Superior Court of Justice - Ontario

Citation: X v. Y, 2015 ONSC 7681 Court File No.: 36539/14 Date: 2015-12-09

Re: X, Applicant And: Y, Respondent

Before: Trimble J.

Counsel: Martha McCarthy, Counsel for the Applicant Y, Self-Represented

Heard: December 4, 2015

Endorsement: Expert Ruling

[1] On the last day of the trial of this Application, Y requested that I qualify Linda Gottlieb Kase as an expert in family therapy, reunification therapy, alienation, estrangement, parent coordination, child abuse, domestic violence, and interpretation of psychological tests.

[2] Ms. Kase is a very senior social worker, holding a Masters in Social Work and having completed 18 credits toward her doctorate. She is an experienced social worker, having been in the social work field for almost 45 years, and practiced exclusively in the family and child areas. For the last 20 years she has been in private practice as a family and relationship therapist specializing in co-parent counseling, blended parent and single parenting issues, divorce therapy, family therapy, reunification and parental alienation. She is part of the Parental Alienation Study Group, which advises the DSM-V task force on alienation issues. She has participated in and led many seminars instructing social workers, mental health workers, doctors, lawyers and judges on issues of parental alienation, estrangement and other family law issues. She is a member of the American Association of Marital and family Therapists. She is a licenced (by the state of New York) Marital and Family Therapist and a licenced (by the state of New York) social worker. She has the “R” designation, which allows her to diagnose certain DSM-V disorders and conditions.

[3] After listening to Ms. Kase both in-chief and under cross-examination, I ruled that I did not accept her as an expert, as her evidence would not meet the required criteria set out in R. v. Mohan, 1994 80 (SCC), [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. I did rule that the video interviews she conducted with the three children (A, B & C) were admissible, subject to submissions as to their limitations, utility and weight.

[4] I promised to deliver fuller reasons for not accepting her testimony. These are those reasons.

LINDA GOTTLIEB KASE, LMFT, LSCW-R

[5] In determining whether an expert may testify, the Court must apply a two-step process. In the first step, the expert must meet the four requirements set out in Mohan. In the second step, the judge exercises his/her discretionary gatekeeping function. Both steps indicate that I should exclude Ms. Kase’s evidence.

Step 1:

[6] According to Mohan, the proponent of evidence must establish the threshold requirements of admissibility; namely that the evidence is relevant, necessary, that there is no applicable exclusionary rule, and that the expert is properly qualified to give the evidence. All these criteria must be met for the evidence to be admissible.

[7] I will deal with the requirements that there be no exclusionary rule and that the expert be properly qualified. I will address necessity under the Step 2 analysis. There is no doubt that Ms. Kase’s evidence is relevant.

a) An Exclusionary Rule:

[8] Ms. Kase’s proposed evidence does not meet the criteria in the Family Law Rules, Rules 20.1(10)6 or 7, and should not be admitted. I have the power to relieve against non-compliance with the Rules, which I decline to do.

[9] Rule 20.1(10)6iii requires that an expert list in his/her report all documents relied upon in reaching their opinion. In her report, Schedule A, Ms. Kase listed the documents she reviewed. In her examination and cross-examination, she said that she relied on the “complete clinical file”. She said that she had reviewed the police report. The police report was not listed in her Schedule A; neither are Mr. Hurwitz’s, Ms. Hayes’ or Ms. Geraldo’s notes that were part of Mr. Hurwitz’s file.

[10] Rule 20.1(10)7 requires an expert to provide a signed Acknowledgement of Expert’s Duty (Form 20.1).

[11] The only experts who are relieved of the requirements of Rule 20.1(3) to (12) are assessors providing an assessment under s. 30 of the Children’s Law Reform Act, section 54(1.2) of the Child and Family Services Act, or s. 112(1) of the Courts of Justice Act.

[12] Ms. Kase admitted that she was not retained to provide an assessment or opinion under any of these statutory provisions. Indeed, she was not aware of them. Accordingly, she must comply with Rule 20.1. She says that she did not know of the requirements of Rule 20.1, and was never sent the form to consider. This is immaterial. She has not acknowledged her duty to the Court.

[13] I have the power to waive compliance with the Rules (see Rule 1(8)), especially where the failure to comply was an irregularity given the prime objective of the Rules to enable the court to deal with the case justly.

