BJ v. SD, 2022 NSSC 116

SUPREME COURT OF Nova Scotia FAMILY DIVISION Citation: BJ v. SD , 2022 NSSC 116 Date: 2022-04-27 Docket: SFH No. 1201-067528 Registry: Halifax Between: B.J. Applicant v. S.D. Respondent And Between: Docket: SFHPSA No. 124504 Registry: Halifax B.D. and T.D. Applicants v. B.J. and S.D. Respondents Endorsement Judge: The Honourable Justice Theresa M. Forgeron Heard: Oral Decision: April 22, 2022, in Halifax, Nova Scotia April 27, 2022 Written Release: April 28, 2022 Counsel: William Leahey, counsel for the petitioner, B.J. Patrick Eagan, counsel for S.D., T.D., and B.D.

Restriction on Publication: Restriction on Publication Pursuant to subsection 94(1) of the Children and Family Services Act , S.N.S. 1990, c. 5 , there is a ban on disclosing information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding pursuant to this Act, or a parent or guardian, a foster parent or a relative of the child.

By the Court: Introduction [ 1 ] This decision concerns the admissibility of a proposed expert report which was filed on the eve of the contested parenting hearing scheduled for next week. The proposed report concerns nine-year old S. S is the daughter of SD (the mother) and BJ (the father) and the granddaughter of BD and TD (the grandparents). The father and the grandparents are each seeking primary care and decision- making on behalf of the child. [ 2 ] The grandparents seek to admit the proposed expert report; the father objects to its admission. Issue [ 3 ] Should the proposed expert report of Dr.

Silverman be admitted despite its late filing? Analysis [ 4 ] Should the proposed expert report of Dr. Silverman be admitted despite its late filing? Position of the Grandparents and Mother [ 5 ] The grandparents and mother ask that Dr. Silverman’s report be admitted for reasons which include: • Section 18 (6)(1)(

f) of the Parenting and Support A ct states that a child’s views and preferences must be considered in any contested parenting hearing. • The court has the discretionary authority to admit Dr. Silverman’s report under Rule 55(4). • Dr. Silverman's report states, on its cover, that the report is a Voice of the Child Report. Dr. Silverman expressly notes that his opinion does not include any statement about parenting abilities, style, or capacity, but rather his report is an evaluation solely based on the child's cognitive and emotional functioning. • There is nothing irregular about Dr.

Silverman administering psychological tests to the child to assist with his evaluation and analysis of her views. • Dr. Silverman’s reasonable and neutral diagnosis should be welcomed by the court and the parties because it shines light on how the mother’s dysfunction and the father’s absences negatively impacted the child. The report is directly related to recommendations surrounding the child’s best interests. • Counsel for the father has ample opportunity to prepare his cross examination of Dr.

Silverman. • The report is of tremendous value to the court because it is professional and data oriented and in keeping with academic literature, such as “The Voice of the Child in Family Law: Exploring Strategies, Challenges, and Best Practices for Canada,” by Michael Saini, March 31, 2019. [ 6 ] In addition, the grandparents and mother state that while Dr.

Silverman opined that the child should remain in Nova Scotia with her grandparents, such an observation is secondary to the primary value of his report which is to test and assess whether the child possesses any psychological limitations which might impact the expression of her voice. Further, if the court is concerned that Dr. Silverman's opinion encroaches on the ultimate issue the court must decide, then the court can simply ignore the opinion and accept the report for what it is – a Voice of the Child Report. Position of the Father [ 7 ] The father objects to the admission of Dr.

Silverman's report for reasons which include the following: • The report is filed too late. It should have been filed no later that the day before a conference at which a judge appoints a date for the hearing of the proceeding: Rule 55 (04). The Silverman report however, is, in effect, being tendered mid-trial because the evidence from the placement hearing forms part of the evidence for the contested private family law dispute which begins next week. • The report is packaged as a Voice of the Child Report.

The mother and grandparents previously filed a motion seeking permission to have a Voice of the Child Report ordered. That motion was resolved by consent when all parties confirmed that it was the child’s wish to live in Nova Scotia with her grandparents. It was inappropriate for the grandparents to proceed unilaterally with the Silverman report without at least consulting the father. • Dr. Silverman’s report differs tremendously from the standard Voice of the Child Report found in family law proceedings in Nova Scotia. Dr.

Silverman’s report is clearly not a Voice of the Child Report, but rather a report on placement, and without the benefit of ever speaking with the father. The purpose and intent of the report is to try to influence the court’s decision on placement. • The report is so deficient that it would never be accepted even if it was filed on time. The report is a biased, thinly disguised attempt to sway the court. The suggestion that the father should now be given the opportunity to try to persuade Dr Silverman to change his opinion is untenable and completely unreasonable.

