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 subsections 45(8) of the Act. This subsection and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply with subsection 45(8), read as follows:

45.— (8) 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.

85.— (3) A person who contravenes subsection 45(8) (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 File and Parties

Court File No.: 155/11 Date: 2012-06-26 Location: Sault Ste. Marie

Ontario Court of Justice

In the Matter of the Child and Family Services Act, R.S.O. 1990, c. C.11

Between:

Children's Aid Society of Algoma Anthony Marrato, for the Children's Aid Society

— And —

M.L. Heather-Ann Mendes, for M.L. (mother)

C.D.B. Heather-Ann Mendes, for C.D.B. (father)

Heard: May 17, 2012

Before: Kukurin J.

Decision

[1] I made an order dismissing the motion of the applicant society for Reasons to follow. These are those Reasons.

[2] This is a decision on the motion (at Tab 3) brought by the applicant society in this child protection case involving three young boys: C. (5), D. (1) and E. (1). The claim in the motion is for an order pursuant to section 54(1) of the Child and Family Services Act (the Act) for a psychosexual assessment of the respondent father in this case, to be conducted by Dr. Robert Saltstone, a psychologist.

[3] The society is seeking a finding in this case under section 37(2)(d) of the Act, that all three children are in need of protection on account of a risk of sexual harm at the hands of their father. If they are found to be in need of protection, the claim of the society is that they remain in the care and custody of their mother and father, but subject to a six month supervision order in favour of the society, and also subject to a number of terms and conditions. Two of these conditions are firstly, that the father will be supervised by the mother, or by maternal extended family members at all times when he is in the presence of the children. A second condition is that the father is to participate in a psychosexual assessment. The father opposes this motion. He declines to participate in a psychosexual assessment.

Background

[4] The basis for an allegation that the father is a source of sexual harm is the society's belief that he has sexually abused two girls, sisters of each other, approximately ten or more years ago. These girls are the daughters, from another relationship, of a woman with whom he was cohabiting at the time. This was in 2001-2002. Disclosures by these two girls were made only in 2011 when they were ages 15 or 16. In the intervening decade, the father had established his relationship with his present partner, had a child, C., with her five years ago, and has had twin boys just over a year ago. The recent disclosures resulted in police and society investigations. No charges have been laid against the father following this investigation, and none will be. The society requested that the father undergo a psychosexual assessment with a phallometric testing component voluntarily. He considered doing so but ultimately, on advice of his counsel, he declined. He has denied the allegations of sexual abuse. There are no allegations that he has been involved in any other sexual misconduct. Nor is there any allegation that he was ever found guilty of any sexual offence.

The Law

[5] Section 54 of the Child and Family Services Act has the informal title "Order for Assessment". This is the statutory provision in the Act that provides for orders that require persons to undergo assessments of different types.

(a) Regulatory

[6] However, the provisions of section 54 are not the only provisions that govern assessment orders under the Act. Cleverly included as subsection 54(1.4) in the Act is a provision that requires assessment orders and assessments performed under such orders to

".... comply with such requirements as may be prescribed."

While the average person on the street may have no idea where these requirements may be found, or who would prescribe them, those trained in the law, and having developed a fluency in legalese and political speak, would realize that section 54(1.4) is referring to a regulation.

[7] Sure enough, there is such a regulation known by the rather unimaginative name of O. Reg. 25/07. This regulation came into being in 2007, shortly after section 54 of the Act was amended to include subsection (1.4). Accordingly, assessments, and orders for assessments in child protection cases are governed not only by the provisions in the statute, but also by the provisions of this regulation. In theory, the provisions of the regulation should complement the provisions of the statute. In the unlikely event that there arises some conflict between the provisions of the statute and those in the regulation, those in the statute must prevail.

[8] Although it is needless to say, there is little harm in saying that the onus of satisfying the court that the statutory and regulatory pre-requisites for the making of an assessment order lies on the person seeking the order. In the present case, that onus falls on the society.

