WARNING

The court hearing this matter directs that the following notice should 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.

(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.

(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.

ONTARIO COURT OF JUSTICE

CITATION: Children’s Aid Society of Algoma v. S.B., 2022 ONCJ 248

DATE: 2022-05-02

COURT FILE No: 108/13

BETWEEN:

Children’s Aid Society of Algoma Applicant,

— AND —

S.B. G.C. Conseil Des Abenakis d'Odanak Band Representative Respondents

Before Justice John Kukurin

Heard on April 27, 2022

Voir Dire Ruling released on May 2, 2022

Counsel: Mira Pilch, counsel for the applicant society Eric McCooeye, counsel for the respondent father, G.C. S.B., Respondent mother (self represented) Serge Treherne, OCL counsel for the children No one for Conseil Des Abenakis d’Odanak Band Representative

KUKURIN J.

[1] The matter before this court is a voir dire in this child protection trial. At the outset of the voir dire, all counsel and parties agreed that this would be a blended voir dire, with the evidence presented on the voir dire also being trial evidence. The voir dire was to determine if a society witness was qualified as an expert.

[2] The witness presented by the society is Dr. Peter Marshall, Ph.D., a psychologist.

[3] The society sought to have the court qualify Dr. Marshall as an expert (a) in clinical psychology; and (b) in assessing the risk of harm to the two subject children if access to them by their father was supervised by their paternal grandfather.

[4] The society tendered the curriculum vitae (C.V.) of Dr. Marshall which was made Exhibit 2 in this proceeding. It also tendered a Form 20.2 signed by Dr. Marshall being Expert’s Acknowledgement of Expert’s Duty, which was made trial Exhibit 3.

C.V. Summary

[5] Dr. Marshall has been involved in the field of psychology since 1970 when he started an undergraduate degree (B.A. Honors 1st class, 1973) in England, followed by his doctoral (Ph.D.,1976) degree from Queens University in Kinston. He did his internship in the mid 1970’s at the Kingston Psychiatric Hospital and at Joyceville Prison for Women. He held a number of positions in the late 1970’s including teaching psychology as an Adjunct, then Assistant, professor at Queens. He was a clinical consultant to various bodies including the Frontenac County Board of education, student counselling, the Family Court Clinic in Belleville, and Kingston General Hospital. He sat on the board of the Children’s Aid Society, Kingston, for two years in 1979-1981.

[6] In 1981, he began a private practice which he has continued to date, currently in Barrie. In the course of that practice, he acted as a consultant to various entities such as the Trillium Lakelands District School Board and the Durham Family Court Clinic, in which position he continues to date. He was a consultant for the sexual abuse treatment programs for Simcoe County and for Thistletown Regional Center in Toronto. He has continued his teaching at the university level as a professor, and as a tutor teaching undergraduate as well as graduate courses. He has been a panel member on numerous occasions and has a presented extensively at various associations, conferences and workshops throughout his career, including at our court’s judges association. He has a number of papers (with co-authors) published in reputable professional journals, although none are specified to be peer reviewed.

[7] He has performed approximately sixty parenting capacity assessments in his career. He has given evidence relating to such assessments in court on at least 15 occasions . He claims he has never not been qualified by the court as an expert witness. Unfortunately, he did not specify in what areas of psychology he was judicially qualified as an expert. Dr. Marshall stated that he has expertise in the two areas in which the society seeks to have him qualified as an expert by the court.

[8] Dr. Marshall’s academic and experiential credentials are very impressive as one would expect from a person who has devoted more than 50 years to his profession as a psychologist. There is an enormous but unmeasurable amount of knowledge that one can accumulate over half a century. This may not always be the case, as a person may know at the end little more than at the start. For Dr. Marshall, it is apparent from his C.V. that he is not one of these. On the contrary, he has matured and moved into other areas within the field of psychology that have provided a much broader foundation for his professional pronouncements today.

[9] That said, it behooves this court to scrutinize the areas in which that Dr. Marshall claims to be an expert and to see if the court agrees.

