WARNING

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

This is a case under Part V of the Child, Youth and Family Services Act, 2017 (being Schedule 1 to the Supporting Children, Youth and Families Act, 2017, S.O. 2017, c. 14), and is subject to subsections 87(7), 87(8) and 87(9) of the Act. These subsections and subsection 142(3) of the Act, which deals with the consequences of failure to comply, read as follows:

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

Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, 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, the court may make an order:

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

87.— (8) Prohibition re 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.

87.— (9) Prohibition re identifying person charged.

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.

142.— (3) Offences re publication.

A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(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

Ontario Court of Justice

Date: 2018-12-06

Court File No.: Halton 196/16

Between:

The Children's Aid Society, Region of Halton, Applicant

— AND —

J.B. (Mother) and D.T. (Father), Respondents

Before: Justice Penny Jones

Heard on: October 4, 5, 2018 and November 7, 9, 19, 2018

Reasons for Ruling on Admissibility of Parenting Capacity Assessment Report released on: December 6, 2018

Counsel

Lucia Spampinato — counsel for the applicant society

Novalea Jarvis — counsel for the respondent

D.T. — on his own behalf

JONES J.:

Introduction

[1] On November 2, 2016, with the consent of the parties, Justice Victoria Starr made a section 54 order under the Child and Family Services Act (R.S.O. 1990, c. C.11, as am.) (now a section 98 order under the Child, Youth and Family Services Act, 2017 (S.O. 2017, Chapter 14 Schedule 1)) that the parents and children undergo a parenting capacity assessment to be conducted by Dr. Walton-Allen. The relevant provisions of section 98 relating to the selection of the assessor, the role of the judge, and the special evidentiary treatment of the report once completed, read as follows:

98. Order for assessment

(1) In the course of a proceeding under this Part, the court may order that one or more of the following persons undergo an assessment within a specified time by a person appointed in accordance with subsections (3) and (4):

• The child.
• A parent of the child.
• Any other person, other than a foster parent, who is putting forward or would participate in a plan for the care and custody of or access to the child.

(2) Criteria for ordering assessment

An assessment may be ordered if the court is satisfied that:

(a) an assessment of one or more of the persons specified in subsection (1) is necessary for the court to make a determination under this Part; and

(b) the evidence sought for the assessment is not otherwise available to the court.

(4) Assessor selected by parties

The court shall appoint the person selected by the parties to perform the assessment if the court is satisfied that the person meets the following criteria:

1. The person is qualified to perform medical, emotional, developmental, psychological, educational or social assessments.
2. The person has consented to perform the assessment.

(5) Appointment of a person not selected by parties

If the court is of the opinion that the person selected by the parties under subsection (3) does not meet the criteria set out in subsection (4), the court shall select and appoint another person who does meet the criteria.

(6) ASSESSMENT IS EVIDENCE

The report of an assessment ordered under section (1) is evidence and is part of the court record of the proceeding.

[2] Given the recommendations in the parenting capacity assessment that supported the Society's request for extended care for all five children, including the two youngest children, the mother required the assessor be produced for cross-examination. Prior to her giving evidence, counsel for the mother indicated to the court that she questioned the qualifications of the assessor to provide opinion evidence on the issues before the court, notwithstanding the fact that Dr. Walton-Allen had been appointed by court order to perform the assessment under section 54, now section 98, and that the mother and her former counsel had consented to her appointment.

[3] Counsel for the mother seeks to have Dr. Walton-Allen's report stricken from the record on the basis that Dr. Walton-Allen intentionally misrepresented her qualifications at the time she was selected by the parties and by the court to perform the assessment. Counsel alleges that Dr. Walton-Allen is not a "clinical psychologist" as she had indicated in her original Curriculum Vitae (she has subsequently filed a corrected Curriculum Vitae), but is in fact a "school psychologist", and as such, is not qualified to assess the very complicated mental health and social issues evident in this case. Given the nature and complexity of the issues involved, the mother maintains that Dr. Walton-Allen, as a school psychologist, was practicing outside her area of competence when she prepared the report. As well, the mother argues that Dr. Walton-Allen was biased and unprofessional in the methodology she adopted when she prepared the report. Further, the mother contends that Dr. Walton-Allen did not possess the forensic skills necessary to competently complete this court ordered assessment. For all these reasons, she takes the position that the assessment report should be stricken from the record, and that Dr. Walton-Allen should be disqualified to provide opinion evidence on the issues outlined in the section 54, now the section 98 order for assessment.

[4] The Children's Aid Society, Region of Halton (the Society) is supporting the admission of the report and seeks to have Dr. Walton-Allen qualified as a "registered psychologist with expertise in parenting capacity assessments, psychological assessment, and child development" for purposes of providing expert opinion evidence to the court.

