father’s prior counsel; (3) the August 12, 2014 order on its face expressly contemplates an application to revisit contact, once the parties had reviewed the recently-provided PN8 report leading to the interim suspension of contact; (4) the transcript of the August 12, 2014 proceedings could not be clearer that the case management justice was prepared to hear a further application from the father for some form of supervised access; no leave would be required, but the father would have to put forward an access plan, and would have to address the counselling recommendation in the Practice Note 8 (“PN8”) report relied on to suspend contact; (5) the recommendation for counselling for the father was identified clearly in the PN8 report; likewise, a recommendation for counselling for the father had also been identified much earlier, by psychologist Dr.

Ross, in his report of October 31, 2012 at pages 20- 21. [ 29 ] The father’s counsel at the time of the August 12, 2014 order withdrew in November, 2014. New counsel for the father, Ms.

Moore, came on in about February, 2015. [ 30 ] In a case management hearing in February, 2015 the child custody/parenting issues then set for trial in March, 2015 were adjourned, at the father’s request, to December, 2015. [ 31 ] (I pause to note that the case management justice on August 12, 2014 had offered to intervene to help the parties seek an earlier trial date than March, 2015, mindful of the interim order barring all contact between the father and the children. There is nothing before me to suggest the father sought earlier trial dates.

To the contrary, and in the face of the no-contact order, the father successfully adjourned the trial some nine months from March, 2015 to December, 2015. On October 23, 2015 he applied to adjourn the trial yet again. That application was denied. Had it been granted, a new trial would likely have been booked only in late 2016/early 2017.) [ 32 ] The father applied on May 6, 2015 to withdraw from case management.

That application was denied in reasons reported at 2015 ABQB 500 , issued August 7, 2015. [ 33 ] The May 6, 2015 application, and the mother’s reply to it, are supported by sworn affidavits filed with the court. I have not referred to those affidavits as they are not, without more, evidence in the trial. [ 34 ] The August 7, 2015 reported decision, however, is before me.

On the issue of re-establishing contact between the father and the children, the case management judge found at paragraph 8 that as of May, 2015 the parties and their counsel had narrowed supervised access to the identification of a mutually acceptable individual or organization to provide supervision. Before the case management judge the father’s counsel expressed some optimism that this issue could be resolved through agreement. By July 21, 2015, that optimism was gone.

According to the case management judge, the father’s counsel was then writing to the court giving notice of the father’s intent to bring “an urgent application with respect to reinstating [his] parenting time pending trial…” [ 35 ] All of this led to an application heard August 24, 2015. Evidence regarding the August, 2015 application [ 36 ] By agreement, and only after having heard final argument in the trial, the parties agreed to put before me the father’s materials filed in support of an August 24, 2015 application for reinstatement of parenting.

The mother’s reply affidavit of August 25, 2015 was also put before me. No transcript of these proceedings was made available. [ 37 ] The August 24, 2015 application materials are revealing. The father sought an order reinstating parenting time but only “subject to the suggested reintegration process by a duly qualified and cultural competent expert”.

No such process or expert was then identified, or ever has been. [ 38 ] The father grounded his application on, amongst other things, “cultural identity rights [that] are protected under both domestic and international laws and instructions including the United Nations Universal Declaration of Human Rights and the United Nations Covenant on the Rights of the Child”.

There was no evidence before the court on August 24, 2015 – or at any time in the trial or in any of the applications leading up to it – of any violation of cultural identity rights. [ 39 ] I have reviewed the father’s affidavit with caution, first because he did not testify and could not therefore be challenged in cross examination on his many averments, and second, because his affidavit in large part blames others for the delay in his application to re-instate contact with the children. [ 40 ] For example, in his affidavit the father blames others for his failure to be provided with counselling; he blames PN8 report author Ms.

Torres for the conclusions reached in her report, noting further that he filed a complaint against her to her professional regulator; he blames the court and, inferentially, the case management judge, for suspending access and amongst other things “directly restricting [the children’s] Nigerian cultural identity rights as well”, noting further that he has filed a “judicial complaint” against the case management judge; he indicates that he has sued the RCMP for alleged misconduct, discrimination, and negligence; finally, he says that he has attended counselling sessions since August 12, 2014 for the “great emotional, mental and spiritual stress [the order] caused me”.

No further evidence of such counselling sessions was before me at trial. [ 41 ] The father also blames his previous counsel for failing to ensure he fully understood how and when to bring an application to restore access. He blames unspecified “other issues” for the breakdown in his former solicitor-client relationship “that left me no choice but to release my former counsel”; the father exhibits a letter to this former counsel, dated October 7, 2014. I attach no weight to and

disregard any allegations of negligence or misconduct against the lawyer. [ 42 ] The father states in his affidavit that he has sought out a “culturally competent expert” for the children. He exhibits a letter attributed to this individual together with her CV. The letter is undated and unsigned. It is evidence of nothing. (This is the same individual the mother speaks of during her testimony, whom she tried to call on the telephone, unsuccessfully, and tried to contact by email, again unsuccessfully.) [ 43 ] The father states further in his affidavit that his present counsel, Ms.

Moore, has successfully identified a lawyer who is both a mother and of African ancestry. This lawyer is held out as a possible counsel for the children. The father does not identify this lawyer in his affidavit. (Indeed this lawyer’s identity was withheld for months after the August 24, 2015 application. It was revealed only in court on December 3, 2015, when the father renewed his application to have counsel appointed for the children for the trial starting the week following.

That application was denied.) [ 44 ] Turning briefly to the mother’s reply affidavit, consistent with her evidence at trial it sets out that she was prepared to consent to reasonable reintegration of the father with the children. She invited the father’s proposal in that regard in early February, 2015. She suggested twice-monthly supervised visits with the children’s counsellors Mr. White and Ms. O’Sullivan. She invited further details regarding the father’s proposed “culturally competent expert”. She received no response to any of it. The mother then telephoned the proposed professional, in mid-September, 2015.

She left a message that was never returned. She then emailed this individual on September 22, 2015. She received no reply. The email states, amongst other things, that the mother is in favor of the children being reunited with their father, but on conditions. [ 45 ] The father’s August 24, 2015 application for access was adjourned sine die for further details by the father regarding his proposed supervised parenting plan. The application was never renewed prior to this trial.

Further pre-trial steps [ 46 ] Turning back finally to the September, 2015 time-frame, as noted the case management judge heard and decided the mother’s pre-trial applications on September 22, 2015. Amongst other things, the September 22, 2015 order authorized Ms. Torres to update her PN8 report for trial. [ 47 ] The whole of the case management order of the September 22, 2015 was appealed on October 15, 2015.

It is worth noting, relevant to the father’s claims of cultural insensitivity, that his October 15, 2015 Notice of Appeal alleges amongst other things violations of s. 7 Charter rights and of the father’s “cultural identity rights”. [ 48 ] Of particular importance in the appeal, and in a related application in the Court of Appeal to stay enforcement of the September 22, 2015 order, were the father’s objections to the PN8 report, and the direction by the case management judge authorizing Ms. Torres to update her report for trial. [ 49 ] The father’s objections were also before me as part of the pre-trial process.