[14] In this case, that Ms. Kase did not file a signed acknowledgement arises from the fact that she was not advised she needed one. However, her failure to file one is not an irregularity. She could not have signed the acknowledgement even were it sent to her. She said in cross- examination several times that she was not an expert who owed a duty to the Court or either party. She said that she was an “advocate” for the children. I will return to this statement.

b) A Properly Qualified Expert:

[15] Ms. Kase is not a properly qualified expert. She lacks the independence and objectivity required by Rule 20.1(1)(a) and by the jurisprudence.

[16] In White Burgess, the Supreme Court of Canada set out the duties of an expert. The Supreme Court says that Rule 4.1.01(1)(a) of Ontario Rules of Civil Procedure provide the most complete and succinct statement of an expert’s duty. It is to provide opinion evidence that is fair, objective and non-partisan. This duty prevails over any duty to a party, or non-party: see White Burgess, at paras. 30 and 46. Implicit in this is that the expert must be impartial, independent and have no bias: see White Burgess, at para. 32. The expert must provide an objective assessment of the questions at hand. It must be independent in that it is the product of the expert’s independent judgment, uninfluenced by the person who retained him/her. It must not unfairly favour one party’s position over another. In any event, the expert’s primary obligation is to the Court: see White Burgess, at para. 46. These requirements are incorporated into Rule 20.1(1) and (2) of the Family Law Rules, which is similar to Rule 4.1.01 of the Rules of Civil Procedure.

[17] The Supreme Court also says that a proposed expert’s independence and impartiality go to admissibility. If the initial test is met, any remaining concerns about the expert’s impartiality and independence should be considered under the second step and go to the weight attributed to the expert’s evidence: see White Burgess, at para. 45.

[18] Normally, an expert is asked in their examination in-chief to affirm his/her duty to the Court. Once that is done, the burden shifts to the opposing party to show that the expert lacks the required objectivity, or is unable or unwilling to discharge their onus to the Court. If the opponent does so, the burden shifts back to the proffering party to show that the evidence is not tainted by lack of impartiality or bias: see White Burgess, at para. 48. The Supreme Court says that the threshold requirement is not onerous. A connection to a party, an interest in the outcome, or mere employment by a party is not sufficient. Exclusion of an expert for failure to meet the duty of impartiality to the Court should occur in only rare cases: see White Burgess, at para. 49.

[19] Ms. Kase is just such a rare case, based on her examination in-chief and cross-examination on her qualifications. I say this for a number of reasons:

1. She was not asked to affirm her duty to the Court to provide evidence that is independent, impartial and unbiased.

2. She is both unwilling and unable to carry out her duty to the Court to provide fair, non-partisan and objective evidence. She admitted – indeed insisted – that her duty was to the children, not the Court. She was unaware of the Rule requirement that her duty was to the Court. She insisted that she was an “advocate” for the children.

3. There is a likelihood that her opinion in this matter was formed before she conducted her review of the file. At Exhibit D to an Affidavit she filed in an interlocutory step in this matter, sworn October 31, 2015, she provided a letter which she averred was true. In that letter, dated October 3, Ms. Kase said that she reviewed section 30 assessor Howard Hurwitz’s C. V. online and, based on that, said that Mr. Hurwitz was not an expert in parental alienation. She referred to him as a “non-specialist” in alienation. She said:

“… when the “expert” but non specialist expert undertakes a family assessment for alienation, he or she generally succumbs to a number of cognitive and clinical errors that typically occur resulting from the counterintuitiveness (sic) of alienation cases. For example, a very common error [of which she later accused Mr. Hurwitz] is to mistake alienation for estrangement. I have seen just this kind of mix-up time and time again in the 70+ forensic evaluations I was hired to critique after the non-specialist in alienation arrived at assessments and conclusions that were diametrically opposed to the actual family dynamics.”

She was not present for Mr. Hurwitz’s qualification voir dire. She did not have available to her evidence put forward concerning his work not detailed in his C.V. She continued:

“Although I did not yet read Mr. Hurwitz’s evaluation, I can hypothesize that he confused alienation for estrangement and succumbed to many of the cognitive and clinical errors that Dr. Miller described in the chapter I referred to above. Mr. Hurwitz’s C.V. does not document any specialized training in family therapy nor in the sub-specialty of parental alienation.”

She concluded:

“I look forward to reading Mr. Hurwitz’ evaluation of this family, at which time I will better determine if his assessment and conclusions were accurate or were backwards.”