[9] To be doubly trite, it should be noted that parties satisfy courts with evidence, preferably the kind that is sworn and admissible.

[10] The language and tone of section 54 and of O. Reg. 25/07 are not mandatory. Neither requires the court to make the assessment order sought, even if it is satisfied that the statutory and regulatory prerequisites have been satisfied by the motion applicant. The words "... the court may order ..." clearly give the court a discretion as to whether it will make the order or not. In either case, it should give reasons explaining why its discretion was exercised in the way that it was.

[11] O. Reg. 25/07 is relatively recent. Section 54 of the Act is also fairly recent in the wording of its current provisions. The previous wording of section 54 was changed quite substantially by the amendments in 2006. The former subsection 54(1) did not permit a court to make an order for an assessment until "a child has been found to be in need of protection".

[12] Although this wording is not carried forward to the present version of section 54, uncannily similar wording has found its way into O. Reg. 25/07. However, this precondition is no longer standing alone. There are three such pre-requisites, all phrased disjunctively. This means that the existence of any one of these will suffice.

[13] This calls for a closer examination of what these two other preconditions are. One of these is satisfied if all parties to the proceeding consent to the order (for an assessment) being made. It seems to me that if all parties are consenting to an order for an assessment, the order is rendered somewhat superfluous. The parties can get their assessment done without the court ordering someone to undergo the assessment. On the other hand, perhaps the parties want to impress their consensual assessment with the section 54 brand, and its judicial imprimatur, as well as with certain statutory consequences.

[14] The other alternative precondition has three components, and they are all conjunctive:

• the court has received evidence;
• the court has held a temporary care and custody hearing;
• the court has made an order under section 51(2) of the Act.

[15] While these are ostensibly simple, straightforward and factual, and should be able to be determined quite readily, all three raises questions in the minds of those who find themselves in the practical world of child protection litigation in this province.

[16] First of all is the question of what is a "temporary care and custody hearing". This terminology does not come from the statute. The statute uses the words "a temporary order for care and custody". These are found prominently in section 52 of the Act, and are invariably used in the context of an adjournment of a hearing to determine whether a child is in need of protection.

[17] Unfortunately, the wording of section 51 is such that the court is required to make a "temporary order for care and custody" each and every time that a "hearing" under section 47 is adjourned. This applies each time that the proceeding is before the court, even if the order made is identical to the order that was made at the next previous court appearance.

[18] At the first court appearance (which, in those cases were a child is apprehended, must be not more than five days from date of apprehension), the court generally makes a temporary care and custody order that is qualified as being "without prejudice" or as being "interim-interim". Regardless of which qualifier is used, the order made is an order made under subsection 51(2) of the Act. Moreover, such an order cannot be made without a hearing, even if the only evidence is that filed by the society. Courts cannot make orders unless there is some evidentiary basis for making them. What kind of a hearing is held that results in a temporary care and custody order under subsection 51(2) of the Act? Clearly, it must be a "temporary care and custody hearing". Moreover, whatever the evidence that the court acts on to make such an order, whether it is an order qualified in some way or not, at the first, second, third or subsequent appearances, it must have received that evidence from someone.

[19] The net result of this interpretation of what is meant by section 3(1)(a) O. Reg. 25/07 is that the court does not have to wait until a child is found to be in need of protection. In virtually every child protection case, insofar as timing is concerned, the court can make an order requiring a person to undergo an assessment from the very first day that the case comes before the court. Is this what was contemplated by whatever minds came up with section 3(1)(a) of O. Reg. 25/07?