And so I became aware of certain correspondence between Ms. Moore and Ms. Torres leading up to the stay of enforcement application. The first is a letter of November 12, 2015. The letter puts Ms. Torres on notice of the father’s appeal and of the impending application to stay enforcement of the September 22, 2015 order pending the hearing of the appeal. The letter states that any steps taken in face of the impending stay application would be “unethical and unprofessional” on Ms. Torres’ part.

It suggests such steps “will have likely perpetuated mental/emotional harm on both of [the father’s] children…” [ 50 ] The November 12, 2015 letter was followed by an email of November 18, 2015 from Ms. Moore to Ms. Torres which again objects to Ms. Torres’ continuing involvement, and states amongst other things, that: My client maintains neither himself or [sic] his children should be further victimized by the system or any professionals merely to align with government priorities or legal position.

He recognizes unfair judicial and professional deference to government in AB has long been the norm, but believes eventually transparency, accountability and fairness will return as the ‘norm’, similarly as was demonstrated nationally when PM Trudeau was selected by the majority of Canada. [The father] again asserts in light of all of these facts, your choice to proceed [with updating her report] regardless is wrong ethically, professionally and morally. … [The father] will pursue every avenue to obtain justice for himself and his children, who he asserts have wrongfully and systematically been alienated from him in a deeply flawed, and biased legal/expert process. [ 51 ] The stay of enforcement application in the Court of Appeal was dismissed, and the appeal was abandoned soon after – all just days before the December 6, 2015 commencement of the trial.

Evidence of the father’s contact with the children after August, 2014 [ 52 ] As ordered by the case management judge on August 12, 2014 the father was to have no contact with the children until further order. The prohibition could not have been clearer. [ 53 ] In her evidence at trial, the mother identified a series of text messages on one of the daughter’s phones sent and received after August, 2014. These are clearly communications to and from the father. Two of the father’s texts are worth quoting:

[Ms. Torres] wrote to the court that there is no abuse and that you and [the son] made up all the stories up because I told you to do so. The important thing is, you and your brother know the truth. Always remember that daddy love you and [the son]. All these lies will come to pass. The truth will come out” . (emphasis added). … Pls tell [the son] so he is aware. Both of u remain strong now than ever before. Look after yourselves. They can lie and twist things but they will never break us. (Emphasis added) … Please keep in touch both of you because daddy miss you. Always. Be strong darling.

You will always be my girl.. [the son] also will be forever be my boy. The truth will come out . Remember, always pray [the daughter]. Tell [the son] do what is happening and make sure you delete all these texts immediately. Let me know when u delete them. (emphasis added) [ 54 ] At the risk of repetition but to cement the point, the father did not testify to deny the truth of these text messages. [ 55 ] These texts are a clear breach of the August, 2014 order prohibiting contact. They are evidence, from the father’s own hand, of his alienating behavior.

They are evidence as well of his disregard for court orders. [ 56 ] With these things in mind, I now turn to the evidence at trial. III. Key Evidence Practice Note 7 (“PN7”) reports [ 57 ] Much concern was expressed in cross examination around the very propriety of a PN7 intervention in this case.

Not much mentioned was the fact that both parents’ then-counsel consented to the intervention as being in the best interests of the children, and as ordered December 30, 2011. [ 58 ] So it is that within the first year post-separation the parties agreed that it was in the best interests of the children to engage in a PN7 intervention, leading to reports of May 3, 2012 and November 5, 2012. [ 59 ] The PN7 intervention began to unfold in the late winter/spring, 2012. An interim report was prepared on May 3, 2012.

Amongst other things the report noted: the mother’s readiness to participate cooperative in the process; the father’s reluctance to engage in therapeutic counselling, jointly with the mother, or by himself; his refusal to participate in further joint meetings after the initial such meeting; that during the intervention the father applied for and obtained an Emergency Protection Order against the mother (contrary to his agreement to pursue no court applications during the process, and set aside soon after it was obtained); that while no firm conclusions could be reached, the children appeared to be coached and rehearsed when they complained about their mother; and that it was recommended that Child and Family Services (CFS) become involved with the family to investigate allegations of child emotional and physical abuse and/or false allegations of the same.

The report finally recommended that if CFS investigations led to no concerns, the PN7 team should continue its attempts to intervene with the family, the alternative to which would be a PN8 bilateral assessment. [ 60 ] The May 3, 2012 report notes the father’s complaints of racism by the mother and her family.

The report mentions no further such complaints, no complaints of racism writ large, nor of racism of a systemic nature, nor of any alleged lack of cultural insensitivity, or anything of the like, and not by the PN7 intervention team or in its processes. [ 61 ] Likewise as to the PN7 follow-up report of November 5, 2012, other than a complaint of gender discrimination, again there was no new recorded complaint of racism or discrimination by anyone in particular, or at large. [ 62 ] As to any lack of sensitivity by the PN7 team or its process to the father’s Nigerian heritage, the follow-up report does note the father’s complaint that his concerns for the children’s Nigerian clothing had been “dismissed”.

That his complaint is noted does not prove that anyone dismissed his concerns, such as they may have been. It does however suggest that any complaints he did have were at least duly noted. And that such concerns were noted supports the conclusion that any other such concerns, if expressed, would similarly have been noted. [ 63 ] The follow-up PN7 report noted numerous further individual and joint sessions involving both parents. At the end of the day however the PN7 team decided to refer the case back to case management.

In doing so, it commented that “[the father] appears to be unable or unwilling to accept direction from the treatment team”. [ 64 ] I find ample evidence, uncontradicted and unimpeached by cross examination, that while the mother willingly engaged in the PN7 process, it was the father who, without justification or good reason, undermined the process and brought it prematurely to an end. Evidence of Geoffrey Ellis [ 65 ] Child and Family Services (CFS) became involved with the family by way of a supervision order made August 23, 2012, thus in the midst of the then-unfolding PN7 intervention. Mr.

Ellis was called at trial, as part of the mother’s case, to speak to CFS’ involvement. It was anticipated that a number of other CFS professionals would give evidence at trial, to be called as part of the father’s case. In the end, inexplicably, none were called. [ 66 ] Mr. Ellis was involved with the family from soon after the August 23, 2012 supervision order, then for about a year, ending on October 4, 2013. [ 67 ] He noted that CFS initially became involved to inquire into the father’s allegations of abuse by the mother. In time the focus shifted to alleged abuse by the father. To Mr.

