Law Times

Page 4 NEWS June 24, 2013 Law Times • Are parental assessors overstepping their role? Ontario bench taking note of New Brunswick decision about usurping judge BY JuDY VAN RHIJN For Law Times T he boundaries of a parental assessment in custody and access matters are under scrutiny following a decision that found an assessor to have usurped the role of the judge through findings on credibility and recommendations on the ultimate issue of custody that appeared to decide the issues that were before the court. The family law bar in Ontario is taking notice of the case of L. (J.D.) v. L. (R.J.J.) from the New Brunswick Court of Queen's Bench in late 2012 in which Justice John Walsh took the step of striking out the recommendations of the parental assessor. The matter was a high-conflict case addressing the custody of two small children that presented a significant challenge in the assessment of the credibility of the parties. In most areas of the evidence, they were completely at odds in recounting the history of their interactions with each other and the children. The parental assessment directed that it was in the best interests of the children to move them into the custody of the father despite the eldest child's extreme separation anxiety. Kenneth Younie of MacDonald & Partners LLP has studied the case and found it interesting that the trial judge admitted the fact section of the report while striking out the part setting out the expert's recommendations. "There have certainly been decisions in Ontario where the recommendations haven't been followed or entire reports have not been allowed but not to allow the recommendations is unusual," says Younie. "The judge could have allowed them and assessed them as part of the decision. He could have discounted the recommendations entirely, but this was the right decision for this case." Younie explains that in family law cases involving custody and access claims, it's common for the parties to agree to an assessment by a qualified expert. The expert will normally conduct an investigation and then write a report setting out the factual background and the recommendations as to the custody and access arrangements that would be in the child's best interests. "This case highlights the proper role of both a custody assessor and a judge in determining custody and access issues at trial," says Younie. The decision says the court can't delegate its own responsibility as the ultimate arbiter to expert. "Although the authors had access to extensive information, they did explanation of the expert's role is not have the detail of evidence that key. "When a client comes before is before this court, nor was the inthe court and their lawyer says, formation relied upon tested un'You need an expert,' the client der the fire of the courtroom, as it needs to understand that the asseswas before me," wrote Walsh. sor owes no duty to the client. The He added: "In other words, this assessor owes a duty to the court as court is in an even better position an expert to examine the evidence to make its own assessment of the and explain it to the judge and evidence and to draw the necesmake recommendations. But at the sary inferences. . . . Dressing the end, the expert does not make the exercise up in scientific terminoldecision. The judge can accept, deogy doesn't make it better or more cline, challenge, refute or disregard accurate or any easier." the recommendations. It's not the Younie thinks judges defer to assessor who wrongs or rights the the parental assessor far too often. party. Whatever the expertise is, "It creates an environment where the role is to tell the judge what the once the parental assessor is injudge does not know." volved, it becomes a forum to reBenmor notes it's never an exsolve the dispute. They are experts pert's role to make findings regardappointed by the court but they 'This case highlights the proper role of both a cusdon't have a full understanding of tody assessor and a judge in determining custody and ing credibility unless the person is an expert in profiling. "In family the law, the rules of evidence or access issues at trial,' says Kenneth Younie. law, an expert's advice is usually in due process. That's why the role of the judge is very important. They understand the rules of psychiatry, psychology, and mental health. It's nothing to evidence and the amount of weight to be given to what do with usurping the judge's role." The language of the Ontario legislation, namely s. 30 they're told." The case has attracted some notice from the bench in of the Children's Law Reform Act, refers to the role in Ontario, according to Younie. He'll cite the case, espe- clear language, but in Benmor's experience, clients don't cially if there are questions about due process, but sug- really "get it." "That's partly the fault of the lawyer and partly the gests the court can provide more direction to parental assessors at the beginning. In the New Brunswick case, fault of judges who don't properly explain what the role the judge who ordered the report gave no specific direc- of the expert is. You have to remember that nearly half of tions on evidence or procedures. Walsh, who recited the the people are unrepresented. There is more responsibilfundamental tenet that "justice must not only be done, ity on judges, especially where there are no lawyers." Benmor believes most complaints against assessors it must be seen