[20] There is another way of interpreting the words "a temporary care and custody hearing". This would simply ignore all of these qualified orders made at these preliminary court attendances, and would consider the real temporary care and custody hearing to be that at which an order under section 51(2) is made without qualifications attached to it. That is, the order after such a hearing would no longer be "without prejudice" or "interim-interim". The expectation is that, at this real temporary care and custody hearing, there would be affidavit evidence filed by both (or all) sides, there would be argument, and the decision and order would be made on the merits. Alternatively, the parties might simply consent to the terms of a temporary care and custody order at this real hearing. Or, in an alternative alternative, a respondent would be a "no show" and the order made in his or her absence.

[21] There is something to be said for this interpretation of what a temporary care and custody hearing is, and when it is held. An examination of rule 33 of the Family Law Rules, which are really another regulation (O. Reg. 114/99), clearly identifies this entire rule as one that applies to child protection. Rule 33 does refer to a "temporary care and custody hearing" in subrule 33(1) as well as in subrule 33(6).

[22] Although most of the universe concedes that the timelines in Rule 33 are rarely observed (when there is any contest whatsoever), the fact that a maximum prescribed of 35 days from the start of case to completion of a temporary care and custody hearing suggests that the subsection 3(1)(a) O. Reg. 25/07 hearing is not one held within five days of apprehension. The expectation that evidence at the temporary care and custody hearing is to be by affidavit carries the implication that the respondents will have sufficient time before such a hearing is held, to make an application for legal aid, to have the application processed, to retain a lawyer, to consult with the lawyer, to review the society's evidence, to have their lawyer prepare their responding affidavit evidence, to re-attend to swear their affidavits, to have their lawyer attend to serving, then filing, their respective evidence, all of which is to be done before 2 p.m. two days prior to the hearing.

[23] So what does O. Reg. 25/07 really refer to in its subsection 3(1)(a)? Does evidence received by the court also include evidence in response to the society's evidence? Does it mean that the hearing that is held on the second, third, or in some cases, subsequent court date for the case? Does the order under subsection 51(2) mean one that has no qualifications attached? This view of what subsection 3(1)(a) of the O. Reg. 25/07 means makes much more sense (and much less nonsense).

[24] To recapitulate, the regulation permits the court to make an order under section 54 of the statute for an assessment when any one of the three contingencies is shown to have materialized. However, section 3 of O. Reg. 25/07 really only deals with when a section 54 order can be made.

[25] There are actually criteria, now specified, (regrettably in the regulation rather than in the statute) that provide guidance to the court, as well as to child protection litigants, as to the circumstances in which the court may exercise its discretion to order a person to undergo an assessment.

[26] These are found in section 2 of O. Reg. 25/07. There are two criteria specified. Two things are noteworthy. The first is that these are stated to be conjunctive. The second is that, even if present, they do not require the court to make an assessment order. The court continues to have a discretion to do so, or to decline to do so.

[27] The first criterion in section 2 of the regulation is the satisfaction of the court that the assessment sought is "necessary" for the court to make "a determination" under Part III of the Act. This is not so simple a guidepost as it appears superficially. There are many determinations that a court is required to make pursuant to Part III of the Act. Among the most notable and the most frequent are determinations of:

• whether a child is in need of protection;
• why a child is in need of protection;
• whether reasonable grounds exist to believe that there is a risk that a child is likely to suffer harm if returned to, or allowed to remain with, the child's caregiver;
• whether a child can be adequately protected by an interim supervision order;
• whether the child can be placed with kin;
• whether a protection order is necessary, and if so, which one;
• whether an access order should be made in favour of anyone, and if so, with what terms.

[28] The phrasing of this first criterion in section 2 of O. Reg. 25/07 does not identify which judicial determination it is referring to. A determination could be any determination at any stage of the case. This may well be the intent of O. Reg. 25/07. If so, it seems to me to be overly inclusive and unspecific. I would expect that the evidence, or at least the argument of the motion application in a section 54 motion would identify for which judicial determination or determinations in the case the assessment would be necessary.

[29] By far the more problematic aspect of this section 2 criterion is the word "necessary". This word cannot be considered in a vacuum. The exact phrase in which it is found in section 2 is:

"... [an assessment] ... is necessary for the court to make a determination ..."

