



COURT OF APPEAL FOR ONTARIO

CITATION: K.K. v. M.M., 2022 ONCA 72

DATE: 20220126

DOCKET: C69393

Paciocco, Nordheimer and Coroza
    JJ.A.

BETWEEN

K.K.

Applicant (Appellant)

and

M.M.

Respondent (Respondent)

Gary S. Joseph, for the appellant

Aida Pasha, for the respondent

Heard: September 3, 2021 by video conference

On appeal from the order of Justice Cynthia
    Petersen of the Superior Court of Justice, dated April 9, 2021, with reasons dated
    June 1, 2021 and reported at 2021 ONSC 3975.

By the Court:

OVERVIEW

[1]

The parties married in 2003 and separated
    in 2012. Regrettably, following separation they engaged in high-conflict
    litigation involving their children, V.K., and J.K. The trial judge described
    this case as a heartbreaking saga of family violence and parental alienation.

[2]

At the time of trial, the children
    were living in separate residences  J.K. with the appellant and visiting the
    respondents (his mother) house on weekends, and V.K. with the respondent.

[3]

After a 19-day trial, the trial
    judge directed that the childrens principal residence would be with the
    respondent, reversing the status quo living arrangement for J.K. The trial
    judge directed that the respondent would have sole responsibility for making
    all day-to-day and significant decisions without being required to consult the
    appellant. The order also addressed issues of child support, section 7 expenses
    under the
Federal Child Support Guidelines
, SOR/97-175, travel restrictions, and restricted
    contact.

[4]

On appeal, the appellants focus is
    on his son J.K. He submits that J.K.s primary residence should be with him and
    that the trial judge erred by reversing the
status quo
that had remained in place for six and a half years
    before trial. The appellant requests that the final order of the trial judge be
stayed
, that J.K. be returned to his care,
    and that the respondents parenting time for both children revert to the
status
    quo
before trial.

[5]

In support of his submission, the
    appellants written materials alleged several legal errors, which were narrowed
    down by counsel in oral submissions to the following two complaints:

1.

The trial judge erred in her application of the best interests test as
    set out in s. 16 of the
Divorce Act
, R.S.C., 1985, c. 3 (2nd Supp.).

2.

The trial judge failed to meaningfully consider the recommendations of Dr. Goldstein,
    a court-appointed assessor who had prepared reports during the litigation pursuant
    to s. 30 of the
Childrens Law Reform Act
, R.S.O. 1990, c. C.12 (CLRA).

[6]

At the end of the hearing, the
    appeal was dismissed, with reasons to follow. These are those reasons.

BACKGROUND FACTS

[7]

The parties were married in India.
    They immigrated to Canada so that the appellant could practice medicine. The
    family initially lived in Newfoundland and then Ontario. The parties separated
    in November 2012. The appellant filed an application issued on January 3, 2013
    and the respondent filed her answer on February 27, 2013.

[8]

Prior to trial,
the parties had
    approximately 40 court appearances at motions and conferences.
During
    the litigation, several pre-trial orders about the childrens primary residence
    were made. Importantly, sole custody of the children was granted to the
    appellant father based on an interim finding of a motion judge of parental
    alienation by the respondent mother in March 2014.
[1]

[9]

In making the interim finding of
    parental alienation, the motion judge relied on the expert evidence of a
    court-appointed assessor named Dr. Sol Goldstein pursuant to s. 30 of the
CLRA
.
Dr.
    Goldstein provided opinion evidence that V.K. had been alienated from the
    appellant by the respondent and that both V.K. and the respondent conspired to
    alienate J.K. from the appellant. Dr. Goldstein expressed the view that V.K.s
    mental health was being seriously compromised by the respondents influence. He
    recommended the immediate removal of the children from the respondents care.

[10]

Once the interim
    finding of parental alienation had been made, for the next six and a half years,
    the children resided with the appellant and the respondent had only limited
    parenting time, including lengthy periods of no contact or communication with
    her children.

