Endorsement
COURT FILE NO.: FS-12-00375231
DATE: 20130308
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Victoria Fielding, Applicant
AND
John Craig Fielding, Respondent
BEFORE: J. Mackinnon J
COUNSEL: Gary S. Joseph and Christine Marchetti, for the Applicant
Ilana I. Zylberman and Michael Zalev, for the Respondent
HEARD: March 7, 2013
ENDORSEMENT
[1] Amy Baker, Ph.D., was retained by the applicant to provide opinion evidence about the theory and research pertaining to parental alienation and to explain why, if it is present, courts should intervene. Dr. Baker has not met the parties to the litigation, nor their children. She is not a licensed clinician and has not conducted any work that requires a clinical license. Her abridged Vitae is before the court. She received her Ph.D. in Developmental Psychology from Teachers College, Columbia University, NY in 1989. She is currently the Director of Research at the Vincent J Fontana Center for Child Protection, New York, NY. She is the author of a number of publications dealing with parental alienation and has presented training sessions and workshops in this area. Dr. Baker had previously provided expert opinion in a number of the United States and on one occasion in Ontario.
[2] The respondent challenges Dr. Baker’s qualification as an expert on the basis that her evidence is not necessary and lacks sufficient objectivity and balance.
[3] I conducted a voir dire to determine whether Dr. Baker’s testimony would be admitted. The evidence in the voir dire consisted of oral testimony from the applicant, Dr. Baker’s oral testimony, her C.V., and the report that she prepared for the Fielding case.
The Test for Admissibility of Expert Evidence
[4] The Supreme Court of Canada set out the criteria for the admissibility of expert evidence in R. v. Mohan, 1994 80 (SCC), [1994] 2 S.C.R. 9. More recently, in R. v. Abbey, 2009 ONCA 624, 2009 CarswellOnt 5008, the Ontario Court of Appeal described a two stage process to facilitate application of Mohan:
75 The four criteria controlling the admissibility of expert opinion evidence identified in Mohan have achieved an almost canonical status in the law of evidence. No judgment on the topic seems complete without reference to them. The four criteria are:
relevance;
necessity in assisting the trier of fact;
the absence of any exclusionary rule; and
a properly qualified expert.
76 Using these criteria, I suggest a two-step process for determining admissibility. First, the party proffering the evidence must demonstrate the existence of certain preconditions to the admissibility of expert evidence. For example, that party must show that the proposed witness is qualified to give the relevant opinion. Second, the trial judge must decide whether expert evidence that meets the preconditions to admissibility is sufficiently beneficial to the trial process to warrant its admission despite the potential harm to the trial process that may flow from the admission of the expert evidence. This "gatekeeper" component of the admissibility inquiry lies at the heart of the present evidentiary regime governing the admissibility of expert opinion evidence: see Mohan; R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275; J.-L.J.; R. v. Trochym, 2007 SCC 6, [2007] 1 S.C.R. 239; K. (A.); Ranger; R. v. Osmar (2007), 2007 ONCA 50, 84 O.R. (3d) 321 (C.A.), leave to appeal to S.C.C. refused (2007), 85 O.R. (3d) xviii.
80 In what I refer to as the first phase, four preconditions to admissibility must be established, none of which were in dispute at trial:
the proposed opinion must relate to a subject matter that is properly the subject of expert opinion evidence;
the witness must be qualified to give the opinion;
the proposed opinion must not run afoul of any exclusionary rule apart entirely from the expert opinion rule; and
the proposed opinion must be logically relevant to a material issue.
87 The "benefit" side of the cost-benefit evaluation requires a consideration of the probative potential of the evidence and the significance of the issue to which the evidence is directed. When one looks to potential probative value, one must consider the reliability of the evidence. Reliability concerns reach not only the subject matter of the evidence, but also the methodology used by the proposed expert in arriving at his or her opinion, the expert's expertise and the extent to which the expert is shown to be impartial and objective.
90 The "cost" side of the ledger addresses the various risks inherent in the admissibility of expert opinion evidence, described succinctly by Binnie J. in J.-L.J. at para. 47 as "consumption of time, prejudice and confusion". Clearly, the most important risk is the danger that a jury will be unable to make an effective and critical assessment of the evidence. The complexity of the material underlying the opinion, the expert's impressive credentials, the impenetrable jargon in which the opinion is wrapped and the cross-examiner's inability to expose the opinion's shortcomings may prevent an effective evaluation of the evidence by the jury. There is a risk that a jury faced with a well presented firm opinion may abdicate its fact-finding role on the understandable assumption that a person labelled as an expert by the trial judge knows more about his or her area of expertise than do the individual members of the jury: J.-L.J. at para. 25.