At the time she “hypothesized” Mr. Hurwitz’s opinion, she, clearly, had not read the “complete clinical file” that she referred to in her cross-examination or the information listed in Schedule A to her opinion. Her closing statement implies that her hypothesis of Mr. Hurwitz’s opinion (formed without the benefit of his report or file) was an opinion, not mere hypothesis.

4. Ms. Kase’s choice of language indicates a judgmental approach, inconsistent with an unbiased, impartial approach. In her October 3, 2015, letter referred to above, she uses phrases such as:

a. “This is not to state that Mr. Hurwitz would not meet the criteria of “expert” in mental health IN GENERAL as the standard for an “expert” is rather low: that being that he has more knowledge than the average person on the street regarding theses clinical issues.” Ms. Kase admitted that she did not know what the standard was for an expert in a Canadian or Ontario Court.

b. She defined a group of a few, specific individuals who would qualify as experts in parental alienation, and referred to others who have offered opinions in legal matters as experts used in inverted commas (i.e. “experts”). This is a dismissive term suggesting that those not numbering in her list of experts are not experts. From her cross- examination, it was clear that many of these “experts” had been accepted by Courts as properly qualified.

c. “In other situations, the “expert” had acquired only a superficial knowledge of alienation and rushed to judgment that the case was one of alienation when actually it was estrangement.”

5. Ms. Kase’s use of language in her report of November 2, 2015, leads to the same conclusion:

a. Page 2: “Unfortunately, Mr. Hurwitz’ (sic) evaluation contradicts the adage “A little knowledge is a dangerous thing. Drink Deep or taste not the Pierian Spring.”

b. Page 2: She accepts A’s self-report that she did not see her mother for three weeks post arrest. This is not true. It is ironic that Ms. Kase accused Mr. Hurwitz of accepting self-report evidence without finding corroboration in collateral source information.

c. Page 6: Ms. Kase improperly identifies with the subject. “As a woman, I can assert that each time she [Y] faced X or was presented with a situation that provoked flashbacks to the events of 2/22/14, it was as if she were experiencing the same trauma again – just like a rape victim does each time she must tell her story to lawyers, doctors and in testimony.”

d. Page 8 & 11: She again refers to “false Domestic Violence allegations.” On page 11, she refers to the “domestic violence charges” having been dismissed. There was no dismissal. They were withdrawn.

e. Page 12: She accepts Y’s report of what transpired concerning the February 22, 2014, charges, and rejects his explanation. This is the job of the Court, not the expert. She adopted the position of advocate for Y, as well. She says, in rejecting his evidence “…how credible is this comment coming from the man who had orchestrated the events of 2/22/14 to have her taken away by the police in handcuffs in front of the children. How hurtful, humiliating, and frightening! Even if the domestic violence claims were legitimate (they were not, of course, as they were all dismissed), a father who was truly concerned for the best interests of his children would not have arranged for his wife’s arrest in front of them. This conduct was calculating and deliberated to produce the greatest amount of humiliation for Y – even to the detriment of their children. In fact, this conduct can be typical of a borderline and narcissistic personality disorder.”

f. Page 16: Ms. Kase admits that she learned between the time she conducted her interviews of the children and the date of her report that X had custody, and that she did not have his consent to conduct the interviews. She justified using the interview by saying it is her protocol to do so, that X would not have consented in any event, and the children were not harmed by the interviews. She justified using the interviews for which there was no consent of the custodial parent: “The weight of extensive documentary evidence to exonerate Y from having engaged in alienation was, indeed, more than sufficient for me to have formed my opinions with a high degree of clinical certainty. However, by also interviewing the children, I was able to reach the highest possible degree of clinical certainty for this conclusion. Because the children’s (sic) lives are hanging in the balance, it was incumbent upon me to avail myself of all the evidence available so that I was able to reach my opinions and finding with the highest degree of clinical certainty. That additional evidence was the children’s interviews.” Of X, without any evidence, she says. “I have found in these cases, when people have something to hide, they will orchestrate a catch 22 situation for the evaluator/assessor: that is, they deny consent for the children’s interviews then argue that my findings are incomplete and misguided because I had not interviewed the children! A double bind situation-or attempted double bind situation-has been my experience every time in alienation cases: the alienating parent or the parent who is falsely alleging alienation have always attempted to block my interviewing of the children.”