[11]

The trial did not start until
    November 30, 2020. At trial,
the appellant intended to call Dr. Goldstein as a witness to testify about the
    assessment he was appointed to conduct. However, Dr. Goldstein did not appear
    for trial despite being served with a summons to attend by the appellant. The
    appellant did not ask for an order from the trial judge compelling the doctor
    to attend. Instead, he sought to admit Dr. Goldsteins s. 30 CLRA

reports into
    evidence and asked the trial judge to give weight to the opinions and
    recommendations contained in them. For her part, the respondent objected to the
    admissibility of Dr. Goldsteins assessment reports and letters. This objection
    was based on findings of the College of Physician and Surgeons (CPSO) arising
    from complaints that she filed against him. Among other things, the respondent sought
    to admit a copy of a decision of the Inquiries, Complaints and Reports (ICR)
    Committee of the CPSO dated April 16, 2018, pertaining to one of her
    complaints. The decision set out that the ICR Committee had serious concerns
    about Dr. Goldsteins approach to the s. 30 assessment in this case. The
    appellant objected to the introduction of this material, citing s. 36(3) of the
Regulated Health Professions Act
, 1991, S.O. 1991, c. 18 (
RHPA
) which makes
    records of regulatory proceedings at the CPSO and decisions made in them
    inadmissible in civil proceedings.
The
    trial judge held that the prohibition did not apply in this case and that no
    weight would be given to Dr. Goldsteins opinions or recommendations.

[12]

During trial, the parties focused
    on the allocation of parental decision-making, the question of with whom the
    children should primarily reside, and the question of parental alienation.
[2]

[13]

After an exhaustive and lengthy
    review of the evidence, the trial judge found that the appellant was not a
    credible witness. In contrast, the trial judge found that the respondent was
    credible and that she had not engaged in alienating conduct, but instead was
    the target of vilification and the victim of parental alienation created by the
    appellant.

[14]

The trial judge concluded that
    there was an abundance of evidence that both children have been subjected to
    verbal, emotional and psychological abuse by the [appellant] and that the
    physical, emotional and psychological safety, security and well-being of both
    children would best be fostered if they were living together in [the respondents]
    home.

FRESH EVIDENCE

[15]

At the outset of the hearing, the
    appellant attempted to file fresh evidence allegedly relating
to the determination of the issues under
    appeal.

[16]

The fresh evidence, an affidavit proffered by the appellant, purports
    to show that the respondent is
wilfully

breaching the final order of the trial judge and is
    undermining the appellants
relationship with J.K.
The
    appellant argues that it is not unusual in this type of high-conflict case for
    this court to receive updated information on appeal with respect to matters that
    relate to the best interests of the children. He submits that the
wilful
breaches by the respondent are an overarching concern
    on this appeal. For her part, the respondent
submits
    that she has taken her responsibility as the decision-making parent very
    seriously. She contends she has used her discretion in the best interests of
    the child.
Where she had concerns about specific
    details of the order and its effect on the child, she sought relief in the
    Superior Court to avoid being in breach of the trial judges order.

[17]

The test for admitting
    fresh evidence on appeal requires the moving party to satisfy four criteria:
    (i) the evidence could not have been adduced at trial; (ii) the evidence must
    be relevant in that it bears on a decisive or potentially decisive issue; (iii)
    the evidence must be reasonably capable of belief; and (iv)
the evidence must be such that, if believed, it could
    reasonably, when taken with the other evidence adduced at trial, be expected to
    have affected the result
:
R. v. Palmer
, [1980] 1 S.C.R. 759, at p. 775. This
    court recently reaffirmed in
Bors v. Bors,
2021 ONCA 513, 60 R.F.L. (8th) 36, that
    the
Palmer
criteria are more flexible where an appeal involves
    the best interests of children, where it is important to have the most current
    information possible [g]iven the inevitable fluidity in a childs
    development:
Goldman v. Kudelya
,

2017 ONCA 300
, at para.
25, citing
Childrens Aid Society
    of Owen Sound v. R.D.
(2003), 178 O.A.C. 69 (C.A.), at para. 21
.