[5] The father attended court on the first day of trial and advised the court that he did not intend to participate at the trial. He said that he left the decision to "God and the court". Since that date, the trial has proceeded without any involvement from the father.

[6] This assessment order was made in the context of a child protection application in which no finding in need of protection had been made. The order for an assessment concerned the Respondents' five children who were then in the temporary care of the Society. Since the making of the assessment order, and on the day before the trial was scheduled to commence, the parties consented, as did the Children's Lawyers for the oldest children, to extended care orders with access, relating to the Respondents' three oldest children, namely, J.B.B. born […], 2002, J.N.B. born […], 2005, and J.R.B. born […], 2009 leaving the two youngest children to be the subject of the trial before me, namely J.D.B. born […], 2012 and J.B.B. born […], 2015.

[7] The assessment order set out 16 questions to be answered by the assessor. The questions to be answered were as follows:

(a) Does the mother have any cognitive, psychiatric, psychological, or mental health issues which may affect the mother's ability to parent the children or affect the safety of the children while they are in her care? Is the mother's current treatment of her mental health and parenting issues comprehensive enough to address parenting limitations of the mother? If not, what are the assessor's recommendations to address the limitations?

(b) Does the father have cognitive, psychiatric, psychological, or mental health issues which may affect the father's ability to parent the children or affect the safety of the children while they are in his care?

(c) Given the child welfare history, does the mother have the insight and capacity to parent the children and meet the individual physical, emotional and developmental needs of each child?

(d) Given the child welfare history, does the father have the insight and capacity to parent the children and meet the individual physical emotional and developmental needs of each child?

(e) Does either parent have any physical health conditions that impairs or negatively impacts their ability to parent?

(f) What are the parenting capabilities of the mother, including those attributes, skills and abilities most relevant to the child protection concerns?

(g) What are the parenting capabilities of the father, including those attributes skills and abilities most relevant to the child protection concerns?

(h) What are the developmental needs of each child, including any vulnerabilities or special needs?

(i) Does J.R.B. meet the criteria for a diagnosis of Autism Spectrum Disorder? If so, what services are recommended for J.R.B.?

(j) Given that J.B.B. (born […], 2002) has already been diagnosed with Autism Spectrum Disorder, what services are recommended to support J.B.B., including his social needs, developmental needs, and academic needs?

(k) What are the current and potential abilities of the mother to meet the needs of each child, including an evaluation of the relationship between each child and the mother?

(l) What are the current and potential abilities of the father to meet the needs of each child, including an evaluation of the relationship between each child and the father?

(m) Is there a need for clinical interventions for observed problems for the mother, the father and/or the children, or any one of the children? If so, what interventions are required?

(n) What is the nature of the children's attachment to the mother and what are the possible effects on the children of the mother being the primary caregiver?

(o) What is the nature of the children's attachment to the father and what are the possible effects on the children of the father being the primary caregiver?

(p) Do either of these parents have the capacity to parent all or some of the children either as a couple residing in the same home or in the event that the parents separate?

[8] The assessment order outlined why it was felt that the assessment was necessary. The order outlined the following reasons:

(a) To assess whether J.R.B. meets the criteria for a diagnosis on the Autism Spectrum;

(b) To provide evidence as to what supports and services could assist the parents to enhance their parenting skills, understand child development, and support the children being safe in their care;

(c) To support permanency planning for the children;

(d) To provide evidence as to what services are recommended for the family, the children, or any one of the children;

(e) To assess the attachment relationship between each parent and each child;

(f) To assess whether either parent has any health condition, including any mental and/or physical condition, which impairs or negatively impacts their ability to parent.

[9] Dr. Walton-Allen prepared a 280+ page assessment report, including appendices. Many of the questions set out above no longer relate to issues that must be decided by me as the parents and the children's situations have changed. For example:

• the father has withdrawn any claim for a return of the children;
• the parents have been living separate and apart since February, 2017 and only the mother is putting forth a plan of care.
• both parents consented to an order that their three oldest children are in need of protection given their special needs (that the children suffer from a mental, emotional or developmental condition that, if not remedied, could seriously impair the children's development under section 74(2)(j) of the Child and Youth Family Services Act) and that they are unavailable or unable to meet those needs.
• both parents have consented to an order of extended care for these children with access. J.B.B. born […], 2002 and J.R.B. born […], 2009 have been placed in separate treatment group homes and J.N.B., born […], 2005, is residing with her two youngest brothers J.D.B. born […], 2012 and J.B.B. born […], 2015 in the same foster home.

LEGAL CONSIDERATIONS

[10] Counsel agreed that the two leading cases which set out the test to be applied at the voir dire stage to decide whether to admit expert opinion evidence are R. v. Mohan, [1994] 2 S.C.R. 9 and White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182.