The Law on Expert Witnesses

[10] It should be mentioned at the start that the assessment performed by Dr. Marshall was one that was ordered judicially under s.54 of the Child and Family Services Act (now s.98 of the Child, Youth and Family Services Act). The former statute (the CFSA) had provisions that are identical for all intents and purposes to those in the latter (the CYFSA). Section 98(1) CYFSA provides:

S. 98 (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):

1. The child.
2. A parent of the child.
3. 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.

[11] Sections 98(4), (5) and (12) provide

S. 98 (4) 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.

S. 98 (5) 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.

S. 98 (12) The report of an assessment ordered under subsection (1) is evidence and is part of the court record of the proceeding.

[12] The court did appoint Dr. Marshall to conduct some assessments. This was pursuant to orders made on three motions brought by the society. The motions judge felt that Dr. Marshall was “qualified” to perform the assessments that were ordered. Neither the above subsections, nor the orders made, purported to, or actually qualified Dr. Marshall as an “expert”, or enabled his opinion as a purported expert to be admitted at the trial in this proceeding. That qualification as an expert falls within the mandate of the trial judge.

[13] Justice P. Jones, in Children’s Aid Society, Region of Halton v J.B.[^1] stated [at paragraph 16]

“ …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.”

[14] Justice Jones quoted Justice Molloy in R. v France[^2] [at paragraph 12]

“ …, 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.

[15] In R. v Abbey[^3], the Ontario Court of Appeal, approving the test for admitting expert evidence set out in the White Burgess[^4] case, clarified [at paragraph 48]

“ The test in White Burgess is now the governing test for the admissibility of expert evidence. It adopts a two-stage approach … : the first stage focuses on threshold requirements of admissibility; the second stage focuses on the trial judge's discretionary gatekeeper role. Each stage has a specific set of criteria”

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: Legal relevance, Necessity, Reliability, and Absence of bias

[16] In the case of Dr. Marshall, and of his judicial qualification as an expert, this court is mainly concerned with the first part of the test. It is not concerned with whether Dr. Marshall’s opinions and recommendations are admitted into evidence, and if so, what weight will be assigned to them. In this Ruling, the only issue is whether Dr. Marshall is qualified as an expert.

[17] The qualification of Dr. Marshall as an expert in “assessing the risk of harm to two children if access to them by their father was supervised by their paternal grandfather” presents an issue that concerns this court. The concerns have several aspects

(a) Is This a Recognized Area of Expertise in Psychology?

[18] This is a foundational question for the qualification of any expert. Many psychologists may be experts, but they may be so in different specialties in the field of psychology. Dr. Marshall conceded that specialties existed in his avocation. For example, there are specialists in fields of psychology such as child, clinical, counselling, educational, forensic, industrial etc.[^5] Dr Marshall is registered with the College of Psychologists of Ontario, his governing body since 1978. He maintains that since the Health Professions Act came into being, a psychologist could simply declare his or her specialty within the field of psychology. I am skeptical that a psychological specialist can become so by simple declaration but, in fairness, Dr. Marshall did not elaborate on other requirements of his profession to become a specialist in any particular field thereof. What Dr Marshall did admit is that he has not declared himself a forensic psychologist but has done much work in that area.

[19] The assessment Dr. Marshall was ordered to complete was the subject of three motions by the society. The first he dismissed without prejudice to bringing it back with better evidence. The second he granted in part. The third added the assessment of the father. The evidence on the first motion lacked “ … evidence from the Society regarding the protocol intended to be used by the proposed expert[^6] witness regarding an assessment of “supervisory capacity” and the qualifications of the proposed expert witness to conduct such s.54 assessment.” The second motion apparently provided such missing evidence, at least enough to satisfy the motion judge. The portion of the order dated July 8, 2016, made on that second motion, that is the most relevant to the voir dire held now, relates to whether the paternal grandfather has “the skills, ability and capacity to supervise the father’s access to any of the children”. More to the point, the assessor was asked to answer whether the paternal grandfather has the ability or capacity to recognize and protect the child K. if he (the PGF) maintains his position in relation to the allegations made by K. against the father. He was not asked to comment on whether the paternal grandfather has the ability or the capacity to protect the other two children (O. and J.) if he maintains his position in relation to the allegations made by K. against the father. Lest this is seen as splitting hairs, I note that the order says what it says, and that it is the society that sought the order and that had the order issued and entered in its present form.