Law [8] Rule 55.04 states: 55.04 Despite Rules 55.03(1), to (3), in a family proceeding reports must be filed at either of the following times, unless a judge directsotherwise: (

a) an expert’s report, the day before a conference at which a judge appoints the date for the hearing of the proceeding; (

b) a rebuttal expert’s report, no more than thirty days after the day of the conference. [9] The objects of the Rules and treatment for a failure to comply are stated in Rules 1.01 and 2. [10] The leading case on the admission of late-filed expert reports is Nichols v. McGillis, 2019 NSSC 85. In that decision, JusticeBrothers held that a defaulting party must prove exceptional circumstances before a late-filed expert report can be admitted. Exceptionalcircumstances are determined based on an assessment of three factors - probative value, interest of justice, and prejudicial effect.

For afurther application of these principles, Justice Chipman’s decision of Stroh v. Blakeney, 2020 NSSC 327 should be reviewed. Decision [11] The proposed expert report of Dr. Silverman is indeed filed late. The contested parenting hearing begins next week. The reportis dated April 2, 2022. The report was filed with the court on April 21, 2022, although it appears to have been sent to the father’s counselon April 11, 2022. [12] I must now determine whether the grandparents and mother proved the existence of exceptional circumstances. I find that theydid not upon examining the three relevant factors. First, Dr.

Silverman’s report is of limited probative value. I make this finding for thefollowing reasons: • The report is stated to be a Voice of the Child Report. I do not, however, require Dr. Silverman’s report to know and appreciate thechild’s voice and wishes. Indeed, all parties already admitted that the child wants to live in Nova Scotia with either her grandparents ormother. All parties admitted that the child does not want to live with her father. These admissions were placed on the record during the February 4, 2022 motion hearing.

The February 4th motion hearing was scheduled to determine the grandparent’s motion to obtain anorder for a Voice of the Child Report. The motion resolved by consent after all parties confirmed the child’s wishes. I therefore do notneed Dr. Silverman’s report to determine the child’s wishes. • Dr. Silverman’s report purportedly confirms the child’s current emotional functioning by evaluating her cognitive abilities, to helpdetermine her communicative ability, memory structures, and speed of cognitive processing. Dr.

Silverman purportedly undertakes thisevaluation to inform his opinion on the child’s ability to express her wishes. This type of expert evidence, however, is not required.There is nothing in the evidence already heard nor in the pleadings to suggest that the father is challenging the child’s ability to expressher wishes because her emotional functioning, cognitive abilities, communicative abilities, memory structures, or speed of cognitiveprocessing are, individually or collectively, compromised. • The report contains Dr.

Silverman’s opinion that the child “would be better suited to stay where she is currently, residing with hergrandparents in Nova Scotia.” Further, Dr. Silverman makes recommendations about what parenting time should be provided to eachbiological parent. He does so without ever meeting, interviewing, or even speaking with the father. He does so without conducting anytesting on the father, mother, or grandparents. His opinion has no value in such circumstances. [13] Second, it is not in the interest of justice nor in the child’s best interests to admit the report.

The report was obtainedunilaterally and without contact with the father. Dr. Silverman did not even observe interactions between the child and her father. Thereis little value in Dr. Silverman’s opinion about the preferable placement derived in such a manner. Further, the report of Dr. Silvermandoes not meet the requirements stated in Farmakoulas v. McInnis, (NSSC) and as reviewed in Jarvis v. Landry, 2011NSSC 116. [14] Third, significant prejudice would flow from admitting the late-filed report. The private parenting dispute has been before thecourt for a significant time.

Indeed, evidence has already been received on the parenting issues given the parties’ consent to admit allevidence from the CFSA placement hearing recently held. It is too late to admit the report. [15] In

summary, the mother and grandparents did not prove exceptional circumstances. The late-filed report will not be admittedwhere the report has little probative value; where its admission is neither in the interest of justice nor in the child’s best interests; andwhere significant prejudice will flow from its admission. [16] The child’s life must be settled. A parenting plan must be determined in the child’s best interests by applying the evidence tothe law. I already received a significant body of evidence and will hear the balance at the contested hearing scheduled to begin on May 2,2022.

Upon the conclusion of the hearing, I will be in a position to properly assess relocation and best interests factors based on theevidence of the parties, the professionals, and all other witnesses who testified and who will testify. The court is tasked with determiningwhat is in the child’s best interests. Dr. Silverman’s opinion is not helpful to the decision which I must make. Forgeron, J.