Ellis’ knowledge and having reviewed the entire CFS file, no allegations of abuse by the

mother against the father or the children were ever substantiated. [ 68 ] Mr. Ellis described that his dealings with the father were initially positive, but soon deteriorated. In contrast, Mr. Ellis’ dealings with the mother were always positive, and only strengthened until CFS involvement ended in the fall, 2013. [ 69 ] Psychologist Dr. Graham Ross assessed both parents. Without objection by either party, Dr. Ross was not called at trial. [ 70 ] As to Dr. Ross’ March 8, 2013 assessment of the mother, it is hearsay but there is little in the report that runs contrary to all of the evidence before me.

No one particularly objected to the report being before me, with weight to be assigned in all of the circumstances. [ 71 ] As to his assessment of the father, of October 31, 2012, again no one particularly objected to the report being before me, with weight to be assigned in all of the circumstances. Dr. Ross’ assessment of the father, however, attracted somewhat more scrutiny as compared to the assessment of the mother. [ 72 ] For example, Dr.

Ross noted in his report that on a Personality Assessment Inventory (PAI) the father engaged in “positive impression management” to such a degree that the outcome of the test could not be considered valid. Dr. Ross noted: … his pattern of responses suggests that he tends to portray himself as being exceptionally free of common shortcomings to which most individuals will admit. As a result, he will be quite reluctant to admit to minor faults, perhaps not even willing to admit these faults to himself.

He may be blindly uncritical of his own behavior and insensitive to negative consequences associated with his behavior, tending to minimize the negative impact that his behavior has on others and on himself.” [ 73 ] During cross examination of Mr. Ellis, Ms. Moore seized on Dr. Ross’ comment that the father “may be blindly uncritical” of his own shortcomings. Ms. Moore appeared to suggest that it was a critical finding, one that helped explain the father’s conduct on the whole. [ 74 ] In response, it was Mr.

Ellis’ opinion that the father’s possible inability to critique his own behavior was not the single or most important reason that the father was unable to co-parent positively. That is, it did not come close to explaining or justifying the father’s otherwise destructive and alienating behavior. [ 75 ] (I pause to make two comments emerging from this evidence. First, Mr. Ellis was not called as an expert. His opinion, however much I agree with it, is not admissible. Second, there is no evidence that the father was in fact ‘blindly uncritical’ of his own behavior. Dr. Ross just says that it “may” be so.

Without more, that comment proves nothing. What’s more, this comment is made in a report of October 31, 2012. More than three years later, the father has done nothing to show that he is, or has ever been, “blindly uncritical of his own behavior”. Or even assuming that he is or has ever been, that he has taken steps to deal with this critical aspect of his personality and/or behavior.) [ 76 ] Mr. Ellis was asked in cross examination if the father’s overall experience with racism and discrimination might help explain the way he and the father related. Mr. Ellis quite reasonably denied any such implication. Mr.

Ellis agreed that the father had “potentially” experienced racism and discrimination. Mr. Ellis had no evidence of such racism or discrimination before him. Nor was such evidence before the court. [ 77 ] If only given that the father did not testify, Ms. Moore’s questions in cross examination that pre-supposed the fact of the father’s experience with racism or discrimination were, at the very least, irrelevant. [ 78 ] Mr. Ellis’ last involvement with the family was in October, 2013. His last involvement with the father was many months before that. So it was remarkable that nearly a year after Mr.

Ellis had any in-person contact with the father, Mr. Ellis received an email from the father, on June 9, 2014. [ 79 ] The email is before the court. Mr. Ellis accurately described the email as hateful, insulting and accusatory, professionally and personally. Mr. Ellis corrected described that it contains thinly-veiled threats that Mr. Ellis will be “held accountable”. [ 80 ] There is no evidence before the court that substantiates any of the extraordinary and clearly false allegations made by the father against Mr. Ellis in the email, or at all.

It stands as yet a further example of the father’s misconduct that is unexplained in the evidence before me at trial. Evidence of psychologist Marshall White [ 81 ] Mr. White counselled the daughter both before and after the father’s contact was suspended in August, 2014. Mr. White was able to speak to the daughter’s status as of trial. He described her as a happy child. She misses her father; if there is one thing she could change in her life, it would be to see her father. That being said, she is happy with her mother. She gets along well with her brother.

She is engaged with friends and in many activities. [ 82 ] Mr. White described that as compared to pre-August, 2014, the daughter is feeling safer now. She has concluded that her mother is not as mean as her father said she was. She now specifically denies that her mother hurt her physically. (This compares to the daughter’s disclosures to Ms. Torres that the mother had abused her ‘thousands’ of times.) [ 83 ] Before August, 2014, Mr. White dealt with the father on one occasion only, in January, 2014. Though further contact would have been welcomed, the father did not reach out again to Mr.

White, although the mother did. [ 84 ] In cross examination Mr. White agreed generally that a “racialized” person might have issues dealing with counsellors who were not “racialized”. (Though Ms. Moore did not offer any such explanation, I assume that she uses “racialized” in favour of such terms

as “racial minority”, “visible minority”, “person of colour” or “non-White”.) [ 85 ] Mr. White was not asked, in cross examination, if he had any idea whether the father in this case had any concerns for racism or discrimination with the children’s counsellors/counseling, or with Child and Family Services, so far as he knew. [ 86 ] Mr. White described that the children were both shocked and distressed on learning they could not see their father after the August, 2014 no-contact order. He noted that the mother attempted to deal constructively with the situation.

She supported them, sometimes prepared their favourite Nigerian foods, made efforts to keep the kids in touch with a Nigerian friend of the father’s. [ 87 ] Mr. White stated that the kids’ attachment to their Nigerian culture had not otherwise come up in his dealings with them. Evidence of psychologist Kathleen O’Sullivan [ 88 ] Ms. O’Sullivan counselled the son both before and after the August, 2014 no-contact order. Like Mr. White, she too was able to speak to the son’s status leading up to trial. She stated that he was a happy, emotionally secure kid who was engaged and doing well.

He had never mentioned being bullied or being subjected to racism at school. [ 89 ] Ms. O’Sullivan confirmed that like the daughter, the son misses his dad. It is something that comes up in virtually every counselling session. [ 90 ] Like Mr. White, Ms. O’Sullivan dealt with the father only once, on January 22, 2014. She dealt with the mother many more times. Like Mr. White, Ms. O’Sullivan was open to having more contact with the father. [ 91 ] Ms. O’Sullivan had no idea why the father failed to attend more than one time. She was unable to attribute his absence to any perceived racism or discrimination.

She was aware of no racism or discrimination, or of any such complaints, by the father. [ 92 ] Ms. O’Sullivan’s evidence aligned with Mr. White’s regarding the children’s reaction to contact with their father being suspended. She added that it was the mother who suggested the kids write letters to their dad which in due course he would be able to read. [ 93 ] She stated that in her dealings with the son there was no suggestion that the mother was saying or doing anything negative about the father. [ 94 ] Since August, 2014, Ms.

