IN THE SUPREME COURT OF NOVA SCOTIA
Citation: D. v. R., 2004 NSSF 105
Date: 20041125
Docket: SFHMCA-30642
Registry: Halifax
Between:
J.D.
Applicant
v.
J.R.
Respondent
Revised Decision: The text of the original decision has been revised to remove personal identifying information of the parties on May 15, 2008.
Judge: The Honourable Justice Kevin Coady
Heard: September 21, 2004, in Halifax, Nova Scotia
Written Decision: November 25, 2004
Counsel: Tanya R. Jones, for J.D. the applicant
Perry F. Borden, for J.R. the respondent
By the Court:
[1]The question before this court is whether the court should order an assessment pursuant to Section 35 of The Judicature Act. J.D. is requesting an assessment. It is opposed by J.R..
[2]This request arose in the context of J.R.’s application to vary the interim consent order dated 13th March, 1997 so as to terminate J.D.’s access to D., their 11 year old son.
[3]J.D. is challenging J.R.’s application. Prior to November, 2003 he was exercising regular and ongoing access to D. pursuant to the interim order of 13th March, 1997. He has not been exercising access since that time.
[4]Access was interrupted in November, 2003 when J.R. learned that J.D. was accused of sexually assaulting his step-daughter. He was placed on an undertaking that did not allow him to have contact with children. He has since been convicted and is awaiting sentence. In court, J.R. stated that she was advised by Child Protection to deny J.D.’s access to D. and acted on those directions.
[5]J.D. has two (2) other children as a result of another relationship; R., 4 years, and M., 3 years. J.D. has been successful in effecting a change in the criminal undertaking to allow him supervised access to R. and M.. J.D. seeks the same arrangement respecting D..
[6]A further factor is that J.R. chose to tell D. about his father’s criminal acts and now D. resists any contact with J.D..
[7]Section 35 of The Judicature Act calls for the exercise of discretion in ordering an assessment. Obviously, the exercise of that discretion must be consistent with the best interests of the child. That principle trumps the interests, costs or inconvenience of a parent.
[8]Justice Edwards dealt with this issue in Farmakoulas v. McInnis (1996) 23 R.F.L. 4th 325. This case involved a 3 year old child. The request for an assessment was denied. Several principles respecting assessments emerged from Justice Edwards decision:
- Unless parties consent, assessments should not be ordered as a matter of course.
- The onus is on the requesting party to show that a professional opinion was required.
- Assessments should be ordered where there is a specific need for the type of information generated by such studies.
- Assessments should be ordered where it is likely to provide information not available to a judge because it fell within the special knowledge of the expert.
[9]In McInnis Justice Edwards found that the child was “well adjusted” and that the mother may be using the assessment as a “fishing expedition”.
[10]I have reviewed the case of Linton v. Clarke (1994) 10 R.F.L. (4th) 92 where it was determined that assessments should be restricted to cases where there is a “Clinical Issue”.
[11]I have also reviewed Glance v. Glance (2000) 10 R.F.L. (5th) 276 which states that the party seeking an assessment must establish that the assessment is likely to provide evidence concerning the welfare of the child that would not otherwise be discoverable. The court stated that assessments should be limited to cases in which there are clinical issues to be determined.
[12]I have read Saffin v. Saffin (1991) 35 R.F.L. (3d) 250, a case in which an assessment request was refused. That court stated that “while assessments play an important role in many cases ... a court should be satisfied that a need for the information generated by an assessment exists”. The court expressed a caution not to “pass the buck” for the decision making.
[13]The evidence before me does not disclose D. to be a child in crisis, either from a health or behavioural perspective. His aversion to visiting J.D. is routed in J.D.’s proven behaviour with his step-daughter. That is not very surprising and the reasons are not complicated. In all other respects D. is doing well in his present home. I do not see a clinical issue to be addressed. An assessment would not provide any otherwise undiscoverable information than could be determined at trial.
[14]Accordingly, I find that J.D. has not met the onus required to order an assessment and as such I will not order an assessment.
J.