[18]

Notwithstanding the
    flexible approach for receiving fresh evidence where an appeal addresses the
    best interests of children, the fresh evidence in the present case does not
    meet the test for admission. The proposed fresh evidence is essentially the
    appellants account of what has transpired with J.K. since the order under
    appeal was made, including complaints that the respondent has failed to comply
    with the order and that the final order is causing harm to J.K.

[19]

This evidence is not
    essential to our decision to deal with the appellants grounds of appeal.

As will become clear, even if the fresh evidence is believed, it could
    not reasonably, when taken with the other evidence adduced at trial, be
    expected to have affected the result. The trial judges final decision to
    remove J.K. from the appellants care was firmly rooted in the evidence and
    based on clear findings made against the appellants credibility. The
    appellants complaints about what has occurred after the trial judges final
    order, and any allegations about the respondents conduct should more properly
    be taken up with the trial judge. We note that the trial judges final order had
    a built-in review of her parenting order
after
    September 30, 2021.

[20]

Therefore, the motion
    to introduce fresh evidence is dismissed.

DISCUSSION

[21]

Before turning to the appellants
    arguments, a comment should be made about the trial judges reasons in this
    case. The reasons comprise 898 paragraphs over more than 300 pages. The trial
    judge obviously laboured over her reasons and provided careful and thoughtful
    analysis on the multiple issues raised by the parties. We recognize that the
    trial judge had the significant task of reviewing the long litigation history between
    the parties. We also recognize that for certain days during the trial, the
    appellant was self-represented, and the trial judge likely felt that this
    obligated her to specifically address every argument to demonstrate that his
    position was understood.

[22]

Nevertheless, there are portions of the reasons that contain
    lengthy verbatim summaries of evidence. This court has recently raised concern
    about these types of recitations of the evidence in reasons for judgment: see
Welton v. United Lands Corporation Limited
,
    2020 ONCA 322, 64 C.C.E.L. (4th) 265, at paras. 56-63;
R.F. v. J.W.
, 2021 ONCA 528, at para.
    34, n. 7;
N. v. F.
,
    2021 ONCA 614, 62 R.F.L. (8th) 7, at para. 266, n. 14,
per
Lauwers J.A. (dissenting),
leave to
    appeal granted,
[2021] S.C.C.A. No. 364.

[23]

Trial judges are not obliged to
    refer to every piece of evidence that is introduced at trial. All a trial judge
    must show is that they have grappled with the essential issues raised in the
    litigation. Given the narrow issues raised in this case  the best interests of
    the children  these verbatim summaries and, consequently, the length of the
    reasons, are problematic. One of the purposes behind the requirement to give
    reasons is to identify the issues to be resolved and to distill the evidence
    down to the facts that are relevant to those issues: see generally,
R. v. Sheppard
, 2002 SCC 26, [2002] 1 S.C.R. 869. The wholescale
    repetition of all the evidence heard does not fulfill that purpose. It does not
    help the parties who may be unable to understand the central basis for the
    decision reached. It does not help counsel in terms of their ability to
    understand and identify possible grounds of appeal. Finally, it does not help
    this court which must, among other things, then determine if extraneous facts
    influenced the trial judges analysis.

[24]

We now turn to the two main issues
    advanced by the appellant.

A.

BEST INTERESTS OF J.K.

[25]

According to the appellant, the
    trial judge erred in law by failing to adhere to the best interests analysis
    mandated by the applicable legislation and case law. He argues that the focus was
    not on J.K.s best interests. Specifically, he submits that the trial judge
    erred by failing to fully consider

the
    disruption caused to J.K. by removing him from the appellant, his school and
    his community, the negative effects on the relationship between J.K. and the
    appellant, and the desirability of maximizing contact between J.K. and both
    parents.

[26]

We do not accept these
    submissions.

[27]

We begin with the undisputed
    premise that since the order under appeal is a parenting order, the trial
    judges exercise of discretion and factual findings in connection with it are entitled
    to considerable deference on appeal:
A.M. v. C.H.
,
    2019 ONCA 764, 32 R.F.L. (8th) 1, at para. 4;
Van de Perre v. Edwards
, 2001 SCC 60, [2001] 2 S.C.R. 1014, at
    para. 13. In our view, there is no basis to intervene because the appellant has
    failed to point to any material error, serious misapprehension of the evidence,
    or error of law in the trial judges reasons: see
Van de Perre
,
at paras. 11-12.