[20] What this court garners from these decisions that is of relevance to this voir dire is that Dr. Marshall was tasked with assessing whether the paternal grandfather was a suitable access supervisor for the children O. and J. from the standpoint of having the skills, ability and capacity. In short, he was tasked to comment on the paternal grandfather’s “supervisory capacity”.

[21] Supervisory capacity of a person is not the field of any specialty in the field of psychology. Dr. Marshall conceded this was true. However, he also said that he had enough education and experience to comment on ‘supervisory capacity’. He also admitted that he had not done any similar or comparable assessment previously. Moreover, he also admitted that there is no established protocol in the field of psychology of which he was aware that could be used to apply in the assessment involving this particular question. Finally, he acknowledged that there was no data known to him of the results of assessment of this kind. If the court understood him correctly, this was a novel area in the sense that there exists no previous research or results.

[22] For this reason alone, I am not prepared to qualify Dr. Marshall as an expert in the assessment of risk to children being supervised by an access supervisor, and absolutely not in the specific context of O. and J. being supervised during access visits by their father. This specialty simply does not exist in psychology.

(b) Is the Expert Opinion Sought on the Ultimate Issue in the Case?

[23] Flowing logically from the lack of a recognized specialty in the field of psychology is the problem of “novel science” or “science for a novel purpose”. In the oft quoted R. v Mohan[^7] decision, Justice Sopinka states [at paragraph 28]

“In summary, therefore, it appears from the foregoing that expert evidence which advances a novel scientific theory or technique is subjected to special scrutiny to determine whether it meets a basic threshold of reliability and whether it is essential in the sense that the trier of fact will be unable to come to a satisfactory conclusion without the assistance of the expert. The closer the evidence approaches an opinion on an ultimate issue, the stricter the application of this principle.”

[24] The assessment of the paternal grandfather as an access supervisor of his son’s access with the two children, O. and J., is precisely the ultimate issue of this court in this trial. In fact, it is pivotal as the society has stated that it has two alternative dispositions, contingent on whether the court approves or disapproves the paternal grandfather as the access supervisor.[^8]

[25] This special scrutiny is not just from the Mohan decision. It is reiterated in the 2015 White Burgess decision in the Supreme Court of Canada, and many trial decisions and voir dires on qualification of experts. In the present case, what does Dr. Marshall present that the court does not have already? Little, I am afraid. He presents some information, although not in his assessment, about continued sexual offending by sexual perpetrators as they age. But he offers little to nothing about supervisors of access to children by parents who had previously engaged in sexual misconduct with other children.

[26] I conclude that Dr. Marshall has not passed this special scrutiny requirement in the first part of White Burgess test.

(c) Is the Evidence Impartial, Independent, and Unbiased?

[27] This is a more subtle issue that warrants some explanation. There are several facts that bear on this issue.