to be done," made the point that it must appear to the interested observer, including the litigants, are frivolous in nature due to a party's dissatisfaction with that a decision was already in place before the case even the outcome. "If the judge says they accept the assessment and adopts the recommendations and the client doesn't reached the courtroom door. "In some cases, it might be appropriate for the judge to like the outcome, it is easier to sue or complain about the say that he or she is not interested in recommendations, expert. People rarely get anywhere complaining about but for the most part we'll continue to see parental asses- the judge. The most they can do is appeal." Younie concedes it's a challenge for judges to make an sors make recommendations," says Younie. "In one way, it is their role to say what's in the child's order  look like their own decision when it  agrees with the recommendations. "The best way is to really flesh out best interests." More direction from the judge would also help edu- the decision. They can rely on the facts in the assessor's cate the parties. Younie speculates that there may be report and be somewhat critical of the assessor if there fewer complaints against assessors if it's clear that judges is something to criticize. They need to make it clear that are making their own decision. Steve Benmor of Ben- they ultimately ended up with a congruent decision even LT mor Family Law Group in Toronto states that a better though there are questions about the report." Man's appeal of vexatious litigant finding dismissed BY GLENN KAUTH Law Times T he Ontario Court of Appeal has awarded substantial indemnity costs in ruling against a man who challenged a judge's finding that he was a vexatious litigant in relation to lawsuits he has launched against several lawyers and law firms over the years. "In our view, the respondents on appeal are entitled to substantial indemnity costs," wrote Justice John Laskin in last Monday's ruling in Teplitsky Colson LLP v. Malamas that ordered appellant William Malamas to pay $63,861 in costs. "Mr. Malamas has persisted in his groundless allegations of fraud, breach of fiduciary duty, and other nefarious conduct by these parties. The nature of his allegations justifies substantial indemnity costs." In an article last week, Law Times reported on the long-standing litigation launched by Malamas over a dispute related to a Danforth Avenue property in Toronto he was the landlord of. The property had the National Bank of Greece as its tenant. In his developer days, Malamas got into a dispute with the occupant bank and sued it for rent arrears and damages for breach of the lease. In the coming years, he sued virtually all of the lawyers who represented him in that litigation and other cases he came to be involved in. According year in Teplitsky Colson LLP v. William Malamas. The June 2012 court decision that declared Malamas a vexatious litigant notes he sued a total of 16 lawyers over a span of six years. That number doesn't include the lawyers who were once the owners of a building adjacent to his Danforth Avenue property. Earlier this month, Malamas went They also agreed that a single omnibus application would be brought on behalf of all the applicants. The application judge recognized that this was a sensible course of action. In his procedural order No. 7, he confirmed that the application was brought with his prior approval. to court documents, Malamas argued the lawyers "developed an attitude of increasing malice" toward him during their representation of him. The law firms named in various lawsuits over the years, some of which no longer exist, include McCarthy Tétrault LLP, Toome Laar & Bell, Raphael Professional Corp., Goodman and Carr LLP, Gardiner Roberts LLP, and Hodder Solicitors, according to a ruling last to the appeal court to challenge the vexatious litigant finding. Among other things, he argued that William O'Hara, counsel for Teplitsky Colson, didn't have instructions from all 26 parties, which included corporations, to write the affidavit. But in today's decision, the appeal court rejected that ground. "To save time and expense, the other applicants agreed that he could represent them as their agent and make submissions on www.lawtimesnews.com their behalf," Laskin wrote of O'Hara. "They also agreed that a single omnibus application would be brought on behalf of all the applicants. The application judge recognized that this was a sensible course of action. In his procedural order No. 7, he confirmed that the application was brought with his prior approval." Malamas also argued Superior Court Justice Frank Newbould didn't have authority to conduct the vexatious litigant application; there were inconsistencies in his reasons; and there was no admissible affidavit evidence in support of the application. The appeal court rejected all of those grounds as well. Malamas' long saga dates back to the 1980s. He says he has spent more than $1 million in legal costs and argues the system has failed him. While he suggests lawyers are abusing the court process, Ray Thapar, counsel for the parties that brought the vexatious litigant application, notes he first started doing work on the case as an articling student 13 years ago. He describes the long-standing case as being the result of "an overwhelming obsession with conspiracy." LT

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