It should be very clear that necessity for having the assessment done is that of the court, not that of any of the parties, nor of the child, nor of any counsel. Moreover, that necessity is for a specific and specified purpose, namely, to make one or more of the many judicial determinations that judges are called upon to make in a child protection case.

[30] Section 2 of O. Reg. 25/07 doesn't simply make the court's need for assessment one of the criteria for ordering such assessment. The actual criterion is "if the court is satisfied" of that necessity. This wording implies that someone has the job of convincing the court of that necessity. In other words, there is an onus here that falls on one of the parties. That would be on the party seeking the order for the assessment.

[31] The word "necessary" and its close cousin "required" appear to be among the favourite adjectives of legal draftsmen. However, there does not appear to be any definition of the word "necessary" in any statute or regulation, certainly not in the Child and Family Services Act or in O. Reg. 25/07. Accordingly, it seems logical that a dictionary or a Thesaurus definition might provide some assistance in deciding what "necessary" means. In fact, this was an exercise that was engaged in by me in another proceeding with the ultimate result that my decision was overturned, and my perception of the meaning of the word "necessary" was corrected. What "necessary" actually means appears to be somewhat flexible, variable depending on the context, and having shades of meaning.

[32] The second criterion in section 2 of O. Reg. 25/07 is that the evidence sought from an assessment is not otherwise available to the court.

[33] In order to determine if this second criterion is satisfied, the court has to know what "evidence" is being sought from the assessment that is being sought.

[34] The word "evidence" in section 2(b) O. Reg. 25/07 is not accidental. Those who drafted this regulation might easily have used the words "information" or "opinion of the assessor" instead of "evidence". However, the word "evidence" is the appropriate word because, by virtue of subsection 54(6) of the Act, the report of the assessment is "evidence" and is part of the court record in the case. Accordingly, aside from any other purposes that a section 54 assessment order may have, creation of evidence is clearly one, and arguably an important one.

[35] What evidence is being sought from the assessment that is being sought was, until the coming into force of O. Reg. 25/07 something to be inferred from the type of assessment, the facts of the case disclosed by the evidence, and the identification of the protection issue in the case. O. Reg. 25/07 created a focus by requiring the court to include in any section 54 order, the specific questions that are to be addressed by the assessor as well as the questions for which a specific recommendation (if any) is required by the court. In addition, the court may include other things to be assessed.

[36] The questions that the society proposes to be included in the section 54 order that it is asking the court to make are set out in its affidavit at Tab 7. These eliminate much of the vagueness, uncertainty, or lack of specificity in the nature of the evidence sought from a section 54 assessment. This is not to say that whatever questions the society proposes are the questions that are automatically included in the terms of any order made. In fact, those that are to be included should be scrutinized to ensure that they are proper questions to be submitted to the proposed assessor. Normally, there is an expectation that the respondents would contest the inclusion and/or the wording of any questions they might consider inappropriate. However, this is arguably a function of the court, as well, in its role as a gatekeeper of the evidence, particularly where everything in the assessment report that is generated by its order is not only evidence, but is statutorily admissible as evidence.

(b) Statutory

[37] Enough on regulatory law. There is still statutory law to consider. Section 54 includes some limitations, pre-requisites, and procedural requirements that must also be complied with before an order can be made under this section of the Act.

[38] The "psychosexual" assessment is not anywhere mentioned in section 54. It is not mentioned in dictionaries. It is, however, found on the internet. From the evidence of the society, it appears that the psychosexual assessment it is seeking has two testing components: a psychological testing and a phallometric testing. Phallometric testing employs plethysmography to measure physiological changes in the male penis as different visual stimuli with sexual content are shown to the subject. I can think of no one who could argue that this is not a very invasive procedure.

[39] Section 54, in its present form, has a rather strange procedure. It requires that an order that a person undergo an assessment must specify a time within which the parties in the case may select a person to perform the assessment and submit that person's name to the court.

