WARNING

The court hearing this matter directs that the following notice should be attached to the file:

This is a case under Part III of the Child and Family Services Act and is subject to one or more of subsections 48(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply, read as follows:

45.— (7) Order excluding media representatives or prohibiting publication.

The court may make an order:

(c) prohibiting the publication of a report of the hearing or a specified part of the hearing,

where the court is of the opinion that publication of the report would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding.

45.— (8) Prohibition: identifying child.

No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child's parent or foster parent or a member of the child's family.

45.— (9) Idem: order re adult.

The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

85.— (3) Idem.

A person who contravenes subsection 45(8) or 76(11) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

Court Information

Court File No.: C51951/10

Ontario Court of Justice

Toronto North Family Court

In the Matter of an Amended Protection Application Respecting K.P., Born on […], Under Part III of the Child and Family Services Act, R.S.O. 1990, c. 11.

Parties

Between:

Catholic Children's Aid Society of Toronto

Robin Vogl, for the Applicant

Applicant

- and -

M.M. and J.P.

Respondents

Lance Carey Talbot, for the respondent, M.M. The respondent, J.P., acting in person

Heard: May 29, 2012

Justice: S.B. Sherr

Ruling on Voir Dire

Part One – Introduction

[1] The Catholic Children's Aid Society of Toronto (the society) has brought an amended protection application seeking a finding that the child, K.P. (the child), born on […], is a child in need of protection pursuant to subclauses 37(2)(b)(i) and (ii) of the Child and Family Services Act (the Act). They are also asking for an order that the child be made a crown ward, without access, for the purpose of adoption.

[2] The respondents, M.M. (the mother) and J.P. (the father), are the child's parents. They ask that the society's application be dismissed. In the alternative, if the child is found to be in need of protection, they ask that she be placed with them, subject to society supervision.

[3] The trial of this case began on May 28, 2012.

[4] The society seeks to introduce the opinion evidence of Dr. Jean-Victor Wittenberg, a psychiatrist. They ask that he be qualified as an expert in parenting of children, and in particular young children, and the impact of substance abuse on such parenting.

[5] The parents oppose the introduction of this evidence. They argue that:

a) The proposed evidence is not relevant;

b) The proposed evidence is not necessary;

c) The prejudicial effect of the proposed evidence outweighs any probative value;

d) Dr. Wittenberg should not be qualified as an expert as tendered by the society; and

e) The society did not comply with the notice requirements for expert evidence set out in sub-rule 23(23) of the Family Law Rules (the rules) and it would be unduly prejudicial to them to admit this evidence.

[6] A voir dire on this issue was conducted on May 29, 2012. Only Dr. Wittenberg testified. The parties made submissions.

[7] After conducting the voir dire, I gave brief oral reasons setting out why I would not permit the society to introduce the opinion evidence of Dr. Wittenberg (in order that no court time was lost) and indicated that detailed written reasons would follow shortly. These are those reasons.

Part Two – Brief Background

[8] The mother has three children - the subject child and two children, ages 12 and 14 (the siblings), who have a different father.

[9] All of the children lived with the respondents until August 29, 2010. At that time, the siblings went to live with their father. The respondents were charged with assaulting the siblings.[1] The siblings have lived with their father continuously since then.

[10] The society apprehended the child on September 2, 2010. The child has remained in society care since that time.

[11] The primary protection concern raised by the society is the degree of the parents' alcohol use and the impact this has had and may have on their parenting of the child.

[12] Dr. Wittenberg has never met the child or the respondents. The society delivered a summary of his proposed evidence to the respondents on May 22, 2012.

Part Three – Legal Considerations

[13] The "Inquiry into Paediatric Forensic Pathology in Ontario" (Toronto: Queen's Printer for Ontario, 2008) (the Goudge report), released on October 1, 2008, states that judges have a vital role to play in protecting the legal system from the dangers of unreliable expert evidence. The report urges judges to take a more rigorous approach to examining the reliability of expert evidence. While the report concentrates on criminal law, many of the recommendations in the report are equally applicable to family law, where it is just as critical that decisions which affect the future of children and families be made on the basis of reliable evidence.

