CITATION: M.A.B. v. M.G.C., 2021 ONSC 8572

Court File No. FC-17-1728-01

SUPERIOR COURT OF JUSTICE

B E T W E E N:

M.A.B.

Applicant

• and -

M.G.C.

Respondent

REASONS FOR RULING

BEFORE THE HONOURABLE JUSTICE D. CHAPPEL

on November 26, 2021, at HAMILTON, Ontario

APPEARANCES:

B. Fortino

Counsel for the Applicant

M.G.C.

In person

SUPERIOR COURT OF JUSTICE

T A B L E O F C O N T E N T S

REASONS FOR RULING Page 1

Transcript Ordered: .................... November 30, 2021

Transcript Completed: .................. December 1, 2021

Ordering Party Notified: ............... December 2, 2021

FRIDAY, NOVEMBER 26, 2021

CITATION: M.A.B. v. M.G.C., 2021 ONSC 8572

REASONS FOR RULING

CHAPPEL, J.: (Orally)

These are my reasons for judgment in relation to a voir dire that I ordered in the context of the trial of this matter, to determine the admissibility of the expert opinion evidence that the Respondent sought to adduce from Dr. Burke Baird. Counsel for the Applicant contested the admissibility of the evidence of Dr. Baird in its entirety on various grounds. I heard the evidence of Dr. Baird during the voir dire, and the parties agreed that any evidence taken on the voir dire that I found to be admissible could form part of the evidence in the trial proper.

Dr. Baird is a paediatrician with extensive training and experience in assessing children who have suffered or are suspected to have suffered various forms of maltreatment. He has worked as a staff paediatrician with the Child Advocacy and Assessment Program at McMaster Children's Hospital since September 2009 and has been the Child Maltreatment Medical Clinic Lead for that program since August 2014. I will discuss his credentials in more detail later in these Reasons.

Dr. Baird saw the child of the parties’ relationship, J.C., born May 2, 2017 with the Respondent mother and his maternal grandmother on July 11, 2019. He became involved with the child as a result of a referral from Dr. Tanya Solano, a paediatrician working in the McMaster Children's Hospital emergency department. Dr. Solano made the referral to Dr. Baird because the Respondent brought the child to the emergency department and had relayed concerns that he may be experiencing various forms of maltreatment during visits with the Applicant father. Dr. Baird testified that the purpose of his involvement was to carry out a clinical assessment of J.C. and to determine, based on the information provided by the Respondent, whether there were any concerns regarding possible child maltreatment that may warrant further investigation and assessment by child protection professionals. He indicated that his role with respect to J.C. did not extend to formulating or providing any treatment to address any verified concerns.

Dr. Baird wrote a report dated July 29, 2019, setting out his observations and opinions based on his examination of J.C. and the information that he obtained from the Respondent and the grandmother on July 11, 2019. He elaborated on his observations and opinions in his evidence on the voir dire. In addition, Dr. Baird testified that he had further consultations with a Catholic Children's Aid Society worker in May of 2020 due to concerns that the Respondent relayed at that time about marks on the child's knees, thigh and penis. He testified that he reviewed pictures that the Respondent had taken of these marks, and concluded at that time that the bruises on the knees were nonspecific in nature and could have been accidental; that he could not determine from the photograph of the child's penis whether there was an injury; and that the bruise on the child’s thigh did not raise any particular concern respecting possible abuse.

At the outset of the voir dire, I asked the Respondent to identify the nature and scope of the opinions that she sought to adduce from Dr. Baird. She had great difficulty doing so, but with assistance from the Court and based on the report of Dr. Baird, she confirmed that the opinions she wished to adduce were as follows:

First, she sought to adduce opinion evidence regarding the types of behaviours and general functioning difficulties that are commonly observed in young children who spend time in environments where they experience maltreatment, including disorder, anger, violence or other adverse environmental circumstances.

Second, further to the first question, she sought opinion evidence from Dr. Baird as to whether the behaviours and general functioning difficulties that she reported to him respecting the child J.C. in and around visits with his father were consistent with the types of behaviours and difficulties commonly seen in children who have experienced such forms of maltreatment.

Third, she sought opinion evidence from Dr. Baird as to the possible reasons for the difficulties in J.C.’s behaviours and general functioning that she reported after visits with his father.

Fourth, she sought to adduce expert opinion evidence from Dr. Baird regarding the typical features and locations of accidental as opposed to inflicted bruising in young children.