O’Sullivan has heard nothing from the son regarding any fears or concerns he has for the mother’s parenting. Indeed, she testified that the son disclosed to her words to the effect that ‘Dad made us lie about Mom hitting us – it wasn’t true.’ [ 95 ] Regarding his Nigerian heritage, according to Ms. O’Sullivan the son has brought up that he likes certain Nigerian foods, likes Nigerian language and enjoys the company of his father’s Nigerian friend and his daughter. According to Ms. O’Sullivan, the son is proud of his Nigerian given name.

He is aware of his Nigerian culture, but appreciates that it exists alongside his mother’s English culture, and his own Canadian culture and citizenship. He has never brought up anything else in particular around his bi-racial status. The Practice Note 8 assessment [ 96 ] On June 18, 2013, some eight months after the involvement of CFS and the PN7 team, the parties agreed to enter into a Practice Note 8 bilateral assessment. The parties agreed further that psychologist Perlita Torres would conduct the assessment. [ 97 ] At trial Ms.

Torres was accepted as an expert in forensic psychology specializing in custody assessments and able to provide expert opinion evidence in this regard. [ 98 ] The parties each personally signed a Retainer Agreement and, as a separate document, a Statement of Understanding to Participate in a Forensic Psychological Evaluation. [ 99 ] There was no evidence at trial – and indeed Ms. Torres was not even cross examined on the issue – that the father raised any concerns to Ms. Torres with regard to his Nigerian culture, or with regard to racism, or discrimination, or anything of the like. [ 100 ] To the contrary, Ms.

Torres testified that on learning of the father’s Nigerian origins, she specifically inquired of his then- counsel whether an evaluator with some closer connection to those origins might be better suited to the PN8 task. Ms. Torres testified that she was assured by the father’s then-counsel that his client was well acculturated to western and Canadian society and culture, in the sense that he had spent a great deal of time in both the UK and Canada, in which he had obtained extensive post-secondary education and professional employment. He was described as a highly intelligent and articulate individual.

The Torres report on its merits [ 101 ] Ms. Torres’ 109-page report of August 7, 2014 was the result of more than a dozen interviews/clinical interviews with the parents and children and over another dozen occasions of psychological testing of the same individuals. She interviewed 23 others, including professionals working with the parties and the children, and collateral sources referred to her by the parties. (I am satisfied, notwithstanding cross examination and some brief evidence to the contrary, that Ms.

Torres reasonably tried to contact all collaterals provided to her by the parties, and of those contacted, reasonably summarized the information provided.) She reviewed multiple affidavits sworn by the parties, together with hundreds of pages of other records from CFS, the RCMP, and the PN7 team. [ 102 ] Certain assertions of fact, all adopted by the mother at trial, and I find proven on all of the evidence before me, stand out as

worth mentioning:

(1) Whether or not he was convicted of any offence, the father abused the mother, both emotionally and physically. He did so on numerous occasions, and at least once in front of the children as recorded in an audiotape in October, 2008;

(2) As assessed by numerous observers and professionals, the mother’s parenting on the whole has been without fault;

(3) Allegations of abuse by the mother against the father were fully investigated and found to be without merit; [ 103 ] Further, I find the following to have been proven on the evidence of Ms. Torres’ report and not contradicted by any other evidence:

(1) That to Ms. Torres the father maintained his complaints of abuse by the mother, including that “he averred that, during violence, [the mother] broke her arm hitting him”; he maintained the mother kicked him in his chest and groin, causing him to seek specialist medical treatment; she gave him genital herpes; she drank “to the point of being comatose, or being violent”; she had extra-marital affairs and told him she would poison him in his sleep; she beat the children; she has told the children that he is not their father;

(2) That the father maintained to Mr. Torres that the maternal grandmother also beat the children, while the maternal grandfather was “an evil man” who is a racist and has friends who are pedophiles;

(3) That throughout the evaluation in 2013 and 2014 the father maintained to Ms. Torres that he was employed by Alberta Health Services, an assertion he maintained until the final interview wherein he admitted to Ms. Torres that he had last worked with AHS in September, 2013; yet he told his children he might lose his job at AHS because of “racial discrimination” long after he actually lost that job; he blamed his other job losses over the years on the mother’s behavior;

(4) That he told Ms. Torres that he believed CFS professionals were disrespectful, abusive, and prepared distorted accounts; he believed that CFS was withholding or hiding evidence;

(5) He told Ms. Torres that in his view the PN7 process was a “disaster” and that he was bullied into the PN7 process by the mother’s lawyer.

(6) That he has made complaints about those who do not agree with him – including CFS professionals, the PN7 team, and the RCMP;

(7) That he told Ms. Torres that he was seeking custody of the children because they were not safe in the care of their mother, that they were on the “precipice of harm”;

(8) That he told Ms. Torres that with their mother: “the children will miss out in their cultural and religious development. He claimed [the mother] teaches the children about ghosts and spirits.

He alleged that [the mother] tells the children there is no God but there is a Big Bang theory, that Jesus Christ is a whore who married 300 wives and had many hundreds of children … that [the mother] and her family do not respect the children’s African cultural background and values … [that] the [mother’s] family is demeaning, devaluing, dehumanizing, degrading the children through offensive racial slurs and name calling.” [ 104 ] I accept the view as expressed by Ms.

Torres, and as consistent with the evidence before me, that the father has projected the children as victims of racism, bullying, and discrimination generally and from the mother and her family. The father has led the children to believe they have been victimized, lied to and racially discriminated against by police and other professionals.

The father has raised the children “in a world that is pictured as threatening [which is] inducing anxiety, anger, insecurity, and fear on these children”. [ 105 ] No evidence was before me that the children, or for that matter the father, were the victims of racial or other forms of discrimination. [ 106 ] Ms. Torres found that on a series of psychological tests the father showed consistent defensiveness and extreme reluctance to disclose shortcomings or weaknesses. As will be seen, and mindful of Mr. Block’s rebuttal report, I will say now that I accept these findings by Ms. Torres are unassailed.

These findings lead to the conclusion that the father’s psychological test measures are invalid. The father’s response style was consistent with, amongst other things, individuals who lack insight or introspectiveness, who prefer or seek out medical explanations for what are psychological conflicts, who are inclined to be self-serving, and skillful at deceiving others. [ 107 ] These outcomes, Ms. Torres was cautious to observe, are not themselves proof of the father’s personality. They are not full explanations for his behavior. Yet they are part of the entire clinical picture upon which Ms.

Torres based her final conclusions and recommendations. [ 108 ] On the whole, Ms. Torres concluded that severe, pathological alienation by the father was evident in this case. That conclusion was based on all of the information before her, and indicated by the behavior of the children, and of the father. [ 109 ] As to the children, as conveyed by Ms.

