Whidden v Ellwood, 2016 ONSC 6938 (CanLII)
Date: 2016-11-14
Docket: F-3136/14
Citation: Whidden v Ellwood, 2016 ONSC 6938 (CanLII)
http://canlii.ca/t/gvlt0
Disclaimer and Warning: As it has happened in the past if a current member of this forum is one of the parties involved in this matter simply do not respond to this message and identify yourself. It has happened in the past with case law I have posted and it is better to not be the idiot who responds and exposes themselves. Don't blame me because you are a high conflict parent and are part of a public record now!
This case is more than the simple question posed in para. 1 by the Honourable Mr. Pazaratz:
This case law is much more than that. It is significantly more than just that simple question. Justice Pazaratz’s narrative in this case law delves much deeper into the issues the court system faces when two high conflict parents use the legal system inappropriately. In fact, I am of the opinion that he got para. 1 and missed an opportunity to bring up another question which should have been par. 2.
I will first address para. 1.
Justice Pazaratz was faced with a challenging problem beyond just waring parents. He was faced with two OCL reports. One that recommended joint custody and equal access that was withdrawn by the OCL and a new one that recommended sole custody to one parent and limited access to the other.
Readers need to look beyond the narrative of the story of these two parents and to the following comments regarding the OCL. Justice Pazaratz offers a sobering message to the OCL in para. 70 79,
It is clear that there are some challenges with how the OCL in many matters handle cases and Justice Pazaratz is identifying a systemic problem. In para. 72 he reference the Honourable Justice Harper’s case where he makes similar observations:
Both observations are very important for the OCL to consider strongly. Their processes are not transparent and it can have a significant effect on a judge. I can only hope that the OCL updates their policies and governance to heed these two well respected justices now.
Justice Pazaratz offers some advice to the OCL:
Again, this is not the true value to this case law from Justice Pazaratz. What I am about to explore is significantly more important to the readers of this forum who are often parents facing high conflict situations.
I truly appreciate Justice Pazaratz’s “King Solomon” approach to sparing parents. Rather than punishing them he puts them in situations where they have to expose themselves to the reality of parenting. In this case law he does just that and with incredible grace.
This begins at para. 169:
As I have stated a number of times to posters that come to this forum stating that the other parent has mental health issues and needs to be tested that this testing is rarely ordered. Everyone expects it to happen and it never happens. The problem is often not truly a mental health related one but, a conflict related one! That mental health and highly conflicted parents are not one in the same! That we cannot let these kinds of people abuse our public system!
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Date: 2016-11-14
Docket: F-3136/14
Citation: Whidden v Ellwood, 2016 ONSC 6938 (CanLII)
http://canlii.ca/t/gvlt0
Disclaimer and Warning: As it has happened in the past if a current member of this forum is one of the parties involved in this matter simply do not respond to this message and identify yourself. It has happened in the past with case law I have posted and it is better to not be the idiot who responds and exposes themselves. Don't blame me because you are a high conflict parent and are part of a public record now!
This case is more than the simple question posed in para. 1 by the Honourable Mr. Pazaratz:
1. So who really writes those section 112 reports?
What is wrong with our legal system?
I will first address para. 1.
Justice Pazaratz was faced with a challenging problem beyond just waring parents. He was faced with two OCL reports. One that recommended joint custody and equal access that was withdrawn by the OCL and a new one that recommended sole custody to one parent and limited access to the other.
Readers need to look beyond the narrative of the story of these two parents and to the following comments regarding the OCL. Justice Pazaratz offers a sobering message to the OCL in para. 70 79,
70. But her candid description of her dealings with the OCL – if accurate – raises broader issues.
a. There’s nothing wrong with an OCL investigator reviewing a case with a supervisor. Many decision makers – including judges – sometimes discuss tough fact situations with colleagues, as they struggle to reach their own conclusions.
b. But there’s a world of difference between exchanging ideas, and delegating (or usurping) decision making authority.
c. Johnston’s OCL supervisor had every right to review her work. It may even have been appropriate to make suggestions, or identify areas requiring further consideration.
d. But a supervisor instructing or pressuring a clinical investigator to adopt or exclude certain recommendations -- let alone, a supervisor writing portions of a report -- raises fundamental issues about methodology, transparency and the integrity of the process.