[11] Justice Forestall in R. v. Millard, 2018 ONSC 4410 succinctly captures the current approach to the admissibility of expert evidence in paragraphs 36 and 37 of that decision. He wrote:

[36] Opinion evidence is presumptively inadmissible and the party seeking to introduce it bears the onus of establishing its admissibility on the balance of probabilities.

[37] Laskin J.A. in R. v. Abbey set out the framework for the determination of the admissibility of expert evidence:

Expert evidence is admissible when:

(1) It meets the threshold requirements of admissibility, which are:

a. The evidence must be logically relevant;

b. The evidence must be necessary to assist the trier of fact;

c. The evidence must not be subject to any other exclusionary rule;

d. The expert must be properly qualified, which includes the requirement that the expert be willing and able to fulfil the expert's duty to the court to provide evidence that is:

i. Impartial,

ii. Independent, and

iii. Unbiased.

e. For opinions based on novel or contested science or science used for a novel purpose the underlying science must be reliable for that purpose.

and

(2) The trial judge, in a gatekeeper role, determines that the benefits of admitting the evidence outweigh its potential risks, considering such factors as:

a. Legal relevance,

b. Necessity,

c. Reliability, and

d. Absence of bias.

[12] Given the real risk that a miscarriage of justice will arise from the too-ready admission of unreliable expert opinion evidence into the trial record for consideration by the triers of fact (examples of which are documented in the Goudge and Motherisk reports), trial judges, as gatekeepers, have been directed to actively scrutinize the credentials of the expert and the nature of the opinion evidence sought to be adduced at the front end by way of a voir dire. The purpose of doing so is clear—it is to weed out unreliable opinion evidence that would offer little benefit to the trial process given its unreliability, and might distort and prejudice the fact-finding process. See R. v. Abbey, 2017 ONCA 640.

[13] The danger of admitting unreliable expert opinion evidence has not been restricted only to situations where a jury is involved. Judges sitting alone on criminal cases and in civil matters have recognized the importance of keeping out unreliable opinion evidence rather than allowing it in and letting all of the frailties of the evidence go to weight and not to admissibility. See Brandiferri v. Wawanesa Mutual Insurance, et al, 2011 ONSC 3200 paragraph 31 where Lauwers, J wrote:

[31] Trial judges are expected to play a fortified gatekeeper role, and not just in criminal cases or just in cases with a jury. Judges are increasingly aware that for them too, the bell cannot be easily unrung. It is better that inadmissible evidence is simply not heard. As the Ontario Court of Appeal stated in R. v. Abbey (2009), 2009 ONCA 624, 97 O.R. (3d) 330, [2009] O.R. No. 3534 at para. 76, leave to appeal dismissed [2010] S.C.C.A. No. 125: "The 'gatekeeper' component of the admissibility inquiry lies at the heart of the present evidentiary regime governing the admissibility of expert opinion evidence."

[14] In this case, Justice Starr made an order for a parenting capacity assessment under section 54 of the Child and Family Services Act. She appointed the assessor on the joint recommendation of the parties and upon reviewing the Curriculum Vitae of Dr. Walton-Allen appended to the notice of motion; she appointed Dr. Walton-Allen because she was satisfied that the assessor recommended by the parties was qualified to perform the assessment. In due course, the parenting capacity assessment was prepared and filed and became part of the trial record in accordance with the terms of the statute.

[15] When it came to the attention of mother's counsel that Dr. Walton-Allen was not a registered clinical psychologist, but rather was a registered school psychologist, she brought an urgent motion to have the parenting capacity assessment struck from the record. I ruled that the matter should be decided in the context of a contested voir dire on the witness's qualifications to give expert opinion evidence on the questions outlined in the parenting capacity assessment order. On the facts of this case, it was clear that a contested voir dire should be held given the apparent discrepancy between the qualifications outlined in the original and replacement Curriculum Vitae.

[16] Even if this had not been the case, in my view, a voir dire on an expert's qualifications to give opinion evidence on a section 98 assessment should be held routinely before the trial judge, especially when the opinions expressed in the report are not accepted by all the parties and the answers in the assessment report to the questions posed in the assessment order, if accepted, would provide ready-made answers to the very questions before the court. As Molloy, J. wrote in R. v. France, 2017 ONSC 2040 at para 12:

The necessity factor is raised where the expert's proposed evidence impinges on the role of the trier of fact, often offering an opinion on the very question that the jury is required to answer. Sometime, because of the nature of the question to be answered by the jury, expert testimony on the issue is essential for the jury to understand the subject matter. However, the trial judge must be vigilant to ensure that the expert's testimony does not stray from the true area of the witness's expertise and into the fact-finding role of the jury.

[17] Given the serious risks of a miscarriage of justice associated with the admission of unreliable opinion evidence, I am satisfied that the White Burgess test for the admission of expert opinion evidence applies equally to court ordered expert opinion evidence.