[40] So long as the court is satisfied that such person has consented to perform the assessment, and that the person is qualified to perform one or more of half a dozen specified kinds of assessments, it must appoint such person as the assessor. If the court is of the opinion that the person selected by the parties does not meet these two criteria, then the court is required to select someone else who does meet these criteria.

[41] This rather odd procedure seems to contemplate two orders being made, one ordering a person to undergo the assessment, and the other appointing the assessor. This statute fails to address the situation where the parties do not all agree on the person to be selected. It permits the court to appoint someone of its choosing, but only where it is of the opinion that a person selected by all parties does not meet both criteria in section 54(1.2). It does not permit this judicial selection where there is either disagreement, or lack of agreement amongst the parties on the identity of the assessor.

[42] Not mentioned in the arguments of any counsel was any reference to the Canadian Charter of Rights and Freedoms (the Charter), in particular, section 7 and section 8. Psychosexual assessments seem rife with issues relating to rights to security of the person, to security against an unreasonable search and seizure, and to issues of admission of evidence.

Analysis

[43] Subsection 3(1) of O. Reg. 25/07 sets out three circumstances, in any one of which a court may order an assessment under section 54 of the statute. There is no consent from all parties in this case. No finding has been made that any of the children in this case is in need of protection. While an order under section 51(2) of the Act has been made, I am of the view that no temporary care and custody hearing has been held. Accordingly, none of the three preconditions exist to permit the court to make the order sought. At the very least, the motion of the society is premature.

[44] Subsection 3(2)(b) of O. Reg. 25/07 is one of the two criteria of which the court must be satisfied before it can make an assessment order. The society must satisfy the court with its evidence that this criterion is met in this case. Simply stating that the evidence sought from an assessment is not otherwise available to the court is not a sufficient argument. While it is always more difficult to prove a negative, even on the balance of probabilities, this is what this subsection of this regulation requires the society to do. Even before dealing with the availability of evidence elsewhere, there is the preliminary determination of what evidence is sought from the assessment for which the motion has been brought. What that evidence is should be identified in the evidence in support of the motion. In this case, the evidence was very minimal in the society's supporting affidavit. It included:

• Tab 5 paragraph 20 – to determine the risk, if any, to his [the father's] children;
• Tab 5 paragraph 34 – to provide the society with information to make long term safety plans;
• Tab 5 paragraph 35 – to allow the society ... to make an informed decision regarding the next step ...
• Tab 5 paragraph 36 – for the results of the assessment to be returned to the society and for a safety plan to be devised on the real risk to his children.

This "evidence" seems to be what the society wants to assist itself in this case.

[45] The list of questions proposed by the society to put to the assessor is contained in the (reply) evidence of the society. These questions are much more pointed and pertinent to the evidence that the society, at least, is seeking from the assessment.

[46] My conclusion from all of the evidence of the society is that the society wants from the proposed assessor, Dr. Saltstone, an expert opinion of whether the father is a source of a risk of sexual harm to his three children. And it wants this in the form of expert opinion evidence. There are secondary things that the society also seeks such as the assessor's recommendations, particularly in terms of services and programs that might reduce the risk, if such a risk is found by the assessor to exist.

[47] If this is the evidence that is sought from the assessment, what this court needs is sufficient evidence in the motion to conclude that Dr. Saltstone, the proposed assessor, can deliver on these expectations. I am not prepared to assume that he can answer these questions, or that he is an expert in the field in which psychosexual assessments are normally done. For the society's affidavit to state that "the society has been advised that he [Dr. Saltstone] has completed such assessments in many other child protection cases and he is qualified as an expert based on his training and experience" is rather weak evidence. This does not identify by name the source of this information as it should pursuant to Rule 14(19)(a). Who specifically at the society has been advised is not disclosed. Even if such statement was to be admissible, which I don't believe it is, it fails to provide such basic details such as:

• how many of Dr. Saltstone's child protection proceeding psychosexual assessments have been ordered under section 54 CFSA;
• how many does "many others" mean;
• what is his track record in terms of outcomes;
• what training does he have in psychosexual assessments;
• who qualifies persons like Dr. Saltstone as an expert and where is this indicated in his curriculum vitae;
• if his acceptance as an expert is meant to have been a judicial acceptance, in how many cases was he accepted, and in how many was he not.