Step 2:

[20] In White Burgess, beginning at paragraph 54, the Supreme Court said that even if the expert evidence passed the admissibility analysis from Mohan, the Court still had a gatekeeping function. In this step, the Court must balance the helpfulness of the evidence against the risk of the dangers that are associated with expert advice.

[21] Even if I had found that Ms. Kase had the independence and impartiality required of an expert, I would have exercised my discretion and gatekeeper function to exclude her evidence under Step 2 for a number of reasons.

[22] First, her opinion was largely a critique opinion. She admitted this, although she also referred to it using the American term of a “Peer Review” opinion. To call her report a “Peer Review” is, at best, a misnomer, or more cynically, an attempt to cloak a critique report in a more respectable mantle.

[23] In Ontario, Courts have generally refused to admit critique reports under the Mohan principles. It appears that the Courts have held that they are not necessary. Mayfield v. Mayfield (2001), 2001 28213 (ON SC), 18 RFL (5th) 328 (Ont. S.C.), is the seminal case. Justice Wein held that critique reports are rarely admissible. She said in paragraph 44, that in “…most cases, it is simply not necessary or appropriate to have the parties bring forward evidence of a collateral critique…. It will rarely, if ever, be “necessary” to introduce the critique as original evidence or to call the critique as a witness”. This view was accepted by the Court of Appeal in Sordi v. Sordi, 2011 ONCA 665, [2011] O.J. No. 4681, and most recently in M. v. F., 2015 ONCA 277, 58 R.F.L. (7th) 1, in which Benotto J.A., speaking for the Court, said at paragraph 34, “I too support the view that critique evidence is rarely appropriate. It generally – as here – has little probative value, adds expense and risks elevating the animosity between the parties.”

[24] Benotto J.A.’s concern that critique reports elevate animosity between the parties is exactly what has occurred in this case.

[25] Of course, critique reports can be admitted, as in Ascani v. Robert, 2015 ONSC 4585, 66 R.F.L. (7th) 149. In that case, one of the central issues in the case was the adequacy or propriety of OCL’s methodology, and the critique report focused on that issue. Therefore, it was not a collateral critique (to use Justice Wein’s words) on the OCL’s report. In the case before this Court, Ms. Kase’s report, in the main, is an attack on the insufficiency of Mr. Hurwitz’s expertise. Ms. Kase’s evidence, if relevant, ought to have been called in the qualification voir dire for Mr. Hurwitz.

[26] Second, Ms. Kase’s language, as indicated above, suggests a lack of independence, suggesting that her evidence would have been more inflammatory than probative.

[27] Third, there was ample evidence to suggest that her opinion was not sound and her evidence not reliable. For example:

a) She failed to seek X’s permission to interview the children. She assumed that since the parents were not divorced, there was joint custody, and that she needed only one parent’s consent. I have difficulty accepting that Ms. Kase, an experienced social worker and professed expert, should have made this assumption. If she made it, she should have stated it in her report as an assumption. The assumption was wrong. X had interim sole custody.

b) She said that she looked online to see what the standard was in Ontario for determining the best interests of the child, yet could not say from where it came. She was unaware of the statutes governing child custody and access in Ontario.

c) She was positional, and when cross-examined, became imprecise. She referred in her report and cross-examination to the “false charges” X had the police lay against Y. She was cross- examined as to how she knew the charges were false. She said she read the police report. She did not list it in Schedule A to her report as something she relied on. She could not point to it. She was cross-examined on what she meant by “false charges”. She responded that the charges had been dismissed. It was pointed out to her that the charges were withdrawn and never adjudicated. Ms. Kase’s response was “withdrawn, dismissed, whatever”. Then she minimized her use of “false charges” by saying that what was important was that the children saw their mother arrested.

d) Ms. Kase was asked to produce her file including her notes. Her answers to questions on this subject bordered on the absurd. She said in emails, and in the witness box that she had no notes. She took her notes on her iPad, directly, which were then turned into a report. These electronic notes were never produced.

In cross-examination, she denied making any notes of her interviews with the children. Instead, she videotaped the Skype interviews she conducted. I was shown three clips from A’s interview comprising perhaps three minutes in total. Ms. Kase was shown in a small window at the bottom of the screen, the majority of the screen showed A. In each clip, Ms. Kase asked A a question. While A spoke, Ms. Kase put her head down. I could not see her hands. In all three clips, however, while Ms. Kase’s head was down, I could hear the scratching of a pen on paper. Ms. Kase’s head position and shoulder movements were consistent with writing, not typing on an iPad. In the last clip shown, Ms. Kase, clearly, is holding a pen.