93 The cost-benefit analysis demands a consideration of the extent to which the proffered opinion evidence is necessary to a proper adjudication of the fact(s) to which that evidence is directed. In Mohan, Sopinka J. describes necessity as a separate criterion governing admissibility. I see the necessity analysis as a part of the larger cost-benefit analysis performed by the trial judge. In relocating the necessity analysis, I do not, however, depart from the role assigned to necessity by the Mohan criteria.
[5] In the case at bar, it is agreed that the proposed expert testimony meets the first stage inquiry in Abbey. The debate is focused at the second stage and, in particular, relates to the question of necessity and the weighing of probative versus prejudicial value.
[6] The specific issue raised by the respondent with respect to the objectivity of the expert witness is also part of the second stage inquiry. The Ontario Court of Appeal addressed this issue recently in Alfano v. Piersanti, 2012 ONCA 297:
110 In most cases, the issue of whether an expert lacks independence or objectivity is addressed as a matter of weight to be attached to the expert's evidence rather than as a matter of the admissibility. Typically, when such an attack is mounted, the court will admit the evidence and weigh it in light of the independence concerns. Generally, admitting the evidence will not only be the path of least resistance, but also accord with common sense and efficiency.
111 That said, the court retains a residual discretion to exclude the evidence of a proposed expert witness when the court is satisfied that the evidence is so tainted by bias or partiality as to render it of minimal or no assistance. In reaching such a conclusion, a trial judge may take into account whether admitting the evidence would compromise the trial process by unduly protracting and complicating the proceeding: see R. v. Abbey, 2009 ONCA 624, 97 O.R. (3d) 330, at para. 91. If a trial judge determines that the probative value of the evidence is so diminished by the independence concerns, then he or she has a discretion to exclude the evidence.
Dr. Baker’s Retainer
[7] Dr. Baker was retained by applicant’s counsel to provide a generic report. She explained that in her practice she might be retained to do a fact specific report and to provide an opinion as to whether alienation was present in a specific case. That was not her retainer here. She had no contact with either parent or with any of the three children. She was not told anything about the facts of the case nor provided with any written information or documentation about it. The report that she delivered was not actually prepared specifically for this case. It had been used by and large in its present form in as many 15 or 20 other cases.
[8] This was apparent in that several ostensible factual references in her report did not actually conform to some of the facts as they are asserted to be by the applicant who is tendering the witness. In section 7.12.3, Dr. Baker refers to the rejection of the father by the children. In section 8.5.1, she describes the alienating parent as the support recipient. In section 8.7.2, she comments unfavourably on the outcome of individual therapy the children have already received. This paragraph was acknowledged to have been included in error from another report. In section 9.1, Dr. Baker describes the premise of her recommendations as being that the children will benefit from a relationship with their father.
[9] The report commences with Dr. Baker’s outline of the seventeen common strategies parents use to turn a child against the other parent. Next follows the eight behaviours seen in alienated children. These strategies and behaviours are supported by Dr. Baker’s own research and appear to be well accepted in the literature and social science community.
[10] A difficulty with the generic report is that some of the topics covered are not applicable to this case. I have already had the benefit of receiving the testimony of both parents. Most of the “fact” evidence is already before the court. Accordingly, I am able to identify aspects of Dr. Baker’s report that are unrelated to the facts in the case before me. The section on “The Mind of the Alienated Child and Analogies to Cults” is an example.
[11] The generic report includes a section on “How Common is Parental Alienation?” The report includes another section on “Why Not to Allow Children to Reject a Parent (Why Rock the Boat?). This addresses possible consequences of alienation to a child on reaching adulthood and barriers to future natural reconciliation.
[12] Dr. Baker’s report also includes a discussion of weekly parent-child therapy as an insufficient response to parental alienation and goes on to suggest elements of a solution. These sections of the report include advice and best practice recommendations for therapists. They point out problems that may arise in therapy. Some of the recommendations include requiring children of any age to comply with a parenting plan and to change custody if the plan has not resulted in normalized relationships within three months.
Stage Two Analysis
[13] As noted above, the gatekeeper inquiry requires the exercise of judicial discretion. I must identify and weigh competing considerations to decide whether on balance those considerations favour the admissibility of the evidence.