[48] In addition to concerns about what questions Dr. Saltstone may or may not be able to answer, there is a judicial concern as to whether his response to the main question for which the assessment is sought, namely, is the father a source of risk of sexual harm to his three children, is one which it is the function of the court to decide. In such cases, the court should exercise considerably more caution than normal in its decision whether to order the assessment as well as in how it deals with the evidence produced by the assessment, especially recommendations. In the present case, this is the pivotal issue to be decided. This is the decision that will determine whether a finding is or is not made. The society's case is built on this single ground – risk of sexual harm.

[49] Finally, in terms of subsection 2(b) O. Reg. 25/07, it would be unwise to read this criterion with undue emphasis on whether evidence is unavailable elsewhere. The more important part of this criterion has to do with what the evidence will be that may be generated by the psychosexual assessment sought to be ordered.

[50] The respondents have submitted some judicial authorities that have considered the nature of opinion evidence of assessments which had phallometric testing components. In S.R.-T. Baldock J. was faced with a set of circumstances not too dissimilar from those in this case. There had been dated sexual abuse allegations by a child. The alleged perpetrator denied these allegations. No criminal charges were ever laid. The phallometric testing was, however, undergone voluntarily. Two psychologists testified at trial, Dr. Langevin did two tests, the first inconclusive, and the second revealing that the person assessed was a pedophile. Dr. Barbaree, described as "an acknowledged expert in the field of psychological testing and has written extensively on the limitations of phallometric testing ..." asserted that phallometry is not widely accepted or in common use for the purpose of evaluating an individual who has not been convicted of, or admitted to, a sexual crime. He was of the view that this method of testing is not a reliable tool in assessing whether an individual poses a risk of child sexual abuse. The court accepted and preferred the opinion of Dr. Barbaree over that of Dr. Langevin stating [at paragraph 54]:

Having regard to the opinions of both Dr. Langevin and Dr. Barbaree, I accept that phallometric testing is useful in the treatment of known (admitted or convicted) sex offenders but find it to be unhelpful as a diagnostic tool or as an indicator of the risk of acting upon any deviant sexual preferences. Mr. Se. O. Has neither admitted any paedophiliac inclinations, nor has he ever been charged, let alone convicted of a sexual offence. He has no history of any inappropriate relationships with children, notwithstanding the opportunities that have presented themselves. With respect to phallometric testing, I give greater weight to the opinion of Dr. Barbaree as to its poor degree of reliability in diagnosing paedophilia or quantifying the risk of sexual harm.

[51] The S.R.-T. decision by no means stands alone in its questioning of the judicial utility of risk assessments based on phallometry. L.J.M. v. K.A.M., a decision of the Nova Scotia Supreme Court explored the uses of plethysomography (phallometric testing) as a therapeutic tool and as a forensic tool. It accepted the former and rejected the latter. In doing so, it relied on a decision from the Supreme Court of Canada which upheld a trial judge's decision to reject this type of evidence for forensic purposes.

Novel or evolving science requires that the trial judge pay special attention to the gate-keeper function. In the present case the proffered expert evidence was extremely novel. While the penile plethysmograph test is a useful therapeutic tool in the rehabilitation of sex offenders and other persons who suffer from sexual disorders, it had not previously been accepted in Canada as a diagnostic or forensic tool in the manner suggested by the psychiatrist who testified upon voir dire. The evidence required particular scrutiny, as were it accepted by the trier of fact that the offences charged were likely committed by a member of a distinct group from which the accused was excluded, that would amount in effect to psychiatric evidence of innocence. Expert social science going to the ultimate issue between parties must be admitted with caution.