The trial judge engaged in a full inquiry
    into the best interests of both children. The appellants submissions invite us
    to retry the case, which is not our function.

[28]

The trial judge was completely
    focused on the best interests of the children. That focus is evident throughout
    her reasons and especially so in the portions of her reasons that are dedicated
    solely to the best interests analysis.

[29]

First, the trial judge noted that,
    in considering the parties respective parenting plans, she was required to
    determine what orders were ultimately in the childrens best interests in
    accordance with s. 16 of the
Divorce Act
. Section 16(1)
    directs that the court shall take into consideration only the best interests
    of the child of the marriage in making a parenting order or a contact order
    and s. 16(3) sets out a number of factors that the court must weigh in carrying
    out the best interests analysis. The trial judge noted that this legislation does
    not create an exhaustive list of relevant factors and that the weight to be
    given to each factor depends on the circumstances of each case.

[30]

Second, the trial judge expressly
    considered the appellants argument that a continuation of the status quo with
    him as the primary caregiver would prevent uprooting the children and disrupting
    their routines. She concluded that these were important considerations but that
    they were more applicable to J.K. because V.K. had already made the transition
    to living in Toronto with the respondent. She noted that J.K. only started
    attending his current school shortly before the trial and that he did not have
    long-established friendships or relationships with teachers and staff at the
    school. The trial judge noted that J.K. would be required to change schools in
    another year to start high school and that the respondent had no intention of
    interrupting his current school year in any event.

[31]

Third, the trial judge weighed the
    appellants parenting plan, which involved the same arrangements he had made
    for the last seven years. She noted that the appellant works long hours and
    runs his own medical clinic. He required the assistance of two nannies who
    would continue to assist J.K. with his homework, take the children to
    appointments, and oversee shopping and preparation of their meals. The trial
    judge found that the respondent, on the other hand, worked on average three
    days per week and spent more time with the children.

[32]

Fourth, the trial judge found that
    there was an abundance of evidence that both children were subjected to
    verbal, emotional, and psychological abuse by the appellant. She specifically
    found that he physically disciplined V.K. and, on more than one occasion,
    struck her when he was in a fit of rage. She concluded that the appellants
    inability to control his anger and his frequent resort to physical discipline
    of V.K. over a long period of time placed both children at risk of physical and
    psychological harm in his care, even if there was no evidence that he had ever
    struck J.K.

[33]

Fifth, the trial judge carefully
    considered J.K.s bond with the appellant. However, she found that it was in
    his best interests that he be removed from the appellants grip. The trial
    judge held:

Still, the greatest factor in favour of
    maintaining J.K.s primary residence with his father is his strong emotional
    attachment to K.K. He has been in his fathers primary care for most of his
    living memory. Separating J.K. from his father to live principally with his
    mother will no doubt have a serious emotional impact on him. I am, however,
    convinced that he needs to be removed from the poisonous atmosphere of his
    fathers orbit in order to escape the crushing pressure under which he has been
    placed. His best interests necessitate not only that he lives principally with
    his mother and sister, but also that he has no contact with his father for a temporary
    period of time.

[34]

Finally, the trial judge found
    that
the respondent, in
    contrast to the appellant who had devoted significant energy to vilifying her
    in the childrens eyes, has been consistently nurturing, yet firm and
    responsible, in her parenting.

[35]

Contrary to the appellants
    submission, the trial judge thoroughly considered J.K.s best interests. She
    sensitively and carefully considered only the best interests of each child as
    required by s. 16(1) of the
Divorce Act
. She clearly considered all factors related to the
    circumstances of each child, giving primary consideration to each childs
    physical, emotional and psychological safety, security and well-being, as
    required by s. 16(2). There is no basis to suggest that she erred in the
    assessment of best interests. Accordingly, this ground of appeal fails.

B.