Torres, in varying degrees they were observed to behave in a manner consistent with having being alienated: they vilified their mother, including levelling accusations of emotional and physical abuse – in the words of one of the children “horrible abuses that happened a thousand times”; they claimed they were not loved by her; on the other hand, they idealized their father; they offered trivial, irrational reasons to justify their anger toward the mother; in the case of one of the children, there was a lack of guilt or ambivalence with respect to that child’s malicious treatment of the mother; both children talked about the mother in speech that was “brittle, litany-like, with artificial quality, with affect that does not match the words, without conviction, in unchildlike, adultified language, of rehearsed quality”; their stories about the mother was repetitive, lacking in detail or depth; while they vilified their mother, they expressed worry for their father and their desire to be with him, in the case of one of the children, even to move away to Nigeria; both children showed signs of having been “programmed to tell lies or fabricate information”.

[ 110 ] As to the father’s behavior, he was observed and/or the evidence showed that he conducted an “inquisition” of the children after visits with their mother; he checked their bodies after such visits, frequently taking them to doctors for no good reason, on the evidence before Ms.

Torres and before the court; he did not believe the children needed a meaningful relationship with their mother; he portrayed the mother unrelentingly as dangerous both to himself and to the children, showing her an extreme lack of courtesy and fabricating allegations of sexual, physical and emotional abuse; he denigrated the mother before the children; he involved the children in adult matters including the litigation; he exaggerated the mother’s negative attributes and omitted anything positive about her; he refused to permit the mother to attend the children’s school events and other meaningful functions; he refused to correct the children’s inappropriate behavior toward the mother while at the same time refusing to tolerate similar behavior with other adults. [ 111 ] Based on all the information before her Ms.

Torres concluded that while the mother presented no harm to the children, just the opposite was the case with the father, on account of what Ms.

Torres concluded the evidence showed, and I agree, was: “…[the father’s] severe parental deficiency and willingness to sacrifice his children’s needs (thus placing them at risk of psychological harm) in order to feed his own fragile ego, similar to those who are narcissistic alienators”. “…The data generated throughout this evaluation strongly suggests that [the father] has largely been responsible (but feels no accountability) for the havoc created in his relationships … [the father’s] accusations of child abuse, sexually inappropriate behavior, irresponsible behavior, and alienation are smokescreens for his own abusive behavior.” [ 112 ] Ms.

Torres acknowledged that the father appeared able to care for the children. She also provided concrete recommendations regarding the father’s proposed re-engagement with the children. These included that should contact be granted, it be restricted and supervised. Ms. Torres also recommended that the father engage and/or continue with counselling, and that variation in custody arrangements be revisited after the father’s successful completion of 2-3 years of intensive counselling and maintenance of positive behavioral changes. [ 113 ] It is worth noting that prior to Ms. Torres’ involvement, psychologist Dr.

Ross, in his report of October 31, 2012 at pages 20-21, recommended the father seek individual therapy. Dr. Ross was not optimistic however that the father would embrace such therapy. It is my opinion that he needs therapy to provide personal support to him, assist him to understand the consequences of his actions on the children, and to have this in the context of “support for him versus evaluation of him as a parent”.

The second issue, is the literature is clear that the individuals who benefit most from treatment perceive their relationship with the therapist in a positive way. [The father] does not perceive this to be the case, and therefore, will likely derive little benefit. Let me be clear, I am not saying the therapeutic relationship is poor, I am saying that [the father’s] perception of that relationship is that it is poor. [emphasis in original] [ 114 ] Ms. Torres prepared an update report on December 5, 2015.

The update report concluded that as of December 3, 2015 the children had demonstrated great resilience and were well adjusted in the mother’s sole custody since August, 2014. The damage to the relationship with the mother had been repaired; the children had “begun to trust and to feel secure in their relationship not only with their mother but also with extended family”. Ms. Torres cautioned however that: …they are still young and vulnerable, thus their renewed bond with their mother may still be corruptible if the situation with their father remains unchanged. [ 115 ] Ms.

Torres concluded that while both children were happy with the changes in their lives since August, 2014, both also expressed that they missed their father and wished to see him. Both acknowledged finally that re-establishing contact with their father would need to be slow and gradual. Other aspects of Ms. Torres’ testimony at trial [ 116 ] Ms. Torres was careful at trial to note that the father’s outcomes on psychological testing did not prove he was lying, but rather made it impossible for her to accept everything he said at face value.

In her opinion, the root problem of the test outcomes was not any misunderstanding of the test instruments on the father’s part, but rather a reluctance by the father to disclose accurately his strengths and weaknesses. [ 117 ] Ms. Torres described a highly complex assessment with many issues, but not one that, in the end, was in doubt regarding her conclusions and recommendations. She attempted to contact each person referred to her by the parties. She attempted to, and on all of the evidence I find that she did, summarize faithfully the information these sources provided to her. [ 118 ] In response to Mr.

Block’s rebuttal report, Ms. Torres testified that while her report was indeed lengthy, she included no irrelevant information and arrived at no arbitrary conclusions. She testified that she clearly outlined the limits of her assessment. No alternate parenting plan was feasible given the conclusion of extreme parental alienation. She did however lay out a plan for supervised access, including counselling for the father.

She emphasized the importance in such reports of attempting to confirm impressions with multiple sources of information, including document reviews, psychological test outcomes, clinical interviews, and collateral sources – none of which, she testified, stand on their own but are only meaningful when weighed as a whole. The Block rebuttal report [ 119 ] Psychologist Leslie Block prepared a September 24, 2015 critique of the Torres report.

It was attached to a Form 25 expert statement signed by him September 25, 2015 but not filed, inexplicably, until October 26, 2015, days after an October 23, 2015 pre-trial conference when the report was ordered produced without further delay. [ 120 ] Mr. Block testified at trial. Unlike the case with Ms. Torres, Mr. Block’s qualifications were not agreed to.

Qualifications [ 121 ] Just how Mr. Block was to be qualified was something of a moving target. In the end however counsel for the father sought to qualify Mr. Block in the areas of forensic psychology including psychological testing, parenting and psychological assessments, parenting fitness and risk assessment, and “cultural identity and accommodation within parenting assessments”. [ 122 ] Mr. Block’s CV was exhibited at trial. Exhibited too were Mr.

Block’s typed-up notes summarizing the occasions on which he has appeared in court to give expert opinion evidence. [ 123 ] After considering these exhibits and hearing evidence regarding qualifications I agreed to hear Mr. Block’s evidence, with reasons to follow regarding his expertise. [ 124 ] Mr. Block’s CV, under the heading “Assessment”, sets out 15 areas of expertise.

Only one says anything related to parenting: “forensic evaluation of family functioning, termination of parenting rights, parenting adequacy …” His CV notes he has been qualified as an expert more than 160 times, some unspecified number of them having to do with “family & children, high conflict families”; nothing is mentioned specifically regarding custody or parenting. [ 125 ] Turning to his typed-up notes, at the outset they identify 123 court appearances.