EVIDENCE ON THE VOIR DIRE

[18] Two witnesses were called on the voir dire, namely Dr. Walton-Allen and Dr. Rick Morris, Registrar of the Ontario College of Psychologists.

[19] Dr. Walton-Allen gave evidence on the voir dire as to the following matters:

1. Counsel for the Society sought to have Dr. Walton-Allen qualified as "a registered psychologist with expertise in parenting capacity assessments and psychological assessments and child development." The witness adopted this characterization of her area of expertise.

2. She acknowledged that she is not a "clinical psychologist" and that this term was mistakenly put into her Curriculum Vitae by her staff unbeknownst to her and that she only became aware of the error when it was brought to her attention by Dr. Rick Morris as a result of a complaint made to the College in August, 2018. She testified that she also did not know that she was described as a clinical psychologist on her Linked-in page, on her employment website, and in two reported decisions of the court. She admitted that she had dictated, read, and then signed a letter directed to a psychiatrist for one of the children, where she wrote, "I am the clinical psychologist assigned to do a court ordered parenting capacity assessment…." (She could not explain how this could have happened.)

3. She showed the court a letter she had received from the College in 1997 wherein her declared competencies and authorized client populations were set out. This letter set out the following:

   a. school psychology assessment, other intervention/treatment and consulting, research, and program evaluation;

   b. applied behaviour analysis assessment, other intervention/treatment, consulting, research, and program evaluation;

   with children, adolescents, adults, families, and organizations as the principal client groups.

4. She testified that she holds two academic positions. Currently she is an Adjunct Professor at McMaster University, Department of Psychology, Neurosciences and Behaviour, and is currently a thesis advisor and clinical internship Supervisor to visa students at the undergraduate and Master's level, however, she indicated that she did teach university courses in the past at McMaster. As well, she indicated that she was an Associate Professor, Department of Applied Behaviour Analysis, University of Nevada, but provided no details as to her current involvement with this university.

5. She is the author of a number of articles, most of which dealt with mothers with developmental disabilities and autism related issues. Her firm also prepared a number of training manuals dealing with intensive behavioural intervention programs for autistic children.

6. She told the court that she works as a Director in a company called Behaviour Innovations. This company is involved with individuals, families and organizations and offers intensive behaviour interventions to children and adolescents with challenging behaviour who have Autism Spectrum Disorders, neurodevelopmental disorders, or cognitive disorders. The company also offers home-based applied behaviour analytic interventions for children and adolescents with Autism Spectrum Disorders, Attention Deficit Hyperactive Disorder, Learning Deficits, and Challenging Behaviour. Consultations to preschool, elementary school and secondary school settings in these areas are offered.

7. Dr. Walton-Allen testified that she functions primarily as a behavioural analyst. She defined applied behavioural analysis as the "empirical analysis of behaviour for the purposes of making meaningful and socially significant changes in individual's lives and functioning and organizations." She testified that there is "no therapy but that her company does behaviour assessment and behavioural intervention."

8. She testified that she also performs parenting capacity assessments. Her first parenting capacity assessment was completed in 1992. She estimated that she had completed over 100 parenting capacity assessments and had attended court to give evidence on approximately 20 of those assessments. She felt that she was well qualified to prepare parenting capacity assessments. She testified that she had "never not been qualified an expert." She did not recall if she had ever been qualified as an expert in school psychology. She said that she had prepared parenting capacity assessments for parents and for the court. She indicated that she had also completed reports for the court for children and adolescents with developmental disabilities who find themselves on the "wrong side of the law".

9. She testified that currently there is no defined areas of practice associated with the production of parenting capacity assessments. She said that social workers do them, mental health nurses do them, registered psychologists do them as do psychiatrists. She testified that expertise in this area relates to education, years of practice and training. She felt that being an applied behavioural analyst assists her in performing this work and talked about her experience with mothers with intellectual disabilities and parenting.

10. She noted that Applied Behavioural Analysis involves the scientific principles and procedures discovered through basic and applied research used to improve socially significant behaviour to a meaningful degree.

11. She agreed that she performed her testing for her parenting capacity assessments as a psychologist and would not have been authorized to perform such testing if she were only an applied behavioural analyst. She acknowledged that applied behavioural analysis is not a regulated activity in the Province of Ontario and that her reference to being a "Board Certified Behavioural Analyst" refers to her certification in the United States.

12. She acknowledged that when she conducts a parenting capacity assessment she is not "creating an environment that facilitates learning and mental health."

13. Dr. Walton-Allen had an associate in her office named Jane Lee, who is not a psychologist, assist her in conducting most of the collateral interviews using questions that she prepared. As well, Ms. Lee conducted the psychological testing on the parents. There was no evidence that Ms. Lee was qualified to conduct the testing. Dr. Walton-Allen indicated that the observation notes of Ms. Lee were merged with her observations in the report without any attribution as to the source of the information contained therein. She felt that this was no problem as the order for the assessment specifically provided that "Dr. Walton-Allen may be assisted by her team at Behaviour Innovations".