ASSESSMENT OF S. 30 CLRA REPORTS

(1)

The Trial Judges Ruling

[36]

As noted above, the appellant
    father asked the trial judge to admit Dr. Goldsteins s. 30 CLRA reports
    and letters into evidence and to consider the parenting recommendations
    contained within.

[37]

The respondent objected to the
    admissibility of Dr. Goldsteins evidence. Her objection was based on findings
    of the CPSO arising from complaints that she filed against him. To support her
    objection, she sought to admit several items: a copy of the decision of the ICR
    Committee of the CPSO, copies of documents put before the ICR Committee, and a
    print-out of the CPSOs on-line Public Register indicating Dr. Goldsteins
    member status and his undertakings to the Discipline Committee of the CPSO. The
    reasons of the ICR Committee reveal that it had serious concerns about Dr.
    Goldsteins approach to the s. 30 assessment in the present case and concluded
    that he would benefit from remediation. The public undertakings restricted Dr.
    Goldsteins practice such that he undertook not to conduct any new assessments
    of individuals he believes have been subject to or have engaged in parental
    alienation and to terminate any ongoing practice related to parental
    alienation.

[38]

Dr. Goldstein also undertook not to
    provide opinion evidence about parental alienation to any third party, whether
    orally or in writing, in regards to individuals he had assessed or treated,
    except as required by law, in which case he was to advise the relevant parties,
    in advance of providing such opinion evidence, to consult the CPSOs Public
    Register.

[39]

The appellant objected to the admissibility of
    all the CPSO documents, in part because of the statutory prohibition found in
    s. 36(3) of the RHPA. Section 36(3) renders inadmissible in a civil proceeding
    a record of a proceeding under the RHPA, or a report, document or thing
    prepared for or statement given at such a proceeding.

[40]

The trial judge noted that the
    statutory prohibition did not render inadmissible the
fact
that a complaint was made and did not capture the website information
    referring to the undertakings given by Dr. Goldstein. The trial judge then
    proceeded to interpret s. 36(3) of the
RHPA
 specifically, whether the case before her fell within the meaning of a
    civil proceeding, thus engaging the prohibition.

[41]

After laying out the principles of
    statutory interpretation, the trial judge drew several distinctions between
    traditional civil proceedings and family law litigation, the interests at
    play and remedies available in each. She noted that her task was to interpret
    the legislation within the distinct contextual framework of family law
    parenting disputes wherein the childrens best interests are paramount.

[42]

The trial judge found that to
    consider this case a civil proceeding would yield an absurd result contrary
    to the legislatures intention. Upholding the prohibition would require her to
    ignore the ICR Committees findings. This, in turn, would force the respondent
    to duplicate the CPSO proceeding by calling expert evidence and proving
    deficiencies in the assessors reports from square one, resulting in more delay
    and expense in the litigation. Furthermore, finding the prohibition applied
    would mean determining the childrens best interests without reference to
    highly probative evidence about the validity of the opinions expressed by the
    court-appointed assessor.

[43]

The trial judge held that
    admitting the CPSO materials in the present case would not undermine the objectives
    of s. 36(3). Ultimately, she concluded that s. 36(3) of the RHPA did not apply,
    and in addition to her decision to admit the assessors public undertakings as
    information not captured by s. 36(3), she proceeded to admit the ICR
    Committees decision. Given the ICR Committees findings that the assessment
    reports were conducted in a substandard manner, she gave no weight to Dr.
    Goldsteins written recommendations, and concluded by noting that, in the
    alternative, had she not admitted the ICR decision, she still would not have
    relied on Dr. Goldsteins opinions unless the appellant produced the assessor
    for cross-examination, which he was unable to do.
[3]

(2)

The Appellants Argument

[44]

The appellant submits that the trial judge erred
    in treating s. 36(3) of the RHPA as inapplicable, which makes records of
    regulatory proceedings at the CPSO and decisions made in them inadmissible in
    civil proceedings. He argues that the trial judge erred in concluding that a
    family law proceeding is not a civil proceeding as contemplated by the RHPA. Her
    decision to admit the CPSO materials tainted her decision and she erroneously
    gave no weight to the assessors opinion or recommendations.