Few are identified by date or citation, so verification is a challenge, but, as will be noted, not impossible. [ 126 ] A scan of the 123 entries of court appearances reveals that the great majority are criminal law in nature. Mr. Block notes for example the dangerous offender matter of R v Ominayak before Justice “Topilinski” [sic] in October, 2006 – apparently a reference to R v Ominayak , 2007 ABQB 442 at paras 202-204 , wherein Topolniski J criticized Mr. Block for taking on the role of an advocate, and preferred the evidence of a competing expert over his. [ 127 ] Mr.

Block also refers to appearing in the Chan case presided over by Justice “McIntyrel” [sic] – no doubt a reference to R v Chan , 2005 ABQB 615 , at paras 147-149 , wherein McIntyre J. found that Mr. Block had engaged in oath-helping, and accordingly questioned his evidence. [ 128 ] These are examples of cases in which judges of this court have expressed significant reservations regarding Mr. Block’s qualities as an expert opinion witness. I do not doubt that Mr. Block has been qualified many other times. Doubtless other courts have not had reason to find or express such reservations as appear above.

Nevertheless, given the unique role of experts in litigation, and especially in custody litigation, occasions such as these when an expert’s evidence is not accepted must play a role in informing my own consideration of the expert’s evidence in this case. I will touch on the recent decision of White Burgess Langille Inman v Abbott and Haliburton Co , 2015 SCC 23 , [2015] 2 S.C.R. 182, later in these reasons. [ 129 ] In conclusion regarding Mr. Block’s qualifications, I agree that he is qualified to provide expert opinion evidence regarding forensic psychology including the

interpretation and analysis of forensic assessments. He has been so-qualified numerous times, e.g., R v Small-Buffalo , 2009 ABQB 353 ; R v CHC , 2009 ABQB 125 R v Wilson , 2008 ABQB 588 ; R v McClenaghan , 2008 ABCA; R v Elliott , 2006 ABPC 372 . [ 130 ] On those relatively few occasions that he appears to have testified about families and parenting, it is impossible to tell just how Mr. Block was qualified or indeed if his evidence was accepted. As such, and to give him the benefit of the doubt, Mr.

Block’s qualifications to provide expert opinion evidence regarding parenting fitness and risk assessment in that context are but barely established on the evidence before me, including my consideration of his CV and typed-up notes, and his evidence at trial regarding qualifications. I will nevertheless agree that he is qualified to comment on these points. [ 131 ] I am not persuaded that Mr. Block is qualified to express expert opinion evidence regarding “cultural identity and accommodation within parenting assessments”. Rebuttal report standards [ 132 ] Before turning to the merits of Mr.

Block’s report, I will deal with an issue raised in the trial regarding the standards of an expert rebuttal report to a PN8 assessment. [ 133 ] The parties were unable to point to any Alberta cases on this issue. Nevertheless it appeared to be the experience of counsel, and of the court, that a rebuttal report is meant to critique a PN8 assessor’s methodology, but not to revisit directly its conclusions and recommendations. [ 134 ] Of course an effective critique may nullify in whole or in part those conclusions and recommendations. But it will not offer substitute conclusions and recommendations.

It is not a do-over of the PN8 report. There is no substantive dealing with the parents, other professionals or experts, or collateral sources. There is no conclusion or recommendation regarding the best interests of the child or children, either in terms of custody or of parenting. [ 135 ] Such rebuttal reports are critiques or reviews as distinct from “second opinions”, to adopt the method suggested by Gould et al in “Critiquing a Colleague’s Forensic Advisory Report” (Jonathan W. Gould et al, the Journal of Child Custody (Vol. 1(3) 2004, 37-64), produced by Ms. Torres as part of her response to Mr.

Block’s rebuttal report. [ 136 ] The Gould

article was referred to by Mr. Torres as some authority for standards to guide psychologists in the preparation of rebuttal reports. Amongst the guidance found the article: - A “second opinion” should only rarely be formulated on the basis of a file review. It should be the result of a second evaluation of “equal, greater, or different scope than the first evaluation, in which the second examiner obtains a sufficiently adequate set of data from

which to offer a recommendation about a parenting plan”. “…the professional offering the critique or review of the original custody evaluation should not allow anyone, including the court, toassume that the critique has the same breadth and scope as a custody evaluation and the [reviewer] should not opine concerningalternative parenting plans. That is, the reviewer should not offer an opinion about custodial placement.” (at page 40) - A critique or review, on the other hand, can comment on the weaknesses and strengths of the methods used in the first evaluation.

Itcan comment on the extent to which the conclusions and recommendations in the first evaluation appear to be supported by the datagathered. The review may comment on, and if applicable “provide …the court with the scientific basis of concern, if any, about theevaluator’s advisory report”.

It may comment on the evaluator’s “current methods, procedures, research, and psychological reasoning.”On the whole it “should offer a fair and objective examination of the foundation for the evaluation and its subsequentrecommendations.” - The reviewer may comment on the degree to which the evaluator has complied with the standards expected of an expert witness beforethe court; as framed by Gould et al, at page 41: Our public role as experts to the court places upon forensic practitioners a “special responsibility for fairness and accuracy”. [137] Summing up, at page 43 Gould et al identify what in their view are the elements of a critical opinion protocol: (1) a critique should be factually and ethically grounded; (2) it should offer clear, cogent and current knowledge of the relevant behavioral science literature; (3) it should contain a discussion of alternative, rival hypotheses; (4) it should be objective and bias-free; (5) the critique should offer a discussion of its own limitations as well as the limitations of the reviewed evaluation; and (6) its tone should be forceful, open and honest. [138] While this is not the occasion necessarily to endorse the Gould formulation as an end-all, be-all test in custody/parenting casesbefore these courts, still it is a useful tool – together with Mr.

Torres’ own commentary – in my assessment of the merits of Mr. Block’srebuttal report in this case. [139] Of course as experts both Mr. Block and Ms. Torres must abide by the general standards long-expected of expert witnesses.Many of those standards not surprisingly overlap the Gould formulation.

To cite but a handful of the more general authorities:Teichgraber v Gallant, 2003 ABQB 58 at paras 82-89; Weatherford Canada Partnership v Addie, 2009 ABQB 39 at paras 46-50;1159465 Alberta Ltd v Adwood Manufacturing Ltd, 2010 ABQB 133, affm’d 2011 ABCA 259; Frazer v Haukioja (2008), (ONSC), 58 CCLT (3d) 259 (Ont SCJ) at paras 137-141, affm’d 2010 ONCA 249. [140] In the trial decision in Frazer Moore J. commented as follows: 139 At trial the expert must be and appear to be independent of the party or counsel who retained the services of the expert and mustdemonstrate objectivity and impartiality in the analyses and opinions that she or he is allowed to give.

Because the opinions stated by anexpert are predicated upon expertise that the court does not possess, the court must be confident in relying upon the expert to provide athorough, balanced and technically sound analysis. Independence and impartiality; the court expects nothing more and it will acceptnothing less. 140 The court endeavors to adjudicate each matter coming before it fairly and free from bias.