[52] In the present case, the purpose for which the evidence for the assessment is sought is clearly forensic. It is concerned primarily with the prediction of risk and quantification of that risk. Any therapeutic purpose is clearly secondary in importance and contingent on a finding that the children are in need of protection from risk of sexual harm.

[53] Although there is no expert evidence before me to question the validity or utility of phallometry as a diagnostic tool, neither is there any evidence to support it as such. Existing jurisprudence where such issues arose and were dealt with judicially are of some assistance to this court in deciding a motion under subsection 54(1).

[54] Would the evidence from the assessment be otherwise available? Probably not the same kind of evidence. But if such evidence had limited utility, why order a procedure that would produce it?

[55] I have previously ruled that a psychosexual assessment falls within the psychological field. Based on the curriculum vitae of Dr. Saltstone produced by the society, I am satisfied that he is qualified to perform psychological assessments. However, a psychosexual assessment is not the equivalent of psychological assessment. There is a psychological assessment component to the psychosexual assessment that the society is asking this court to order. But it is asking for more than the psychological component. I am not satisfied that the additional part is something that I should order.

[56] Not to be minimized is the decision of the court as to whether the proposed assessor is qualified. The terminology of subsection 54(1.2) is somewhat ambiguous, certainly loose. I do not interpret this to mean that so long as the proposed assessor is qualified to do any one of the kinds of assessments mentioned in this subsection, the court can order a person to undergo any kind of assessment. The assessment ordered must be in the field in which the person is qualified to do assessments.

[57] Dr. Saltstone wears many hats in his professional life. He professes to be an associate in a psychological consulting practice and states that he conducts psychological and educational assessments in that capacity. Included in these assessments are those of interest in the motion before this court, namely:

"forensic (including sex offender sexual preference – phallometric) assessments".

[58] There is no indication of Dr. Saltstone's academic education, training or experience that specifically qualifies him to perform these particular kinds of assessments. His professional publications, while quite impressive, do not seem to be in this area. The two references in his curriculum vitae both involve the words "sex offender". While phallometric testing is apparently a tool with some utility in dealing with a convicted or admitted sex offenders, particularly in treatment or for therapeutic purposes, the father in this case is neither a convicted nor an admitted sex offender. I would need considerably more evidence on this present motion before I would be satisfied that a psychosexual assessment of the father by the society's proposed assessor in this case would yield evidence of any utility.

[59] In summary, I am exercising my discretion to refuse to order the father to undergo the assessment sought by the society. In addition to the prematurity of the motion, the inadequacy of the society's evidence in satisfying the criteria which are the regulatory prerequisites for making such an order, I remain unsatisfied as to whether the proposed assessor is qualified to perform the kind of assessment sought, and what utility the assessment results would have in a forensic context. The assessment would involve a very intrusive test with a subject who is resistant, non-admitting to any sexual misconduct, and not even charged, much less convicted, of any sexual offence. The evidence which I infer is being sought goes to the heart of the main issue in the case, an issue that is the exclusive province of the court to decide. I cannot conclude that the "evidence" anticipated from the kind of assessment sought is necessary for the court to make any of the many determinations it must make should the case proceed to trial.

[60] As a final matter, I note that the risk of sexual harm is a concern based on allegations of two children, of events that allegedly took place over a decade ago. One of these children does not wish to discuss, much less testify, about such events. The evidence presented is completely hearsay and, in one paragraph, is presented to the court through a chain of six persons. There is considerable confusion as to what took place, when it took place, and who was present when it took place. A section 54 order in this case would be more appropriate to make if and when a finding in need of protection is made.

Released: June 26, 2012

Justice John Kukurin, Ontario Court of Justice