14. Dr. Walton-Allen denied being biased in favour of the Society. She testified that she would routinely be in touch with Society staff to arrange appointments or obtain addresses. She did agree that she spoke to Ms. Natalie Allen, family service worker, to advise of changes in the plan of care of the parents who told her they would be separating, but noted that she also wrote to counsel for the parents in this regard. She agreed that Ms. Natalie Allen had advised her, without apparently advising parents' counsel, that the Society was investigating the mother because her oldest son had alleged that she had struck him. As well, she agreed that she had made some preliminary comments to Ms. Allen about where she might be going with the report without sharing these comments with the other parties (possibly in breach of the court order that provided for full transparency in communications between the parties and the assessor). It was her position that nothing was said or done with Ms. Natalie Allen that affected the recommendations in her report in any improper way.

15. She testified that she was aware that she was the court's witness and that she understood her duty to the court to provide fair, objective and non-partisan opinion evidence that related only to matters that were within her area of expertise. She also acknowledged her duty to provide such additional assistance as the court may reasonably require to determine a matter in issue. She felt that she had fulfilled her duty and that she was competent to prepare this report given her education, her professional qualification and her experience.

[20] Dr. Rick Morris gave evidence on the voir dire on the following matters:

1. He is the Registrar for the College of Psychologists of Ontario. As Registrar, one of his duties is to maintain the register that sets out each member's authorized area of practice and the population group or groups he or she is authorized to serve. The College began to standardize the areas of practice in 1997-98 and the current eight categories, with only minor changes (and none to the school or clinical category) have been in effect since 2004. The public portion of the register is now on the College's web site.

2. Psychology is a self-governing health profession under the Regulated Health Professions Act, S.O. 1991, Chapter 18 as amended.

3. In order to practice as a registered psychologist in Ontario, a psychologist must be a member of the College of Psychologists of Ontario. Subject to the terms of his or her certificate of registration, a registered psychologist is entitled to practice autonomously and to charge fees for services provided in one or more of eight areas of practice with one or more of the six or seven population groups enumerated. There is one further requirement – the member must not only be registered in an authorized area of practice and be working within his or her authorized client population, he or she must be competent to provide those particular services.

4. To be registered in one of the eight categories an applicant would have to demonstrate to the College's satisfaction that enough of the applicant's course work and training would put him or her into one of the College's eight categories of practice. Then there would be a period of supervision by a primary and a secondary supervisor pre-approved by the College, followed by written testing and an oral exam. Only at that point would an applicant, who holds a doctorate in psychology, be eligible to be registered as a psychologist with the College.

5. If a member were to seek to change his or her area of practice or authorized client group, there is a procedure to be followed as set out by the College. A member of the College does not change his or her area of authorized practice or his or her authorized client group by merely advising the College of a decision to do so. It is professional misconduct to intentionally make public statements that are misleading or fraudulent as to a member's area of authorized practice or his or her authorized client group or to provide services outside his or her area of authorized practice or to a member of a client group not authorized in his or her certificate of registration.

6. Dr. Morris agreed that a school psychologist could not refer to himself or herself as a clinical psychologist. Cases of this nature would be referred to the discipline committee for review.

7. Today there are only eight areas of authorized practice, namely, clinical psychology, school psychology, clinical neuropsychology, counseling psychology, forensic/correctional psychology, health psychology, industrial/organizational psychology, and rehabilitation psychology. There is no other category.

8. Prior to the formalization of the eight practice areas, certain members were authorized in areas not currently covered. Dr. Walton-Allen appears to be one of those persons given the letter she received in 1997 which included "applied behaviour analysis". No one applying today would be given such a letter, and the College is considering how to deal with these anomalies.

9. Applied behaviour analysis is not a regulate activity in the Province of Ontario, so anyone can do applied behaviour analysis. If an applicant came in today with applied behaviour analysis and school psychology he or she would be registered as a school psychologist with no other designation. Dr. Morris was asked about Dr. Walton-Allen's designation. He replied that if a member of the public were to request confirmation of Dr. Walton-Allen's area of practice, the College would confirm that she is a "registered school psychologist".

10. There is nothing stopping any psychologist from doing any psychological test as long as the test is not going to be used contrary to their authorized area, and provided they are competent in performing such tests.

11. When asked whether a school psychologist would be able to perform a parenting capacity assessment, he indicated, that although he was a clinical psychologist, he had never performed a parenting capacity assessment. He said that, to his knowledge, most parenting capacity assessment were done by clinical psychologists. If a concern was raised that a member of the College was practicing outside his or her area of practice, the complaint would go through the complaint's process. The complaint's committee would look at the member's background, their skills, and the issues involved. To his knowledge there is no rule that would prohibit a school psychologist from performing such an assessment. He said that it would depend on their training, education, experience and on the issues involved to determine whether the assessment was actually within or outside of their area of competency.