Until Ms. Kase was directed to the pen, she strongly denied that she was taking handwritten notes. Once the pen was pointed out she had a number of responses. She said at first she must have been working on something else while A was answering. Later she said she ‘could have been’ working on something else. Later still she said that she was working on another court case. Her response in cross-examination was less consistent with the sounds and picture on the video clip than it was consistent with trying to explain the inexplicable.

e) She made statements of fact, which were not true, leading to the inference, at best, that she spoke in hyperbole, or at worst, was being untruthful.

She said that she had been accepted as an expert in three cases in Canada, one in B.C. and one in Ontario, which was to go to trial in January. I asked her about the third. She indicated that this case was the third. She was not qualified as an expert in this case at the time she made the statement. With respect to the other Ontario case, the only case in which her name appears is Courville v. Courville, 2015 ONCJ 535, [2015] W.D.F.L. 6094. She was not accepted as an expert. She offered a critique report of a s. 30 Assessor’s report, which was being used in a motion to alter an interim custody and access order. Starr J. did not comment on the report; rather, she held that the issue should be decided at trial. The B.C. case is L.K.D. v. M.A.K., 2015 BCSC 226, [2015] B.C.W.L.D. 2435. Ms. Kase said not only that she was qualified by the Court as an expert, but that her report helped decide the case. It was just the opposite. Ms. Kase never appeared in Court. Harvey J. criticized Ms. Kase’s report. It was based on a document review and phone call with the father. There were no interviews of the mother, the children, or collateral sources of information. He said that her report was “woefully deficient in its description of factual assumptions on which the writer’s opinion was based, and the opinion offered was for the most part advocacy, stating conclusions without supporting foundations, and doing so in a manner which usurped or purported to usurp the role of the Court in making findings of fact.” He said that “…much, if not all of the report was inadmissible as a result.” Ms. Kase’s response to the decision was to dismiss it by saying that she was ‘told’ that her report was accepted by the court.

f) Her professional ability to conduct her phone interviews of the children and Y is suspect. Ms. Kase said that there is nothing inappropriate, professionally or otherwise, about conducting Skype interviews of clients in Ontario. She was categorical.

Ms. Kase confirmed that her regulating body was the New York State Office of the Professions. She was shown a document called “NYS Social Work Practice Alerts & Guidelines: Telepractice”. She did not know this particular bulletin, but confirmed that it emanated from the governing body’s education wing. The bulletin defines telepractice as the use of “telecommunications” to provide assessment, diagnosis, intervention, consultation, and information across distance, and would include providing psychological, mental health, marriage and family, psychoanalytic psychotherapy and social work services via technology such as telephone, email, chat and videoconferencing. It raised jurisdictional concerns and advised the practitioner to make sure that s/he is meeting competency and licence requirements when practicing across state and national borders. It advised that for a practitioner to provide services in New York State by telepractice s/he must be licenced in New York State. Ms. Kase admitted that she is not licenced as a social worker in Ontario. By New York standards, Ms. Kase’s use of teleconferencing with clients in Ontario may very well constitute practice in Ontario. Ms. Kase made no inquiry as to the regulatory, licencing or other legality of her providing services in Ontario to Ontario clients. I make no finding on this point. I merely note that Ms. Kase’s ability to conduct the interviews of the children may be teleconferencing, and may be in violation of her regulatory body’s requirements. She did not know of this bulletin, and believed that she was within regulatory requirements.

VIDEOS OF CHILD INTERVIEWS

[28] In submissions, the father argued that the video statements or interviews Ms. Kase conducted should not be received into evidence. They were taken without his knowledge and consent. The interviews were conducted improperly. The questions asked were leading. Ms. Kase offered assessment, diagnosis and therapy in Ontario, where she is not licenced.

[29] I did not rule on the issues raised about the video interviews of the children. I was shown only three clips of about one minute each. Seeing three minutes of over 90 minutes of video in total, is an insufficient sample on which to rule on the objections the father made.

[30] As this case involves access and custody of the children, their best interests are at stake. The videos represent an expression of their preferences and views of custody and access, which may be of use to the Court. It is important to consider their views and preferences in reaching my determination on custody and access. I ruled that they were admissible. I did not rule, however, on their value. I welcome submissions in closing argument as to what use I can make of, or weight I should assign to the videos.

Trimble J.

Date: December 9, 2015