[14] As to reliability, the respondent submitted that Dr. Baker lacked balance and objectivity because her report did not provide “general information about the theory and research pertaining to parental alienation” which was the stated scope of her retainer. In particular, the respondent submitted that Dr. Baker had failed to report on children who were realistically estranged from a parent as opposed to alienated, and as to how to differentiate between the two. Dr. Baker explained that the differential testing was built into her report in the sense that if the strategies of alienating parents were not largely present and the characteristics of alienated child behaviour were not present, then the child was not alienated.
[15] Dr. Baker testified that she could state her opinion this way:
• Was there a prior positive relationship with the targeted parent?
• Is there an absence of abusive conduct by the targeted parented to the child?
• Are many of the alienating strategies observed in the conduct of the alleged alienating parent?
• Does the child exhibit most of the alienating behaviours?
In her opinion, if the answers to these questions are all “yes”, then alienation is present.
[16] I am satisfied that this is not a case where the Alfano decision would apply. The questions of balance and objectivity raised here are not such as to support a finding that the proposed witness should not be permitted to testify at all for that stand-alone reason. Whether the method of differential testing suggested by Dr. Baker is sufficient in relation to the issue of realistic estrangement is an issue that can properly be left to the trier of fact to weigh and determine at the conclusion of the trial.
[17] The issue to which the seventeen alienating factors and the eight alienated child behaviours relate is one of strong significance in this case. The facts underlying it are very much in dispute. Dr. Sutton refers to parental alienation in his assessment. He concluded that it was not the main source of the children’s rejection of one or other parent. In his report, he does not discuss the theory of or research on parental alienation. Given the complexity of these issues as manifested here, including varying alignments of one or more children to different parents, I am satisfied that this part of the proposed evidence meets the threshold for necessity.
[18] The other aspects of the Baker report do not, in my view, have sufficient probative value to warrant admissibility. Whether parental alienation is or is not common will not assist my determination of whether the Fielding children have been or are being subjected to alienating strategies. The section on cultism and its commonalties with parental alienation is not founded on facts presented in evidence to me. The potential long-term implications of alienation on children when they reach adulthood will not assist me in determining whether the Fielding children have been or are being alienated by one or both of their parents. Long-term impacts are factors that could relate to the current best interests of a child. In my view, presented in the way that they are in the generic report with no factual foundation, unrelated to these particular children, to their individual personalities or experiences, detracts significantly from the value of this portion of the proposed evidence.
[19] The portions of the report with respect to therapy and a potential solution are also ruled inadmissible. As noted, much of this content appears directed to clinicians or therapists. Further, in my view, this type of generic information unrelated to a particular child or fact situation is not helpful and is potentially misleading to the court. The sections are replete with comments and descriptions about what some therapists do or do not do, their level of knowledge and possible alignments with a child or against a parent. This is not helpful to the determinations I must make in this case. The suggested solution purports to be “one size fits all”. Individual factors, such as the age of the child in issue, are not considered. I find this particularly problematic here where the children before the court are now approaching seventeen and fifteen years of age.
[20] The applicant’s counsel suggested that I could simply disregard portions of the report that I considered irrelevant and that he would not question the witness on issues he felt were not applicable to the case. That, in my view, is not a satisfactory approach to admissibility of expert evidence. Accordingly, I ruled that the introductory portion of the report, the two sections relating to the common alienating strategies and behaviours of alienated children and the summary, were admissible and I excluded the balance of the report.
[21] I also restricted the witness from answering hypothetical questions. She had made it very clear that she was only retained to provide her generic report. She testified that she had no opinion as to whether or not alienation was present in this case. She also testified that her intent with the generic report was that it was to educate the judge so that s/he could apply the stated criteria to the facts as found by the judge. This was the basis upon which I admitted the portions of her report noted above. It was my view that were I to allow fact based hypothetical questions to be put to her, so doing would circumvent her expressed purpose in preparing and providing a generic report.
[22] In addition, the factual disputes in the case are complex and nuanced. I thought it unlikely that a hypothetical fact question would be able to capture those complexities and nuances in a manner that would be sufficient to render the answer of more probative than prejudicial value.
J. Mackinnon J
Date: March 8, 2013
COURT FILE NO.: FS-12-00375231
DATE: 20130308
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Victoria Fielding, Applicant
AND
John Craig Fielding, Respondent
BEFORE: Judge
COUNSEL: Gary S. Joseph and Christine Marchetti, for the Applicant
Ilana I. Zylberman and Michael Zalev, for the Respondent
ENDORSEMENT
J. Mackinnon J
Released: March 8, 2013