(3)

Does s. 36(3) of the RHPA prohibit the admission of the CPSO materials?

[45]

Section 36(3) of the RHPA

provides the following:

No record of a proceeding under this Act, a health profession
    Act or the
Drug and Pharmacies Regulation Act
,
    no report, document or thing prepared for or statement given at such a
    proceeding and no order or decision made in such a proceeding is admissible in
    a civil proceeding other than a proceeding under this Act, a health profession
    Act or the
Drug and Pharmacies Regulation Act
or a proceeding relating to an order under section 11.1 or 11.2 of the
Ontario Drug Benefit Act
.

[46]

As the trial judge correctly
    stated, these words must be read in their entire context and in their
    grammatical and ordinary sense harmoniously with the scheme of the Act, the
    object of the Act, and the intention of the legislature:
Rizzo & Rizzo Shoes Ltd. (Re)
, [1998] 1 S.C.R. 27, at para. 21;
Bell ExpressVu Limited Partnership v. Rex
, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26.

[47]

On a plain reading, this section
    creates a blanket prohibition against admitting in a civil proceeding any records,
    reports or documents directly related to a proceeding under the RHPA. The text
    of the provision leaves no room for exception or discretion in relation to the
    specific items mentioned: a record of a proceeding, a
report, a document
    or thing prepared for or statement given at such a proceeding, or an order or decision
    made in such a proceeding
.

[48]

That said, anything not
    specifically mentioned is fair game. As mentioned, the trial judge noted that
    the statutory prohibition did not preclude admissibility of evidence of the
fact
that a complaint was made and did not capture the website information
    referring to the undertakings given by Dr. Goldstein. We agree. The law is
    clear that the
fact
that a complaint was launched, an investigation held,
    and a decision rendered by the IRC are not covered by s. 36(3) of the RHPA and
    may be otherwise provable in court, without reference to a prohibited document:
F. (M.) v. Sutherland
(2000)
, 188 D.L.R. (4th) 296
    (Ont. C.A.), at para. 45, leave to appeal to S.C.C. refused, [2000] S.C.C.A.
    No. 531;
Pouget v. Saint
    Elizabeth Health Care
, 2012 ONCA
    461, 294 O.A.C. 293, at para. 25;
Ontario v. Lipsitz
, 2011 ONCA 466,
281
    O.A.C. 67, at para. 114, leave to appeal refused, [2011] S.C.C.A. No. 407;
Armitage v. Brantford General Hospital
(2004), 71 O.R. (3d) 44 (S.C.), at para. 29.

[49]

As well, Dr. Goldsteins
    undertakings, while they may have been made in response to a decision or order
    covered by s. 36(3), are also not themselves either a decision or order
    captured by s. 36(3). The undertakings were generated by Dr. Goldstein himself,
    not by the board, and presumably were also generated after the board had
    completed its process and released its decision. The rationale that applies to
    keeping the other items listed in s. 36(3) confidential does not apply to them.
    Public undertakings are not meant to be confidential, they provide the public
    with notice, and their admission in civil proceedings where a trial judge deems
    them relevant does not undermine the purpose of s. 36(3), discussed below. We
    therefore agree with the trial judge that the undertakings themselves were
    admissible.

[50]

However, we respectfully disagree
    with the trial judges conclusion that all proceedings involving the best
    interests of the child are not civil proceedings and entirely evade the reach
    of s. 36(3) of the RHPA. In our view, an exemption for all family law cases goes
    too far.

[51]

First, private family law
    disputes, while distinct from other civil litigation in many respects, are
    civil proceedings in the ordinary sense of the word: they concern private
    relations between members of the community in contrast to criminal or child
    protection proceedings, which both involve state action. If the legislature had
    intended to exempt family law litigation from the reach of s. 36(3), it would
    have said so.

[52]

As this court explained in
Sutherland
, at para. 29,

The purpose of s. 36(3) is to encourage the reporting of complaints
    of professional misconduct against members of a health profession, and to
    ensure that those complaints are fully investigated and fairly decided without
    any participant in the proceedings  a health professional, a patient, a
    complainant, a witness or a College employee  fearing that a document prepared
    for College proceedings can be used in a civil action.