12. Dr. Morris reviewed the definitions of a school psychologist and a clinical psychologist. According to Dr. Morris, a school psychologist "would have a background in school psychology and educational testing and, various things that one requires to become…a school psychologist, in terms of doing assessments and, and evaluations and, very often counselling and therapy with individual – students in schools." Dr. Morris testified that "if you were a school psychologist you probably wouldn't have training to the same extent in some of the more serious psychological disorders, when you're moving into the schizophrenia and those kind of psychiatric disorders – you probably wouldn't get that kind of psychopathology in schools, …get it much more in the clinical psychopathology and abnormal psychology." As for a clinical psychologist, Dr. Morris testified that a "clinical psychologist will do an assessment of emotional difficulties, and other kinds of, of cognitive problems, and they'll also do treatment; they'll do testing… They'll do testing in order to – there's a number of tests one might perform on or administer, in order to come up with a diagnosis – a psychological diagnosis."

13. He agreed that there could be an overlap in the work done by a clinical psychologist and a school psychologist. There would be overlaps as a school psychologist would also need to understand how an individual's social environment could be affecting learning. However, a school psychologist would generally focus on the mental health and learning needs of children, adolescents and adults and on facilitating a positive learning environment.

DISCUSSION

Should the section 54 assessment report be struck from the record?

Should Dr. Walton-Allen be allowed to provide expert opinion evidence to the court?

[21] Dr. Walton-Allen was chosen by the parties and approved of by the court to provide this assessment report. The Curriculum Vitae appended to the motion for the assessment order referred to Dr. Walton-Allen as a registered clinical psychologist with a background in applied behaviour analysis. As seen from the questions posed to the assessor in the court order, and from the reasons given as to why a parenting capacity assessment was being sought, it is evident that this expert opinion evidence was viewed as necessary to move this case forward and determine what disposition might be in these children's best interests. In the order for the assessment, the court sought the expert opinion of the assessor on complex mental health issues and on complicated familial relationship and attachment issues, and on the ability of the parents to meet their children's needs and to benefit from therapeutic interventions.

[22] Dr. Walton-Allen assessed the situation. She ordered psychological testing; she interviewed the parents and the Society workers and gathered collateral information. In the end, she expressed an expert opinion that the mother had limited parenting skills and that her limited parenting skills, and a disorganized, emotionally impoverished home underpinned the chaos in the home and was the explanation for the behavioural excesses of the children. On page 98 of the parenting capacity assessment, she wrote:

In conclusion, although the multi-axial timeline would suggest that the family support needs of J.B.(the mother) increased dramatically with the births of her youngest two children (J.D.B. and J.B.B.) suggesting that the increasing family size and neurodevelopmental issues of J.B.B.(the oldest child) and J.R.B. were the pivotal factors in the decline of the family's functioning, in fact it can be argued that the foundational issues of limited parenting skills and a disorganized, emotionally impoverished home environment, apparent as early as 2005, were the key issues that underpinned the explosion of behavioural excesses of J.B.B. and later that of J.R.B. and J.D.B., and closely correlated with the deterioration of J.B.'s. (the mother's) mental health, which drove the family unit into a state of chaos such that apprehension of the children was the only way to ensure their survival and provide some reasonable hope for a better developmental outcome.

[23] Dr. Walton-Allen's concluded that the mother was at very high risk of experiencing continued difficulties in parenting her children. She also concluded that the mother exhibited a lack of commitment to utilizing available support to improve her own parenting capacity and that her passivity and cynicism interfered with her ability to build a safe and nurturing environment for her children. She concluded that the mother had a poor prognosis for significant improvement. She wrote that it was her opinion that, given the mother's intrinsic constitutional factors, no model of psychotherapy or home-based services which rely on client activation and disciplined self-direction will be effective, and that the likelihood that she would actually revise her day to day behaviour based on a counselling model of treatment was highly unlikely. (see pages 242-243 of the assessment.)

[24] Dr. Walton-Allen went on to say that if the children were returned to the mother's care, it was very likely that there would be a resurgence of the same challenging behaviours or high-risk situations that contributed to the implosion of the family in 2016. (see page 251 of the assessment report.)

[25] I have included these comments as examples of the very strong opinions expressed in the parenting capacity assessment relating to the mother's capacity to parent. Ms. Natalie Allen, who is the family services worker for this family, read this assessment and changed her approach to the management of the file. She testified that, prior to receiving the report, it was the Society's position to work towards reunification of the parents and the children. Ms. Allen noted that the assessment report answered many of her previously unanswered questions as to what was happening in this family.

