Each weekend I like to review the recently reported decisions from British Columbia and Alberta. They are available online at the Supreme Court of British Columbia website and the Alberta Court of Queen’s Bench website (via CanLII).
This Saturday (while I was getting my hair done) I came across a “must-read” decision of the Honourable Madam Justice D. L. Pentelechuck from the Alberta Court of Queen’s Bench: A.J.U. and G.S.U. (2015 ABQB 6) (“AJU”) (NOTE/CAUTION: People do laugh at me when I come into the salon with a stack of recent court decisions and highlighters).
The AJU decision “offers an opportunity to consider the role that Court-appointed Parenting Experts play in the determination of the best interest of children, and the evidentiary standard to which the parties should be held in a custody dispute.” (paragraph 3).
In the AJU case, Justice Pentelechuck considers a situation where the father sought sole custody of the parties’ two daughters and the court appointed parenting specialist supported his claim in an assessment report which recommended that the father have sole custody of the children. At first blush this might seem like a strong case for the father – his position is supported by an expert.
From my perspective, this case is an illustration of the importance of critical and objective review of the evidence and allegations put forward in parenting disputes. In this case, while the father initially may appear to have a strong case (supported by an expert report), throughout the trial, counsel for the mother, Renee R. Cochard Q.C., illustrated – both by objective evidence and cross examination of the parenting expert and father – that the report was flawed and the criticisms of the father towards the mother’s parenting time were without merit. This written decision highlights the importance of (both counsel and the parties) carefully reviewing the evidence and allegations forwarded in parenting disputes. Ms. Cochard’s successful cross examination of the Parenting Expert diminished the persuasive value of the expert report that was before the court.
By way of example the father “takes issue with [the mother’s] purchase of a trampoline, and also objects to the girls’ participation in horseback riding, and tubing down the Pembina River with their mother.”
The Justice did not find validity to this concern and noted that “The Trampoline in question is an 18” high “Dora the Explorer” trampoline” (paragraph 55) and “None of these complains, individually or collectively, have merit” (paragraph 57).
Further, in regard to the report of the Parenting Expert, the court noted: “First, the basis for her recommendations were seriously undermined during cross-examination” (Paragraph 96). For example, the Parenting Expert noted in her report that the children appeared to be getting sunburnt during the time she observed them, however, during cross examination the parenting expert “admits she did not confirm whether or not the girls actually suffered sunburn on that particular day” (Paragraph 97). Another example of the erosion of the validity of the expert report at trial was that the expert alleged that the mother did not follow-through on educational matters. However, cross examination exposed that the expert “did not see the educational centre [the mother] had in the basement.”
This case is a good read if you are going through a high conflict parenting dispute and there are expert reports and/or evidentiary issues. The court provides a review of expert evidence (starting at paragraph 132), hearsay evidence (starting at paragraph 135), illegally obtained evidence (starting at paragraph 151), and lay opinion evidence (starting at paragraph 170). Counsel, self-represented litigants and parties to parenting disputes will benefit from reading this case.