[14] The leading authority in determining whether to give leave to introduce opinion evidence is R. v. Mohan, [1994] 4 S.C.R. 9, where the Supreme Court of Canada set out a four-part test for the admissibility of expert evidence. The evidence must be:

1. Relevant;

2. Necessary in assisting the judge;

3. Not subject to an exclusionary rule; and

4. Given by a properly qualified expert.

[15] In R. v. K.A., [1999] O.J. No. 3280 (Ont. C.A.), the Ontario Court of Appeal set out the following questions for the court to ask in determining the necessity of the evidence:

a) Will the evidence allow the court to appreciate the technicalities of a matter in issue?

b) Will the evidence provide information likely to be outside the experience of the judge?

c) Is the judge unlikely to form a correct judgment about a matter in issue if unassisted by the evidence?

d) What is the complexity of the evidence? Is it easily understood or likely to confuse?

e) To what extent is other evidence available to assist in determining the issue?

f) Is the need for the evidence sufficient to overcome its potential prejudicial effect?

[16] The Ontario Court of Appeal more recently set out an admissibility test for expert evidence (incorporating the factors discussed above in a re-ordered fashion) in R. v. Abbey, 2009 CarwellOnt 5008 (Ont. C.A.).

[17] Abbey sets out a two-step process for determining admissibility. The first step is essentially the Mohan test, with relevance being defined as "logical relevance". In determining necessity, the court should ask if the evidence is necessary to a proper adjudication of the facts to which that evidence is directed. The person proffering the evidence must show that each pre-condition of the four-part test is met. The court sets out that these should be simple yes or no answers. If the answers to any of the Mohan questions is no, the evidence should be excluded.

[18] The second part of the test deals with the gatekeeper role of the trial judge. The trial judge at this stage should engage in a thorough case-specific cost-benefit analysis, addressing issues such as the probative value of the evidence and the cost and delay in admitting such evidence.

[19] The party attempting to introduce the expert evidence must establish each of the Mohan factors on a balance of probabilities. R. v. Terceira, (1990) 3 S.C.R. 866.

[20] Subrule 23(23) of the rules reads as follows:

EXPERT WITNESS REPORTS

23(23) A party who wants to call an expert witness at trial shall serve on all other parties a report signed by the expert and containing the information listed in subrule (25),

(a) at least 90 days before the start of the trial; or

(b) in the case of a child protection case, at least 30 days before the start of the trial. O. Reg. 6/10, s. 8(4).

[21] Subrule 23(27) of the rules reads as follows:

FAILURE TO SERVE EXPERT WITNESS REPORT

23(27) A party who has not followed a requirement under subrule (23), (24) or (26) to serve and file an expert witness report, may not call the expert witness unless the trial judge allows otherwise.

Part Four – Analysis

4.1 Relevance and Necessity

[22] I find that Dr. Wittenberg's evidence is not relevant or necessary as defined in the case law.

[23] The proposed evidence of Dr. Wittenberg would have very limited value to the court, if admitted. He has never met the parties. He has never met the child. He conceded that he can only discuss the impact of substance abuse on parenting in a general sense – he is unable to assess how these parents' use of alcohol would affect their parenting of this child. He admitted that he cannot say whether the child has suffered any trauma because of the parents' use of alcohol. He was not asked to conduct an attachment assessment, which might have been helpful. He testified, "I can't comment directly on this case, I don't know enough about it".

[24] The value of Dr. Wittenberg's evidence is further limited by the fact that the parents did not participate in any way in the formulation of his evidence. The mother's counsel was not involved in the questions or the information to be put to Dr. Wittenberg. He only received information and documentation from the society.

[25] Dr. Wittenberg's evidence is also not necessary. It is not necessary to appreciate the technicalities of a matter in issue. Counsel for the mother conceded (and I agree with him) that the court is quite capable of drawing inferences from the evidence (if the trial evidence supports making these inferences) that would be consistent with many of the conclusions that the society seeks to obtain from Dr. Wittenberg, including:

a) That if a parent is intoxicated while in a care-giving role, this will likely be frightening and pose a significant risk to a young child.

b) If a caregiver isn't emotionally available to a young child due to being intoxicated, this will likely have an adverse effect on the child's development, emotional welfare and sense of stability.

c) If a young child is exposed to excessive domestic conflict and violence (whether due to substance abuse or otherwise) it will likely be frightening and confusing for the child, and will likely have an adverse effect on the child's development, emotional welfare and sense of stability.

These are inferences that family courts are required to draw daily in family law cases. The nature of this evidence is not outside the experience of the trier of fact. The evidence is not necessary for a proper adjudication of the facts to which that evidence is directed.