a. There’s nothing wrong with an OCL investigator reviewing a case with a supervisor. Many decision makers – including judges – sometimes discuss tough fact situations with colleagues, as they struggle to reach their own conclusions.
b. But there’s a world of difference between exchanging ideas, and delegating (or usurping) decision making authority.
c. Johnston’s OCL supervisor had every right to review her work. It may even have been appropriate to make suggestions, or identify areas requiring further consideration.
d. But a supervisor instructing or pressuring a clinical investigator to adopt or exclude certain recommendations -- let alone, a supervisor writing portions of a report -- raises fundamental issues about methodology, transparency and the integrity of the process.
a. In any assessment of parenting skills or a child’s best interests, a specific assessor – usually an individual – is tasked with the responsibility and authority to conduct an investigation and prepare a report.
b. The person who signs the report should be careful to ensure that they are responsible for all of its contents. That’s what the reader is entitled to assume.
c. Where other persons – such as assistants -- are involved in the process, their role and the extent of their participation in the formulation of conclusions and recommendations should be clearly identified in the report. This is particularly important where the people conducting the investigation have differing levels of expertise or authority.
d. Where conclusions and recommendations are generated by multiple authors, that collaborative process hampers scrutiny and testing at trial. Where a recommendation comes from a team, it makes it difficult for counsel to evaluate how the opinion was generated; how it evolved; how it was expressed; the impact of the discussions that took place among team members; and why it ended up to be in the report in the manner that it was.
b. The person who signs the report should be careful to ensure that they are responsible for all of its contents. That’s what the reader is entitled to assume.
c. Where other persons – such as assistants -- are involved in the process, their role and the extent of their participation in the formulation of conclusions and recommendations should be clearly identified in the report. This is particularly important where the people conducting the investigation have differing levels of expertise or authority.
d. Where conclusions and recommendations are generated by multiple authors, that collaborative process hampers scrutiny and testing at trial. Where a recommendation comes from a team, it makes it difficult for counsel to evaluate how the opinion was generated; how it evolved; how it was expressed; the impact of the discussions that took place among team members; and why it ended up to be in the report in the manner that it was.
Justice Pazaratz offers some advice to the OCL:
78. To maintain that standard of excellence – and public confidence -- the OCL would be well advised to provide reassurance in two very distinct ways:
a. Ensure that administrative supervision of clinical investigators does not cross the line into editorial control or behind the scenes manipulation of reports.
b. Demonstrate the courage to intervene – and reassign a file if necessary -- as soon as investigative deficiencies become apparent. Bad investigations cannot and should not be “re-written” by anonymous supervisors. And dubious reports shouldn’t be released in the hope that maybe no one will file a Dispute.
a. Ensure that administrative supervision of clinical investigators does not cross the line into editorial control or behind the scenes manipulation of reports.
b. Demonstrate the courage to intervene – and reassign a file if necessary -- as soon as investigative deficiencies become apparent. Bad investigations cannot and should not be “re-written” by anonymous supervisors. And dubious reports shouldn’t be released in the hope that maybe no one will file a Dispute.
I truly appreciate Justice Pazaratz’s “King Solomon” approach to sparing parents. Rather than punishing them he puts them in situations where they have to expose themselves to the reality of parenting. In this case law he does just that and with incredible grace.
This begins at para. 169:
169. As with most separations, these parties started out with a small but manageable list of legitimate complaints and concerns.
a. They could have worked together, followed some professional recommendations, obeyed some court orders, and tried to make this as painless as possible for their daughter.
b. But instead they took a scorched earth approach.
c. They became consumed not just with winning, but with making sure the other party lost.
d. That’s why more than two years after separation; after a five day temporary hearing; after many more motions; and after a 10 day trial – they were each still asking that I force the other party to take a psychiatric exam.
a. They could have worked together, followed some professional recommendations, obeyed some court orders, and tried to make this as painless as possible for their daughter.
b. But instead they took a scorched earth approach.
c. They became consumed not just with winning, but with making sure the other party lost.
d. That’s why more than two years after separation; after a five day temporary hearing; after many more motions; and after a 10 day trial – they were each still asking that I force the other party to take a psychiatric exam.
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