It is with high conflict divorces that healthcare workers are most needed to assist the families. The types of services provided by healthcare workers, mainly psychologists and social workers, in acrimonious divorces include counselling, assessments, child interviews and, in some cases, mediation and arbitration.
Ironically, the very same cases that desperately required these non-legal services, are the cases most fraught with complaints made against the very same professionals that were hired to assist the family.
Although no professional wishes to be the subject of a regulatory complaint that requires a defence and could result in a caution, or worse, the risk of disciplinary action, healthcare professionals are the ones most alarmed by such conduct.
In the case of Schuur v Sas, 2023 ONSC 2852, the parents were embroiled in a very conflictual divorce proceeding involving a fight over parenting, parental decision-making and child support for their two daughters.
The judge appointed a psychologist to assess and report on the daughters’ needs and the parents’ willingness and ability to satisfy those needs.
After conducting a very careful, thorough and methodical investigation, the psychologist recommended custody of the daughters to their father and reintegration therapy because the mother had alienated the daughters from their father. The psychologist reported that a change-over in custody was necessary because there was no possibility that the mother would foster a relationship between the children and their father. The report stated that the mother severely damaged the daughters’ relationship and attachment to their father.
The mother was displeased with this result, and had chosen to file a complaint against the psychologist with the College of Psychologists.
The litigation between the psychologist and the mother took on a life of its own. Within the complaint, the mother asked that the psychologist’s notes and records, including the defence to the complaint, be disclosed. The College found that the psychologist met the professional standards for the investigation, formed no premature opinions about the mother, and extended no preferential treatment to the father.
The mother asked for a review of this decision. The College dismissed her review. The College also approved the psychologist’s request to not disclose her defence to the complaint.
The mother was not satisfied with that outcome, and so she had escalated the complaint for a judicial review before the Divisional Court.
The mother was mostly unsuccessful, both in her litigation with the psychologist, and in the litigation with the father.
But the takeaway is that healthcare workers who become involved in high conflict divorce cases need to be extremely careful, maintain appropriate boundaries, keep superb records of all communications, observations and findings, and be prepared to defend their recommendations and even regulatory complaints made against them.
CASE LINK: https://www.canlii.org/en/on/onscdc/doc/2023/2023onsc2852/2023onsc2852.html
Editorial Note: Originally published in 2023, this article offers essential guidance for healthcare professionals working with families in high-conflict divorces. While case law evolves, the insights and cautions remain highly applicable.
Steve Benmor, B.Sc., LL.B., LL.M. (Family Law), C.S., Cert.F.Med., C.Arb., FDRP PC, is the founder and principal lawyer of Benmor Family Law Group, a boutique matrimonial law firm in downtown Toronto. He is a Certified Specialist in Family Law, a Certified Specialist in Parenting Coordination and was admitted as a Fellow to the prestigious International Academy of Family Lawyers. Steve is regularly retained as a Divorce Mediator/Arbitrator and Parenting Coordinator. Steve uses his 30 years of in-depth knowledge of family law, court-room experience and expert problem-solving skills in Divorce Mediation/Arbitration to help spouses reach fair, fast and cooperative divorce settlements without the financial losses, emotional costs and lengthy delays from divorce court.
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