4.2 Duly Qualified Expert

[26] I also find that the society did not meet the required onus to qualify Dr. Wittenberg as an expert in the area of expertise tendered.

[27] Dr. Wittenberg is an experienced psychiatrist. He is the head of Infant Psychiatry at the University of Toronto Medical School. He provided the court with an impressive curriculum vitae of 32 pages. However, nowhere in this lengthy document is there any mention of working in the area of addictions or substance abuse, or the impact of addictions and substance abuse on the parenting of children. Dr. Wittenberg has not taught courses, given speeches or written papers in this area. He readily admitted that he is not an expert in addictions. In this case, evidence from an expert in addictions could have been probative.

[28] Dr. Wittenberg did state that he has conducted many parenting capacity assessments and that substance abuse is often an issue with the families that he sees. He would undoubtedly have been qualified as an expert in assessing parenting capacity if he had actually met the parties and the child and conducted a comprehensive assessment of the family. This could have included a consideration of the impact of any substance abuse of these parents on this particular child within the framework of this assessment. However, this was not done here. His background does not qualify him as an expert on the impact of substance abuse on parenting on a stand-alone basis, as requested by the society.

[29] Based on these considerations I would not admit this evidence.

4.3 Probative Value vs. Prejudicial Effect of Admitting the Evidence

[30] In addition, there is the issue of the prejudice of admitting the proposed evidence.

[31] Justice Goudge, in his report, warns against courts taking a casual approach in admitting expert evidence and then just evaluating the weight to attach to it.

[32] In Abbey, supra, the court writes at paragraph 91:

..expert opinion evidence can also compromise the trial process by unduly protracting and complicating proceedings. Unnecessary and excessive resort to expert evidence can also give a distinct advantage to the party with the resources to hire the most and best experts….

[33] There is prejudice to admitting the proposed expert evidence – particularly in this case. The society only gave the parents six days' notice of the proposed evidence. It creates an unfair dilemma for them. They want the child returned as soon as possible. Part of Dr. Wittenberg's proposed evidence is that children of parents with substance abuse issues are subject to higher rates of physical and sexual abuse. If the evidence is admitted, the parents are forced to ask, do we need to respond to this and other evidence?[2] How much emphasis will the judge put on the expert's evidence? Will we lose the case if we don't respond with our own expert? Will this mean an adjournment until the next trial sittings (that won't take place until the fall of 2012)? Will we be prejudiced further by the child remaining in society care for another 4-5 months if the case is adjourned? How will such a delay affect the long-term welfare of our child?

[34] In addressing this dilemma, the parents are also faced with the fact that they have limited financial means to respond to this evidence. The society has deep pockets to pay for a Dr. Wittenberg. How will the parents pay or obtain funding for a responding report? How much longer will this delay the case?

[35] There is certainly prejudice to the child if this case is adjourned to permit the parents the opportunity to respond to Dr. Wittenberg's evidence (and given the short notice, fundamental justice would require granting an adjournment, if requested, to respond). The child has been in care for almost 21 months – well in excess of the statutory timelines in section 70 of the Act. Admitting this evidence at this stage could derail the trial process and delay permanency planning for the child. This is contrary to the best interests of the child.

[36] The court did not receive an acceptable explanation for the delay in providing this evidence. If the society felt it was sufficiently important, they could have arranged to obtain this evidence much earlier this year. It appears that once they decided they wanted to obtain such evidence, Dr. Wittenberg was unavailable to provide the evidence in a timely manner. They waited too long.

[37] The court does have the discretion to lengthen or shorten any time requirement in the rules pursuant to subrule 3(5) of the rules. This discretion must be exercised in consideration of the primary objective of the rules, set out in rule 2 - to deal with cases justly. If the society had been able to establish that the proposed evidence was vital to making the appropriate decision about the protection and best interests of the child and outweighed any prejudice, the short notice of the report would not have precluded its admission. However, the society was unable to show that the proposed evidence met this standard. In the circumstances of this case, it would not be just to shorten the time in subrule 23(23) or to grant permission to call the expert witness pursuant to subrule 23(27) as I find that the probative value of the proposed evidence does not exceed its prejudicial effect.

Part Five – Conclusion

[38] The society's request to introduce the opinion evidence of Dr. Wittenberg is denied.

Date: May 30, 2012

Justice Stanley Sherr

Footnotes

[1] The charges were subsequently withdrawn after the respondents entered into Peace Bonds.

[2] No other evidence has been led that this child is at risk of sexual abuse.