• The assessment was done from August to November 2016 and is dated Jan 17, 2017. It is now 5 years old. It is objectively dated, and possibly otherwise.
• The s.54 (now s.98) orders referred extensively to the child K., his allegations of sexual impropriety by his father, and the father’s access to him. K. is no longer a subject of, or a concern of this child protection proceeding.
• The assessor rightly took into account K.’s allegations against his father in formulating an opinion on the paternal grandfather as access supervisor for O. and J. However, the court’s later finding in need of protection on risk of sexual misconduct[^9] grounds did not rely on K.’s allegations at all. In short, K.’s allegations formed much of the framework for the assessment, but were not trial findings of fact.
• The assessor formed his opinion of sexual impropriety by the father based on information and facts provided by the society. He also relied on a psychosexual assessment of the father which used phallometric testing. He does not recall receiving any information from others. His assessment involved interviews and observations of the paternal grandmother, grandfather the mother and the father. He clearly disbelieved the father and believed what he had received from the society despite indicating that he, himself, was not required to determine if the father sexually misconducted himself.
• The assessor approved both the paternal grandmother and the mother (of O. and J.) as access supervisors. He did not approve the paternal grandfather. The only real distinction in the basis for this different result is that the grandfather expressly disbelieved that the father had engaged in the sexual misconduct alleged, and that he attacked both the evidence and the psychosexual report, whereas the grandmother and mother, while still disbelieving the truth of the allegations, were willing to concede that they, or some of them, might be true.

[28] How do these facts weigh in on the assessor’s impartiality, independence and lack of bias? From a technical point of view, O. Reg 25/07[^10] requires the assessor to include in his assessment:

2. A schedule setting out (iii) a list of the materials provided and considered
3. A schedule setting out the methodology used in carrying out the assessment, including the interviews, observations, measurements, examinations and tests, and whether or not they were conducted or carried out under the assessor’s supervision.
4. The reasons and factual basis for any conclusions drawn by the assessor.
5. A direct response to the questions presented to the assessor in the assessment order, or an explanation of why these questions could not be addressed.
6. Recommendations where these were required of the assessor, or an explanation of why recommendations could not be made.

[29] There was no schedule provided in Dr Marshall’s report. There was only a reference to “Numerous documents were forwarded to me. Not all of the material was reviewed.” Notwithstanding the lack of a detailed schedule of materials, Dr. Marshall mentioned that he had read a number of records that related to K., including from Sault Area Hospitals, Little Warriors Be Brave Ranch, Dr. Keith Lefave assessment report of K., Dr. Susan Dundas telepsychiatry report of K., Ms Anna Hagerty Sexual Assault Care Centre records, and of course, many of the police and society video recorded interviews with allegations of the father’s sexual improprieties. What else he may have read or not is unknown but clearly most of it emanated from the society. Most of it was not favourable to the father, and most of it was devoid of any mention of the grandfather. The only reports that were not unfavourable were supervised access reports of the father’s access that reported, on the whole, mutually good access visits with O. and J. But no mention of the grandfather who is at the heart of the present voir dire inquiry.

[30] The reasons and factual basis for conclusions drawn by the assessor are rather unhelpful. He says, on the central issue in this voir dire, that the paternal grandfather remains adamant that the father poses no risk to a child. He then states his opinion as follows, with no analysis or other factual underpinnings:

“In my opinion, recognition that G. [the father] could pose a risk to young children is essential for the person to assume full responsibility as a supervisor”

This is not a reason or a factual basis. It is, as the assessor states, his “overriding concern” and is, so far as I can see, only his opinion, albeit as a psychologist.

[31] In short, there appear to be some deficiencies in complying strictly to the regulation. Perhaps not fatal, but leaving a lacuna for the court to deal with.

[32] More importantly, is the question of whether the assessor was unbiased. This has to be answered from the perspective of the paternal grandfather, not the father. The grandfather at the time of the assessment was admittedly well fixed in his position of disbelief of the father’s sexual misconduct. However, there had been no convictions. There had been no finding that any child was in need of protection on risk of sexual harm grounds. There were also no admissions by the father. In addition, there was clearly a strong animus between the father (G.) and his first partner (C.) the mother of the child K., from whom many of the allegations about the father arose. There is the niggling concern of this court that perhaps Dr. Marshall did not have an open mind of the kind called for in a s.54 (now s.98) assessor by the White Burgess case. In short, his information was overwhelmingly from the society. He could not even remember if he received anything from the father or the paternal family. This was at a time when the evidence was unproven allegations and no findings yet made. He apparently had made one.

