COURT FILE AND PARTIES

COURT FILE NO.: FC-08-776-01

DATE: 2013/12/10

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Corie Seed, Applicant

AND

Ebrahim Desai, Respondent

BEFORE: Madam Justice J. Mackinnon

COUNSEL: Peter Burnet, for the Applicant

D. Larry Segal, for the Respondent

HEARD: November 25, 2013

Endorsement

MID - TRIAL RULING

[1] The applicant wishes to file the custody and access assessment report dated February 8, 2010, prepared by Nadine Crowley. This assessment was prepared pursuant to a consent court Order issued in a prior court application. The respondent says the report is inadmissible and the author ought not to be entitled to provide opinion testimony due to the wording of Section 30 of the Children's Law Reform Act, R.S.O. 1990, c. C.12, am., and a ruling in Worthington v. Worthington (2000), 2000 22469 (ON SC), 13 R.F.L. (5th) 220 (Ont. Sup. Ct.).

[2] In that case, the trial judge refused to admit a Section 30 assessment which had been done in a prior proceeding between the same parents. The judge said at paragraph 18:

...If one intends to rely upon Section 30(9) as a vehicle by which a custody access assessment report is to form part of the evidence, the wording of Sections 30(1) and 30(9) restrict its admissibility to the application in which the report was ordered. ...

[3] I agree that this assessment is not admissible via Section 30(9). Section 30 establishes a procedure specific to cases where the court orders the assessment done and appoints a specific assessor as having the appropriate qualifications to do it. There are special rules with respect to such a report. These include that: all of the parties receive a copy of it; a copy goes directly into the court record and forms part of the evidence in the case; the witness is not required to testify at trial, unless one or other party insists that they do attend. In addition, pursuant to rule 20.1(12) of the Family Law Rules, O. Reg 114/99, either party may cross-examine the author of the assessment. That said, in my view, Section 30 does not replace the general law with respect to fact or opinion evidence.

[4] From my reading of Worthington, that Court did not intend its ruling so to do. In paragraphs 18 and 19, the judge is careful to state that the assessment, inadmissible pursuant to Section 30, might be admissible under Section 52 of The Evidence Act, R.S.O. 1990, c. E. 23. In paragraph 19, the Court went on to say that subsection 30(15) allows a party to tender other expert evidence if all of the prerequisites for its admissibility have been otherwise satisfied, such as under The Evidence Act or The Family Law Rules

[5] I have also looked at Section 54(8) of The Child and Family Services Act, R.S.O. 1990, c. C.11, as am. In that statute, the legislature has specified that an assessment which was prepared pursuant to a court order in one proceeding is inadmissible in other proceedings, with certain exceptions listed. That is a very different provision from Section 30 of The Children’s Law Reform Act.

[6] In the case before me, Ms. Crowley is an M.S.W. Her report is not covered by Section 52 of The Evidence Act. Rather, whether it is admissible and whether she may testify and provide the court with fact and/or opinion evidence will be determined under the common law and the applicable Family Law Rules. Questions such as whether she was qualified to prepare the report, should she be qualified as an expert witness, whether her proffered testimony is relevant and necessary, are all common law determinations which I may be asked to make later in the trial.

[7] Accordingly, my ruling is that Ms. Crowley is not prohibited from testifying because the assessment was done in a prior application between these parties.

[8] The respondent also asked that the report be removed from the Trial Record. In my view, rule 23(1.4) should be interpreted as providing that an assessment report ordered by the court or obtained by the consent of the parties in the application before the court should be included in the Trial Record. This assessment does not meet that restriction and, therefore, it is not automatically part of the evidence as it would be had it been a Section 30 assessment in this case.

[9] For that reason, I conclude that the report should be removed from the Trial Record. The proper process here is to have the report tendered at the time the witness is on the stand.

Madam Justice J. Mackinnon

Date: December 10, 2013

COURT FILE NO.: FC-08-776-01

DATE: 2013/12/10

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: Corie Seed

Applicant

AND

Ebrahim Desai

Respondent

BEFORE: Madam Justice J. MacKinnon

COUNSEL: Peter Burnet, for the Applicant

D. Larry Segal, for the Respondent

ENDORSEMENT

MID- TRIAL RULING

Mackinnon J.

Released: December 10, 2013