[26] The opinion evidence contained in this parenting capacity report had a significant effect on the approach that was being taken by the Society, and if accepted by the court, would indicate a clear path forward. Dr. Walton-Allen provided a ready-made explanation for the behavioural excesses of the children. According to the assessor, the children's excesses resulted from the emotionally impoverished parenting of a mother who was unlikely to benefit from counseling or be able to adjust her behaviour, and permanent removal of the children was the only way "to ensure their survival and provide some reasonable hope for a better developmental outcome." If accepted by the court, the path forward would be clear – all of the children would be ordered into extended care.

[27] In the words of Molloy, J. in R. v. France, supra:

…the necessity factor is raised where the expert's proposed evidence impinges on the role of the trier of fact, offering an opinion on the very question that the jury is required to answer.

[28] In my role as gatekeeper, I am required to scrutinize the evidence to insure that the opinion evidence proffered meets a minimum threshold of reliability before its admission into the record. Even then admissible evidence should still be excluded if the prejudicial value of the evidence outweighs its probative value. See R. v. Bingley, 2017 SCC 12, 345 C.C.C. (3d) 306, at para 6.

[29] As Laskin, J.A. in R. v. Abbey, 2017 ONCA 640 para 115 wrote when discussing the value of certain expert evidence:

Expert evidence of dubious or questionable reliability has little probative value, and offers little benefit to the trial process. At the same time, evidence of questionable reliability risks distorting and prejudicing the fact-finding process: see Mohan, at p. 21

[30] Dr. Walton-Allen is not a clinical psychologist. Her area of practice is school psychology. According to the web site for the College of Psychologists of Ontario, a school psychologist would have training in the administering of psychological testing with a focus on learning issues and an ability to perform an appropriate psychological assessment and be able to plan, execute and evaluate an appropriate psychoeducational intervention. Clinical psychology is described as the application of knowledge about human behaviour to the assessment, diagnosis and/or treatment of individuals with disorders of behaviour, emotions and thought. Clinical psychologists require knowledge of psychopathology/abnormal psychology, knowledge of personality/individual difference; knowledge of psychological assessments; knowledge of psychodiagnostics; knowledge of intervention procedures/psychotherapy; and knowledge of evaluation of change. A clinical psychologist would have the ability to perform an appropriate clinical assessment with the ability to formulate and communicate a differential diagnosis, and have the ability to plan, execute and evaluate an appropriate treatment program.

[31] I have read the 280+ page report prepared by Dr. Walton-Allen. The breadth of this report and its far-ranging recommendations and comments about personality and psychopathology, abnormal behaviour and prognosis for change places it, in my view, within the clinical area of practice.

[32] I do not agree that "a social worker and/or a mental health nurse" are preparing court ordered parenting capacity assessments. Section 54 now Section 98 assessors must be approved of by the court, and it has not been my experience that a social worker, or mental health nurse would ever be suggested let alone approved of by the court to complete such an important assessment. Parenting capacity assessments are only ordered where the court feels that such assessments are necessary for the court to understand the technical issues involved in the case. Parenting capacity assessments can be very influential in determining the next steps in the case. Knowing this fact, courts need to be vigilant and cautious in vetting credentials of the expert so as not to end up with expert evidence in the record of "dubious and questionable reliability."

[33] Dr. Morris indicated that there is no rule that a clinical psychologist is the only type of psychologist who is qualified to complete such a report. I would urge the College of Psychologists of Ontario to review this policy in light of the recent miscarriages of justice that have resulted from unqualified expert opinion evidence being accepted by the court. The College of Psychologists of Ontario is a self-regulating body and has the ability to prescribe the qualifications and experience a member would have to possess before performing a parenting capacity assessment. Parenting capacity assessments are only being ordered by the court where the court requires reliable, expert opinion on complex psychological and social issues and where the stakes are very high—often the very continuation of the family unit is at issue. It is clear from the statute that these reports are to be ordered only when the information is necessary for a court to make a determination on an issue and that that information is not otherwise available. Parenting capacity assessments are not ordered because the information would be merely "helpful". Sometimes, these reports actually decide the issue, particularly when the case is resolved prior to trial and the report is used in settlement negotiations. At trial, these reports can be very persuasive. It would be difficult to over-state both the importance of these reports to the court, to the Society, and to the vulnerable population who are often being served and the need to insure that these reports are only being prepared by qualified assessors.

[34] I am not satisfied that a school psychologist has the skills and knowledge necessary to answer the questions posed in the assessment order of Justice Starr. For my part, I cannot be confident that Dr. Walton-Allen has the expertise necessary to proffer the opinions she has in the detailed report she has filed in this case. Defining the limits of expertise is a key part of a trial judge's role as gatekeeper to avoid miscarriages of justice by ensuring that only opinion evidence with threshold reliability is allowed into the record. This important role as gatekeeper is discussed in the Inquiry Into Pediatric Forensic Pathology in Ontario, Vol. 3 (the Goudge Report) at page 474, which reads as follows:

"The very act of defining the precise limits of a witness's expertise will have the salutary effect of ensuring that the evidence given is truly expert. Defining the limits of expertise is a key part of the trial judge's role as gatekeeper."