[53]

The
    broad objective of the provision is to keep College proceedings and civil
    proceedings separate:
Sutherland,
at para. 31;
    see also
Lipsitz
,
at paras. 101-3.

[54]

A global exemption to s. 36(3) for all family law
    cases would significantly erode the reach and purpose of s. 36(3). This is
    because unfortunately, family law disputes involving the best interests of
    children are fairly common. It would not be unusual for one of the many
    participants in an RHPA proceeding to at some point become involved in a family
    law proceeding involving the best interests of children.

[55]

Fortunately, it is possible to
    preserve the integrity and purpose of s. 36(3) of the RHPA while also giving effect
    to the purpose of Part III of the CLRA, which includes ensuring, that
    applications to the courts respecting decision-making responsibility, parenting
    time, contact and guardianship with respect to children will be determined on
    the basis of the best interests of the children and to s. 30 of the CLRA,
    under which Dr. Goldsteins report was prepared, the purpose of which is to
    report to the court on the needs of the child and the ability and willingness
    of the parties or any of them to satisfy the needs of the child.

[56]

The trial judge was aware of the
    need to avoid absurdity in the context of these two distinct legislative
    schemes. Specifically, the trial judge was appropriately concerned that in the
    circumstances of this case, where a motion judge had relied on Dr. Goldsteins
    opinions in finding parental alienation by the mother, which in turn resulted
    in a reversal of custody and a temporary order that lasted for more than six
    years, the court should not be deprived of highly probative evidence regarding
    the validity of those opinions and recommendations.

[57]

However, absurdity is avoided and
    the ordinary meaning of s. 36(3) preserved in two ways. First, although it is
    indisputable that increased efficiency could be achieved by allowing for the
    admissibility in family law proceedings of orders or decisions made at a
    proceeding governed by the RHPA, or a r
eport, document or thing
    prepared for or statement given at [an RHPA governed] proceeding, s.
36(3) does not create an evidentiary privilege
    relating to the information or evidence used to prepare such orders, decisions,
    reports, documents, things or statements. There is nothing to prevent the
    parties from selecting and presenting such background evidence or information
    so that a trial judge is not deprived of highly probative evidence regarding
    the validity of relevant opinions and recommendations. Second, and as already
    explained, s. 36(3) does not apply to the fact that the complaint was made, the
    fact that an investigation was conducted, and the fact that a board decision
    was rendered and undertakings given. As this case demonstrates, depending on
    the circumstances those facts may be relevant when determining the probative
    value to give to opinions and recommendations. When these limitations on the
    reach of s. 36(3) are considered, harmony [can be achieved] between the
    various statutes enacted by the same government:
Therrien
    (Re)
, 2001 SCC 35, [2001] 2 S.C.R.
    3, at para. 121;
Shaver-Kudell Manufacturing Inc.
    v. Knight Manufacturing Inc.
, 2021
    ONCA 925, at para. 28.

(4)

Conclusion

[58]

In conclusion, while the
    confidentiality protections of s. 36(3) of the RHPA do apply to family law
    proceedings involving children, in our view the trial judges decision in this
    case was justified. Taken together, the fact of the complaint, the fact that an
    investigation was conducted and a decision given, and the content of the public
    undertakings were all admissible and sufficient to support the decision to give
    Dr. Goldsteins opinions no weight.

[59]

We note that it is by no means
    clear that Dr. Goldsteins opinions, even given more weight, would have
    affected the trial judges overall decision to reverse the status quo parenting
    arrangement. We say this acknowledging that the weight to be attached to the
    assessors evidence of any expert is a matter for the trier of fact. The trial judge
    was aware that the opinion likely supported the status quo because Dr.
    Goldsteins reports were used by the motion judge in making an interim order. However,
    the trial judge gave detailed reasons for why she did not agree with
    maintaining the status quo. As we have set out in this judgment, we are
    satisfied that her findings against the respondents credibility and the best interests
    of J.K. are clearly supported by the record.