To the extent that the court must receiveand rely upon the expert opinions of others and to the extent that those opinions are tainted, the administration of justice is imperiled. 141 In England and also in Canada, courts have identified and applied several factors relevant to the receipt of expert evidenceincluding: 1. Expert evidence presented to the Court should be, and should be seen to be, the independent product of the expert uninfluenced asto form or content by the exigencies of litigation.... 2.

An expert witness should provide independent assistance to the Court by way of objective unbiased opinion in relation to matterswithin his [or her] expertise ... An expert witness ... should never assume the role of an advocate. 3. An expert witness should state the facts or assumptions upon which his [or her] opinion is based. He [or she] should not omit toconsider material facts which could detract from his [or her] concluded opinion ... 4. An expert witness should make it clear when a particular question or issue falls outside his [or her] expertise. 5.

If an expert's opinion is not properly researched because he [or she] considers [there to be] ... insufficient data ... available, then thismust be stated with an indication that the opinion is no more than a provisional one ...

In cases where an expert witness who has prepareda report could not assert that the report contained the truth, the whole truth and nothing but the truth without some qualification, thatqualification should be stated in the report .... [141] A caveat: this formulation, drawing as it does in part from National Justice Compania Naviera SA v Prudential Assurance CoLtd, “The Ikarian Reefer”, [1993] 2 Lloyd’s Reports 68, approved [1995] 1 Lloyds Re. 455 (C.A.), in Alberta must be read alongsideLameman v Canada (Attorney General), 2006 ABCA 392 at paras 44-56, which holds that questions around the “interest” of an expert,

going then to that witness’s independence, do not outright exclude or disqualify the expert or the expert’s evidence, but go rather to weight. This statement must itself be read alongside White Burgess Langille Inman v Abbott and Haliburton Co , 2015 SCC 23 , [2015] 2 S.C.R. 182, wherein Cromwell J. stated at para 2: Expert witnesses have a special duty to the court to provide fair, objective and non-partisan assistance. A proposed expert witness who is unable or unwilling to comply with this duty is not qualified to give expert opinion evidence and should not be permitted to do so.

Less fundamental concerns about an expert’s independence and impartiality should be taken into account in the broader, overall weighing of the costs and benefits of receiving the evidence. [ 142 ] With these observations in mind, I turn to Mr. Block’s report and evidence. The merits of Mr. Block’s report and evidence [ 143 ] The starting point is Mr. Block’s four page report of September 24, 2015. Most of the first two pages of his report are general in nature. He then comments on Ms.

Torres’ report by observing for example that her final conclusions appeared arbitrary to him, and contain no alternative parenting plan; she fails to outline the limits of her assessment; she does not reveal the strengths and weaknesses of each parent. [ 144 ] I will say now that on all of the evidence I find nothing arbitrary about Ms. Torres’ conclusions. She clearly outlines the limits of her assessment. Mr. Block admitted as much in cross examination, only then to alter his critique to allege that Ms. Torres failed appropriately to apply the very limits which she had identified.

He said no such thing in his written report, and his ‘follow-up’ criticism at trial cannot be implied from what he wrote earlier. [ 145 ] Given Ms. Torres’ conclusion of severe, pathological alienation, it comes as no surprise that an alternative parenting plan was not included. That being said, Ms. Torres did lay out a path for the father, going forward. She clearly revealed the strengths and weaknesses of each parent. [ 146 ] Mr. Block criticized Ms. Torres’ presentation as awkward, disjointed and fragmented. He denied in cross examination that in saying so he was simply criticizing her “style”.

I do not accept that. If he was not criticizing her style – which Mr. Block stated would be an entirely irrelevant criticism – then I have little if any idea what else he intended by these remarks. [ 147 ] Mr. Block concluded that Ms. Torres was obviously advocating for the mother. He gives two examples, neither of which in my view support his frankly grave assertion that Ms. Torres has violated her duty of objectivity as an expert witness. [ 148 ] In his first example Mr. Block criticizes Ms.

Torres’ statement that the mother has “demonstrate[d] mental and emotional stability, ability to cope with her ongoing challenges, and balanced self-esteem as well as interpersonal skills”. [ 149 ] I find that this conclusion is well supported by Mr. Torres’ findings, not to mention the balance of the evidence at trial. There is nothing in this example offered by Mr. Block that demonstrates any advocacy on Ms. Torres’ part. [ 150 ] Mr. Block next goes on to criticize Ms. Torres for accepting the mother’s story that her parents had a good marriage, albeit one that many years later led to divorce. He criticizes Ms.

Torres’ assertion that the mother grew up in home that was “happy, peaceful, without dispute”. [ 151 ] Mr. Block wrote in his report that this statement was “clearly a questionable assertion”. [ 152 ] Why? Mr. Block did not say in his report, nor did he answer, persuasively, at trial. Yet he criticized Ms. Torres on this point for failing in her role “to discern fact from fantasy wherever possible and this is just not done.” [ 153 ] On the whole, I have no reason to doubt the mother’s history of a happy home life with her then-married parents. More to the point, I have no reason – Mr.

Block did not give me one, nor did one emerge on cross examination of the mother – to consider that any different home life of the mother was relevant at all to her ability now to parent the children. [ 154 ] These, then, are the two examples Mr. Block intended the court to rely on to support his allegation that Ms. Torres had violated her oath and professional obligations as an expert witness. [ 155 ] Later in his report Mr. Block says: I have amassed specific examples of how Mr.

Torres has violated her role as an objective appraiser and would be pleased to outline these concerns if required. [ 156 ] This provocative comment is at the bottom of the fourth page of Mr. Block’s report. (The fifth page is just his signature.) Then there is nothing. [ 157 ] The court, the parties, Ms. Torres – are all interested Mr. Block’s ‘specific examples’, assuming they exist. They should have been in his report, not to be revealed only at trial. [ 158 ] An explanation might have been provided for why they are not in the report. No explanation was offered. [ 159 ] It could not have been beyond Mr.

Block’s reach to provide his “specific examples” in writing. As he said, they had already been “amassed”. And even if it was extra work to do so, it was Mr. Block’s duty as a fair, objective and non-partisan expert to provide them. It was Mr. Block after all who impugned nothing less than Ms. Torres’ integrity. [ 160 ] At trial I allowed Mr. Block no opportunity to expand on his “specific examples” when he had failed to do so in his written

report. Nor was he asked, nor did he volunteer, why he had failed to so expand in his written report. If Mr.

Block did have anything to add – which I do not concede – then to allow him to do so in the circumstances would have been nothing less than ‘trial by ambush’. [ 161 ] Whether it can be said that trial by ambush has quite yet gone the way of trial by ordeal, still in the circumstances of this case nothing going even to the ‘best interests of the children’ would justify such a compromise of adjudicative fairness. [ 162 ] Relevant here as well is that the original dates set for this custody/parenting trial were adjourned, at the father’s request, so that a rebuttal expert could become involved.