[35] Not only am I concerned that Dr. Walton-Allen, as a school psychologist, does not have the skill and knowledge necessary to proffer the opinions and prognosis for change that is contained in the report, I have concerns about her credibility as I find that she intentionally misrepresented her qualifications to the court in her Curriculum Vitae and answered before me in an evasive manner when questioned about this mischaracterization of her qualifications.

[36] I heard Dr. Walton-Allen's reply to questions asked about her use of the term "clinical". When questioned about the mischaracterization of her qualifications in her Curriculum Vitae, she told the court that this was a mistake made by a staff member and that she was unaware of this misstatement until it was brought to her attention by Dr. Morris. When shown two reported court decisions in which she gave evidence after being qualified to give expert opinion evidence as a clinical psychologist, she said that she had not noticed the error in her Curriculum Vitae at the point she had been asked to identify the document, and that she did not hear the judge use the term clinical when he qualified her to give expert opinion evidence. She denied being aware that she was being described on LinkedIn or on her company web site as a clinical psychologist. Her denials strained credulity. However, when she reviewed a letter she had dictated, read, and sent to one of the children's psychiatrist in which she referred to herself as a court appointed "clinical psychologist", I became convinced that she had been intentionally using the clinical designation to increase her credibility as a psychologist. Put another way, I began to question whether the parties in this case would have chosen Dr. Walton-Allen as an assessor if they had known that she was a school psychologist. More importantly, I questioned whether Justice Starr would have approved her as the assessor on this file if she had known that Dr. Walton-Allen was a school psychologist who had been intentionally misrepresenting her qualifications since at least 2009 (the date the first reported decision referred to her as a "clinical psychologist").

[37] I did have some reservations about the methodology adopted by Dr. Walton-Allen adopted in preparing this report, and that such methodology might have had an impact on threshold reliability and therefore, on the admissibility of the parenting capacity assessment. In her evidence given on the voir dire, Dr. Walton-Allen indicated that Jane Lee, her associate at Behaviour Innovations, conducted collateral interviews, and administered psychological testing on the parents. She also indicated that Ms. Lee's observations and notes were merged into her report without attribution. This team approach adopted by Dr. Walton-Allen might have had the effect of interfering with an ability to properly scrutinize the evidence. The qualifications of Ms. Lee to perform the testing and conduct the interviews were not delineated. (See Children's Aid Society of London and Middlesex v. C.D.B., [2013] O.J. No. 2808 for a discussion of a parenting capacity assessment that was rejected on the basis of a team approach to the creation of the assessment report.) Dr. Walton-Allen saw no difficulty with this process as the order of Justice Starr provided that Dr. Walton-Allen may be assisted by her team at Behaviour Innovations. However, in this case, the evidence called on the voir dire was not as clear as was the evidence produced in the C.D.B. supra, that an unauthorized team approach had been used to produce this report. Here, Dr. Walton-Allen testified that she authored the report and that the opinions expressed in her report were her opinions alone. Given that this is not the clearest of cases, and that the evidence contained in the assessment is important evidence, if no other reason for the exclusion of the report was present, I would have allowed in the evidence, and any frailties in the evidence would have gone to weight. Since I was more concerned about the qualifications of the assessor and her intentional misstatement of her qualifications to the court at the time she was appointed to do the assessment, I did not consider this issue further.

[38] For the reasons set out above, I am not prepared to qualify Dr. Walton-Allen as an expert entitled to give expert opinion evidence in this proceeding. Although I accept there may be certain aspects of her evidence in which she would arguably be qualified to provide an opinion, I am not prepared to parse out such evidence from the report and permit her to testify as to those areas. As gatekeeper of the evidentiary record, I find that her expert opinion evidence does not meet the test for threshold admissibility as I cannot be satisfied that the benefits of admitting any or all of her evidence outweighs the potential risks to the fact-finding process given my serious reservations as to her qualifications, and her reliability. Further, I am striking the report from the evidentiary record on the basis that Dr. Walton-Allen intentionally misstated her qualifications to Justice Starr when she was approved by the court as a person qualified to perform the "medical, emotional, developmental, psychological, educational or social assessment". I find that she does not have the qualifications to complete such a report given the complexities of the issues involved and given her educational and professional background. The fact that she has prepared many such reports in the past, and has been accepted as an expert by other courts is not binding on me. I suspect that the same decision I have made would have been made by those other courts if the facts known to me were also known to them.

Released: December 6, 2018

Signed: Justice Penny Jones