(d) Summary and Conclusions

[33] In summary, I do not qualify Dr. Marshall as an expert witness for the society in this trial for the following reasons:

1. There is no recognized area of specialization or special expertise in the field of psychology that assesses access supervisors.
2. The assessment of access supervision is novel, requiring closer court scrutiny than areas that aren’t novel. The scrutiny here does not pass muster.
3. There is no established protocol for this assessment, nor did Dr. Marshall indicate that he used any particular protocol. In fact, he referred to what he did as the development of a ‘treatment plan’, not what he was ordered to do.
4. There is no indication from Dr. Marshall’s CV, or from his voir dire testimony that he has ever done an assessment comparable to this before in his career, or that he has any special knowledge of the area of access supervision.
5. The assessment report was deficient in that it had no schedule of what materials were received and consulted by the assessor. Nor did it provide the reasons and the factual basis for his conclusion about the grandfather, other than it was his opinion.[^11]

[34] Dr. Marshall was also proffered as an expert witness in the area of clinical psychology. I would have less hesitation in qualifying him as an expert witness in that area. However, I am unsure what part of his assessment fell within the boundaries of this expertise as no submissions were made by anyone. Clearly his testing /scoring/interpretation of the subjects was part of his clinical practice, but I note that his report mentioned a psychometrist who was not brought up in the voir dire evidence.

[35] In any event, Dr. Marshall is the assessor chosen by the court and he did perform an assessment under s.54 (now s.98). By virtue of s.98(12), his assessment report is “evidence” and is part of the court record. This court is prepared to hear what Dr. Marshall says and to accord to it whatever weight such evidence warrants.

Released: May 2, 2022

Signed: “Justice John Kukurin”

[^1]: Children's Aid Society, Region of Halton v. J.B., [2018] O.J. No. 6760, 2018 ONCJ 884 [^2]: R. v. France [2017] O.J. No. 1875, 2017 ONSC 2040, 36 C.R. (7th) 293, 2017 CarswellOnt 5547 [^3]: R. v. Abbey, [2017] O.J. No. 4083, 2017 ONCA 640, 350 C.C.C. (3d) 102, 140 O.R. (3d) 40, 2017 CarswellOnt 12134, 140 W.C.B. (2d) 601, 39 C.R. (7th) 303 [^4]: White Burgess Langille Inman v. Abbott and Haliburton Co., [2015] S.C.J. No. 23, [2015] S.C.J. No. 23, [2015] A.C.S. no 23, 2015 SCC 23, 2015 CSC 23, [2015] 2 S.C.R. 182, [2015] 2 R.C.S. 182, 2015 CarswellNS 313, 18 C.R. (7th) 308, 251 A.C.W.S. (3d) 610 (SCC) [^5]: The internet site https://techbaji.com/different-fields-psychology-definitions/ lists 22 separate specialties in the field of psychology. [^6]: If I may be permitted a comment, the motion judge might have been more correct in referring to Dr. Marshall as the ‘proposed assessor’ rather than the ‘proposed expert witness’. [^7]: R. v Mohan, [1994] 2 S.C.R. 9, [1994] S.C.J. No. 36 (SCC) [^8]: If the court does not approve the grandfather, the society seeks a s.102 deemed custody order with paternal access to be exercised at a Supervised Access Facility. If the court does approve the grandfather, the society seeks a child protection order with continued society supervision of the father’s access. In either case, the care and custody of the children will remain with their mother, a disposition that is not really contested. [^9]: I use the terms sexual misconduct or sexual improprieties because the term sexual offending has a connotation of criminality. The father has never been convicted of any sexual offence. [^10]: O. Reg 25/07 was in effect when the assessment was performed and so far as can be determined, is still in force today. There is no indication it has ever been repealed or otherwise rendered inapplicable. [^11]: I note that Dr. Marshall was tendered as a litigation expert rather than a participant expert. Rule 20.2 provides a list of what assessment reports of litigation experts must include, at minimum. I do not believe that the report complied with these, particularly in providing confirmation of his expertise in assessing an access supervisor’s ability and capacity.