I infer that expert was Mr. Block. (I pause to note that Mr. Block said at trial that he had been retained initially by the father’s former counsel, then after a period of apparent inactivity was contacted later by the father’s counsel at trial, Ms. Moore.) [ 163 ] In due course Mr. Block’s report of September 24, 2015 emerged. I say “in due course” advisedly. The impugned order of the case management judge of September 22, 2015 directed that the father’s expert report be provided to the mother’s counsel by October 5, 2015. That did not happen.

By the time the parties appeared before me on October 23, 2015 the father’s expert report had not been provided. At that time I ordered that it be provided forthwith. A report was filed days later, on October 26, 2015. It attached Mr. Block’s month-old September 24, 2015 report. The report was under cover of a court form, signed by Mr. Block, and dated September 25, 2015. No explanation has been provided for the month-long delay in filing. [ 164 ] To be clear, on the evidence I do not attribute these delays to Mr. Block.

Yet they do make relevant the issue of the delay in the production, if not the preparation, of his written opinion. [ 165 ] So it is worth noting that I found Mr. Block to be defensive, in cross examination, when he was asked what opportunity he had to prepare his September 24, 2015 report. He did ultimately acknowledge that he faced time constraints. He said he had no memory of when he was contacted by the father’s trial counsel – who again began acting for the father as recently as early 2015. Still, Mr.

Block testified, unconvincingly in my view, that he simply could not remember “when [counsel] asked me to put it all together”. [ 166 ] Returning to his report, Mr. Block next criticized Ms. Torres for relying on what he concluded was biased psychological test outcomes – biased, he wrote, owing to the likelihood that cultural factors stemming from the father’s Nigerian origins impacted the way the father approached and understood the testing. [ 167 ] Mr. Block agreed that it appeared the father was well acculturated given his UK and Canadian education and life experience.

He agreed the father had the intellectual capacity to respond to the test instruments. Yet he maintained that Nigerian cultural factors should have been considered in the father’s test outcomes. Mr. Block did not identify what those cultural factors were specifically, or how they would influence test outcomes. But that they were not even considered by Ms. Torres, Mr. Block testified, led him to conclude that “We don’t know” their impact. Mr.

Block also testified that “off the top of my head” he could identify no studies on the influence of Nigerian cultural factors on the psychological test instruments at issue. [ 168 ] Two shortcomings emerge from this evidence. The first is, that having asserted unequivocally the likely impact of cultural factors on testing, it is troubling that Mr. Block could identify no science, “off the top of [his] head”, to support his assertions. [ 169 ] Second, Mr. Block’s testimony that “we don’t know” the impact of cultural factors contradicts the unequivocal statement he made in his written report, that Ms.

Torres’ testing was biased: …as it fails to take into account the cultural factors. [The father] is Nigerian and it is likely that cultural factors impact the way he approached and understands the testing.” [emphasis added] [ 170 ] Mr. Block thus moves from “it is likely” in his written report to “we don’t know” in his testimony before the court. [ 171 ] Again returning to his report, I find that Mr. Block was caught short on a criticism that Ms.

Torres had created bias and distortion, and had thus betrayed her neutrality, by failing to note a comment from a test protocol that the father was “typically outgoing, and sociable …spontaneous and expressive”. As he acknowledged in cross-examination, that very observation is quoted by Ms. Torres at page 26 of her report, albeit in a guarded way. [ 172 ] I have already noted Mr. Block’s mistake regarding Ms. Torres’ failure to outline limitations. And at this point in his evidence at trial, referring to what Ms. Torres stated in her report about limitations, Mr.

Block stated, disturbingly to me, that “This is something that had been missing in her previous reports…” Earlier in his evidence, he commented similarly, on her reference to the accounts of children, that “I’ve been following Torres for many years and I’ve been asked to critique her work in the past …” [ 173 ] I say this is disturbing to me because, while it was not the subject of any further examination or cross examination, and while none of it appeared in his written report, still the comments were made obviously to support Mr. Block’s opinion, and to denigrate Ms. Torres’ opinion.

The comments were made without any notice to Ms. Torres, and in a manner that made it impossible for her or for anyone reasonably to test them. These comments were, at the very least, irrelevant. [ 174 ] There is no acknowledgment in Mr. Block’s report that Ms. Torres’ assessment had really any worth at all. Yet at trial, but only in cross examination, he did allow that Ms. Torres had done an excellent job of marshalling evidence, that she had left few if any stones unturned. [ 175 ] Her chief failing, Mr.

Block stated, was in failing to analyze the vast record of evidence before her; she failed to “filter” the “reams” of evidence she collected; she failed to integrate the data; she adopted subjective accounts without proper qualification or weight; her approach betrayed a misunderstanding of her role in performing the bilateral assessment; she failed to weigh the credibility of collateral sources; she relied too much on the outcome of psychological testing; she failed to identify each parents’ strengths and weaknesses in any objective way; she instead relied on subjective reports and test outcomes to “idealize” the mother and to “demonize” the father; finally, the update report of December 5, 2015 was, in Mr.

Block’s view, “scientific nonsense”.

[ 176 ] I reject these criticisms in their entirety. I find that Ms. Torres presented and analyzed the evidence appropriately, coming to conclusions and recommendations that assisted me in deciding the ultimate issue of what custodial and parenting outcomes are in the best interests of the children. [ 177 ] The very length of her original report, 109 pages, drew much criticism. It was “tedious” Mr. Block said.

It was an “arduous process” to get through the report, the reader is “fatigued” he said, by the time one reached the end of her report. [ 178 ] Having read the report now three times in preparation for trial and these reasons, I find that Ms. Torres’ lengthy report was neither particularly fatiguing, nor tedious, nor arduous to get through. [ 179 ] Mr. Block failed to identify any limitations in his own written report, including not only time constraints but also a failure to have reviewed all source material collected and reviewed by Ms.

Torres, and made no follow up with her when he said he realized for example that he did not receive psychological test data for the mother. Conclusion regarding Mr. Block’s rebuttal report [ 180 ] On the whole I am unable to attach any weight to Mr. Block’s expert evidence. On the White Burgess approach I might have been persuaded to reject his very qualifications on the basis that he was a witness who was not fair, objective, or non-partisan. I stop just short of that conclusion.

I do so if only because the White Burgess case was not argued before me. [ 181 ] It is enough to say that for the reasons given I reject all of Mr. Block’s criticisms of the Torres report. I find Ms. Torres’ PN8 report, her update, and her evidence at trial, to be unrebutted on any material point. Rebuttal report standards revisited [ 182 ] To revisit the expert standards mentioned above, including those recommended by Gould et al, I regret to find that in important respects Mr. Block’s critique lacked factual and ethical grounding.

This was no more evident than in his frankly lurid but inexplicably unsupported attack on Ms. Torres’ own bona fides as a properly neutral and objective expert. [ 183 ] Indeed, Mr. Block’s own bona fides were put in question, including when he failed to spell out in his rep

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