Court File and Parties
Court File No.: FS-20-51 Date: 2020-11-19 Superior Court of Justice - Ontario
Re: N., Applicant And: F., Respondent
Before: Conlan J.
Counsel: Bryan R.G. Smith / Lindsey Love-Forester / Andrew Lokan, Counsel for the Applicant Fareen L. Jamal / Fadwa Yehia / Edward C. Conway, Counsel for the Respondent Estée Garfin / Hera Evans, Counsel for the Ministry of the Attorney General of Ontario
Heard: November 19, 2020
Endorsement – Expert Evidence
I. Introduction
1This family law trial concerns the welfare of two young children, Z. and E., four years and one year old respectively, who are currently living with their mother, F., and others in Milton, Ontario. The father, N., lives in Dubai, United Arab Emirates. Until June 2020, the family lived in Dubai, however, the mother and the children travelled to Canada that month and have been here since.
2There are many issues that confront this Court, including whether to order that the children return to Dubai. The case is not a straightforward one, evidenced by the involvement of the Ministry of the Attorney General regarding an application by the mother to declare a certain provision (section 40) of Ontario’s Children’s Law Reform Act unconstitutional.
3The mother applies to adduce expert opinion evidence from a psychotherapist, Carol-Jane Parker. The proposed field of expertise is the potential impact (emotional and psychological) on infants, including Z. and E., when they are separated from their primary caregiver.
4The application is opposed by the father. A voir dire was conducted, with just Ms. Parker testifying.
II. Decision
5First, let us make clear the burden and the standard of proof on this application. The burden is on the applicant mother, and the standard is on a balance of probabilities.
6Second, let us clearly delineate the test for expert opinion evidence. Very briefly stated, there are two steps. One, the mother must establish the threshold requirements for admissibility – relevance (logical and legal), necessity, the absence of an exclusionary rule, and a properly qualified expert. Two, the judge must engage in a discretionary gatekeeping exercise and assess the probative value of the evidence versus its prejudicial effect. Of course, there is always the requirement as well that the proposed expert be aware of her duty to and be capable of giving fair, objective and non-partisan opinion evidence. White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, and R. v. Mohan, 1994 CanLII 80 (SCC).
7Third, let us apply the test to the facts of this application.
8Despite Ms. Parker’s recent professional disciplinary issues, I am satisfied that she is aware of her duty to and is capable of giving fair, objective and impartial opinion evidence. In fact, her frank admissions to Mr. Smith in cross-examination on the voir dire illustrate her willingness to not overstep her credentials or expertise and say things that may benefit the mother but which she is not qualified or able on these facts to say, such as whether and how the children are attached to their mother and father.
9On relevance, these two children are “infants”, according to Ms. Parker. In addition, the father has admitted that, between him and F., the latter was the children’s primary caregiver up to June 2020. Also, we know from the evidence adduced thus far that the children may be separated from their mother if they are ordered returned to Dubai because the mother has testified that she will not be returning to Dubai. In my view, it is relevant to the issues in this case to hear the evidence of Ms. Parker on the potential impact on infants generally, and specifically Z. and E., when they are separated from their primary caregiver.
10On necessity, I find this to be a close-call. On the one hand, the general proposition that removing an infant from his/her primary caregiver may adversely impact the infant, emotionally and psychologically, would seem outside the ordinary experience and knowledge of only a trier of fact who has been living under a rock. On the other hand, questions of why that is and how that could be mitigated, for example, are likely beyond my knowledge and experience. I have concluded that the balance tips in favour of admission.
11On whether an exclusionary rule applies here, specifically oath-helping as alluded to very capably by Mr. Smith, I think not. I am not so naïve to think that just because F. said something at trial which she also told Ms. Parker must mean that the said something is the truth. Besides, contrary to what Ms. Parker appears to have implied at one stage during her cross-examination on the voir dire, any expert’s opinion is only as good as the accuracy of the facts and assumptions that it is based on, and thus, there may very well be utility in this Court knowing what F. told Ms. Parker.
12On whether Ms. Parker is a properly qualified expert, again, I find this to be a close-call. There is no evidence before this Court that Ms. Parker has ever been accepted by any court as an expert witness in this specific field. In addition, her Curriculum Vitae is largely divorced from this specific question. As well, when she was asked by Ms. Jamal to list her areas of clinical focus, she did not mention this specific field but rather spoke about early childhood development, attachment, and therapeutic work with families and children. Notwithstanding those deficits, I have been careful to keep in mind that Ms. Parker need not be the most qualified, or even one of the most qualified, person(s) to give this opinion evidence. I have concluded that her work experience makes her adequately qualified.
13Finally, I am satisfied that the probative value of the proposed evidence does indeed outweigh its prejudicial effect. I want to know more about the potential impact to infants about being separated from their primary caregiver. Rather, I think that I need to know more about that. It’s important. Having seen the cross-examinations of other witnesses conducted by Mr. Smith thus far in the trial, I have no doubt that he will be prepared to cross-examine Ms. Parker. She is not a surprise witness. And I am entitled to take into consideration that a responding expert witness for the father does exist, Dr. Saini. There will be very little if any prejudice to the father.
14In conclusion, the application is granted, and Ms. Parker shall be entitled to give expert opinion evidence at trial. The field of expertise shall be strictly limited to that described above in these reasons - the potential impact (emotional and psychological) on infants, including Z. and E., when they are separated from their primary caregiver.
15To be clear, the witness is prohibited from opining on anything that relates to any attachment of these children to either parent. That prohibition is entirely consistent with Ms. Parker’s own evidence on the voir dire.
16Further, it seems to me that Ms. Parker should not be commenting about attachment theory or principles generally unless it can be established that the said general commentary is relevant to this case. I doubt it, because common sense suggests that a general attachment principle cannot be applied unless one knows something about the attachment between the child and parent in question.
17Finally, on careful reflection, I have decided that the report of Ms. Parker, dated October 8, 2020, cannot be entered as an exhibit at trial. It is chock-full of information that is outside of the parameters of the permitted scope of Ms. Parker’s evidence. The evidence will have to be adduced entirely viva voce.
18I will discuss with counsel whether some or all of the balance of the voir dire evidence, excluding the said report, can be applied to the trial proper.
19In the event that I find it warranted, I reserve the right to deliver further written reasons for this mid-trial ruling at a later time.
(“Original signed by”)
Conlan J.
Date: November 19, 2020