Can a child custody expert retained to provide an assessment of the children and their parents, modify his or her role during an arbitration where he is the expert, and put on the additional hat of mediator? That is the question the Ontario Superior Court considered in Spadacini-Kelava v. Kelava 2020 ONSC 5561.
The parties, who married in 2000, had two children, D. born in 2008 and C. born in 2010. In 2014 the couple decided that their severely autistic daughter, C., would benefit greatly from a specialized program available in Indiana. The wife and D. and C. relocated to Indiana on a time limited visa, while the husband remained in Oakville, Ontario visiting his wife and children frequently. Unfortunately, the marriage broke down in May of 2015 and the parties separated, with the husband remaining in the family home in Oakville and the wife remaining in Indiana with the two children. Ms. Kelava initiated family law proceedings in Ontario and refused to allow the children to see their father for three-months post-separation. Her anger was related to revelations that her husband had engaged in extra-marital activities in her absence.
The wife’s pleadings included her request for an order that she be permitted to remain in Indiana permanently with the children. In January 2016 the court referred the parenting and other issues to arbitration and ordered that psychologist Dr. Irwin Butkowsky conduct a custody assessment.
During the course of his assessment the parties requested that he assist their very experienced arbitrator to attempt to mediate a solution to their parenting issues. Dr. Butkowsky reluctantly agreed to engage in the process requested by the parties. His consent was predicated on the parties’ explicit agreement that if the mediation process failed, neither party would object to him continuing in his role of assessor and neither would raise it as an issue in any other proceeding.
The mediation was not successful and Dr. Butkowsky completed a 90-page report, which was admitted into evidence before the arbitrator. The arbitrator relied heavily on the doctor’s interviews of the parties and the children and his clinical observations, but did not allow the expert to usurp his role, by paying little heed to Dr. Butkowsky’s recommendations.
The arbitrator rendered his decision, ordering that the wife and two children return to Ontario based on a specific timeline to allow D. to complete his school year. Upon their return the mother would have primary residence and the majority of parenting time. If the parties failed to agree on a matter regarding the children, she would have the final say.
The arbitrator found that D. was severely distressed at being away from his father, friends, and other family in Oakville, suffered from depression and anxiety, and had threatened suicide, leading the arbitrator to conclude that his best interests would be served by a return to Canada. The arbitrator also held that an autism program equivalent to the high-level intensive Indiana program was available in Toronto for C. He emphasized the documentary evidence that proved that Ms. Kelava’s move to Indiana was never intended to be permanent.
Both parties appealed the arbitrator’s award, with Ms. Kelava citing the dual role played by Dr. Butkowsky as one of her grounds for appeal, while Mr. Kelava objected to his marginalized parenting position once the family relocated back to Ontario.
The court indicated that the standard of review of an appeal from an arbitrator mirrored the deferential standard required in an appeal from a judge, citing Rosenberg v. Yanofsky 2019 ONSC 6886 and O’Connell v. Awada 2019 ONSC 273:
“The Court should not interfere with an arbitrator’s award unless it is satisfied that the arbitrator acted on the basis of a wrong principle, disregarded material evidence, or misapprehended the evidence.”
The court reviewed Ms. Kelava’s submission that the arbitrator erred in law by failing to recognize the procedural and substantive flaws in Dr. Butkowsky’s report, according it undue weight. Her argument centered on the dual roles adopted by the expert, his knowledge of the parties’ settlement positions, and the delay inherent in resorting to mediation prior to the arbitration. At the hearing before the court Dr. Butkowsky admitted that the process “may have impacted the reliability and validity of the findings” and he questioned whether he would engage in such a process in the future.
What Ms. Kelava failed to refer to was her specific agreement that Dr. Butkowsky adopt the roles of mediator and expert assessor, which required her undertaking not to raise this in a future proceeding, which she acceded to. Importantly, the court observed that there was no request by her counsel that Dr. Butkowsky discontinue as expert assessor after the mediation broke down, and no submissions at the arbitration hearing that his report be deemed inadmissible, although her counsel did argue that it should be afforded minimal weight.
In dismissing her appeal, the court noted that Ms. Kelava was unable to cite any authorities that would point to any impropriety in Dr. Butkowsky accepting the dual roles. The court then referred to an Ontario Court of Appeal case where Dr. Butkowsky also adopted dual roles and his evidence was preferred to the evidence of an expert who critiqued his report, albeit his dual role was not criticized by opposing counsel or the court. M. v. F. 2015 ONCA 277.
The attraction of using a child custody expert to work with the parties to achieve consensus is readily apparent. Typically, both parties appreciate the expertise and special skills that such an expert brings to the task. In a recent case, this author, with the consent of opposing counsel, invited the parties’ expert, who had prepared a report, to attend at a judicial settlement conference, to assist the court and the parties to agree to a parenting plan in a situation where their three-year old child travelled between father’s residence in British Columbia and mother’s home in Saskatchewan, an engagement and settlement conference that resulted in a consent order.
The conflict that Ms. Kelava alleged, that the expert was aware of each parties’ position by virtue of the mediation role, is similar to the process involved in a med/arb, where the decision-maker learns the intricacies of each parties’ bottom line, but is expected to excise that knowledge in his or her role as arbitrator and does so effectively.
Lawdiva aka Georgialee Lang
** This article was first published by The Lawyers Daily, a publication of Lexis Nexis Canada.