[60]

We would not give effect to this
    ground of appeal.

C.

OTHER GROUNDS

[61]

While other grounds of appeal
    were advanced by the appellant in his factum, they were not pressed in oral
    argument or only dealt with in a cursory manner. These issues may be dealt with
    summarily as follows.

(1)

The Assessment of the Appellants Credibility and Evidence

[62]

The trial judge found that the
    appellant was an incredible witness. In contrast, she found that the respondent
    was a credible witness and that her evidence was corroborated by other credible
    evidence at trial including the testimony of the Office of the Childrens
    Lawyer (OCL) clinician, Ms. MacKenzie, and the Childrens Aid Society (CAS)
    worker, Mr. Thomas. The appellant submits that the trial judge made several
    palpable and overriding errors in her assessment of his evidence. He argues
    that the trial judge improperly impugned his credibility, failed to consider
    the whole of the evidence, and improperly drew adverse inferences against him. We
    disagree.

[63]

In assessing his credibility, the
    trial judge found that the appellant:

i.

made several misrepresentations in his Form 35.1 sworn parenting
    affidavit filed before the court;

ii.

concealed from a case supervision judge his plans to travel with the
    children to India;

iii.

misrepresented the status of his health to obtain adjournments of the
    trial under false pretexts;

iv.

tendered a fake Indian hospital record as evidence during the trial;

v.

demonstrated a selective memory during cross-examination;

vi.

became evasive when confronted with difficult questions; and

vii.

made
    several prior inconsistent statements.

[64]

These unequivocal findings were
    amply supported in the record, and there is no basis to interfere with any of
    them.

(2)

Adequate Weight to J.K.s views and preferences

[65]

The appellant submits that the
    trial judge failed to give adequate weight to J.K.s views and preferences as required
    by law. We reject this submission. As noted above, the trial judge carefully
    considered reports from the CAS, the OCL
Voice of
    the Child
report, and the evidence
    of Mr. Thomas and Ms. MacKenzie (the author of the OCL
Voice of the Child

report) setting out the childrens
    views and preferences. The trial judge was aware of J.K.s preference to live
    with the appellant. However, in relation to J.K. the trial judge found that J.K.s
    level of maturity is commensurate with his pre-teen age and that his views
    have been profoundly influenced by [the appellants] relentless vilification of
    [the respondent].

[66]

In a case
where both parties made allegations of parental
    alienation against the other, the trial judge was required to carefully examine
    the possibility that the childrens views may not be independently formed. The
    trial judges reasons demonstrate common sense and a reasoned approach to the
    childrens views. The CAS reports, the OCL
Voice of
    the Child
report, and the
    testimony from the authors of the reports were reviewed by the trial judge and sufficient
    to convey the childrens views and preferences. The trial judge recognized that
    J.K. had a strong emotional attachment to the appellant but felt that his views
    had been manipulated by the appellant. We defer to her findings and dismiss
    this ground of appeal.

DISPOSITION

[67]

As explained above, this appeal was
    dismissed at the conclusion of the oral hearing. The panel requested that if
    the parties were unable to agree on costs, the court would receive brief
    written submissions. We have received those submissions. The respondent is
    entitled to costs in the amount of $20,000 all inclusive.


David M. Paciocco J.A.


I.V.B. Nordheimer J.A.

S.
    Coroza J.A.





[1]
We use the former terminology of custody (which is no longer used
    in the legislation) only when referring to this order made in March 2014.



[2]

Although support issues were also litigated at trial, the
    appellant did not advance any support arguments in his factum or oral
    submissions. Needless to say, there is no basis to interfere with the trial
    judges findings on any of the support issues.



[3]

The trial judge also noted that the appellant did not ask
    her to compel Dr. Goldstein to attend cross-examination, but had he done so,
    she would have denied the request based on [Dr. Goldsteins] undertakings. Though
    not directly argued on appeal except for a brief mention in oral argument, we note
    that, as set out above, Dr. Goldsteins undertakings included an exception for
    giving opinions about individuals he has assessed where required by law. A
    court order summoning him to testify would have engaged this exception.