In addition, she sought Dr. Baird’s opinion as to whether

the descriptions that she gave respecting the nature and location of bruising that she allegedly noted on the child J.C. after visits with his father were consistent with accidental or inflicted bruising.

Finally, if her descriptions of the alleged bruises were consistent with inflicted bruising, she sought to adduce opinion evidence from Dr. Baird regarding the possible causes of the marks based on the information that she had provided.

A general review of Dr. Baird’s evidence as set out in his report dated July 29, 2019 and his testimony on the voir dire is necessary in order to address the objections regarding its admissibility. His report included the following:

First he summarized information that the Respondent provided respecting J.C.'s health and developmental progress.

Second, he indicated that he had carried out a physical examination of J.C. and summarized the results of that examination, which revealed no areas of concern.

Third, he summarized in detail numerous concerns that the Respondent had relayed to him about J.C.'s behaviour, emotional presentation, and difficulties with general functioning after visits with the Applicant father.

Fourth, he also summarized in detail concerns that the Respondent had relayed to him about what she considered to be unusual and suspicious bruising on J.C.’s body after visits, including bruising when he was developmentally incapable of pulling to stand or walk.

Fifth, he concluded that the Respondent’s reports respecting the child's behavioural issues and general difficulties with functioning after visits with his father “would be reasonably interpreted as possibly being the result of him experiencing significant emotional distress during the visits.”

Sixth, he also concluded that the report from the Respondent that J.C. had had many unusual bruises in many locations of his body which are not typically subjected to accidental traumatic bruising was also concerning, and that the reports of such bruising being present before the child was independently mobile were of particular concern.

He stated by way of summary that if the information provided to him was accurate, “very serious consideration must be given to the possibility that [J.C.] may be experiencing maltreatment such as neglect, emotional abuse, or possibly physical abuse during visits with his father.

In his viva voce evidence on the voir dire, Dr. Baird again summarized the information that the Applicant had relayed to him about the child J.C.’s alleged challenging behaviours and general functioning difficulties after visits with the Applicant father, and the bruises that she and others had allegedly witnessed on various parts of J.C.’s body after visits. He testified that the types of behaviours and general coping difficulties that the Respondent reported J.C. experienced after visits were consistent with the types of behaviour and functioning difficulties that are commonly seen in children who spend time in environments where they experience maltreatment, including exposure to disorder, anger, violence, neglect, or abuse. However, when the Applicant questioned him about the possible causes of J.C.'s behaviour and issues based on the information that she had relayed to him, he clarified that he was unable to conclude whether they were caused by situations and events that J.C. had experienced while in the care of his father. He explained that the reason for this was that the behaviours and difficulties that the Respondent had relayed to him could also be attributable to various other factors, including the child's genetic emotional makeup, anxieties and concerns from within him rather than from external factors, or the fact that the child was sick or not feeling well. With respect to the issue of bruising, Dr. Baird again summarized the information the Respondent had provided respecting bruising that she alleged she had noticed on the child after visits with the Applicant. He gave evidence as to the features and locations of bruising that could give rise to concern about inflicted injury to young children, particularly in a child who is not yet mobile. He clarified in his viva voce evidence that he was simply not able to give an opinion or thoughts on the specific causes of any of the bruising that the Respondent had described to him, because he would require much more information about the appearance and location of the alleged bruising and the overall context, timing, and circumstances surrounding the alleged injuries to be able to reach such a determination. Accordingly, he clarified that he was unable to give a definitive opinion respecting the possible reasons for the bruising that the Respondent had described to him. Finally, in his viva voce evidence, Dr. Baird testified that he had had subsequent involvement with J.C. because a Halton Society worker had contacted him to discuss ongoing concerns that the mother had reported following visits with the father. He indicated that at that point, he received copies of photographs that the Respondent had taken of marks that the child had allegedly sustained to his knees, thigh, and penis while in the father's care and had been asked for an opinion as to whether they raised any concern about possible inflicted injury. Dr. Baird confirmed that he had reviewed the photographs, and that he had concluded that they did not cause him any concern that the child J.C. had sustained inflicted injury.

By the way of overview, for the reasons that follow, I have concluded that the evidence of Dr. Baird is admissible with some very important exceptions, Specifically, I am not allowing as evidence in the trial portions of Dr. Baird’s report at page 3, under the heading “Formulation and Opinion”. In particular, I conclude that the second and fourth paragraphs under that heading are inadmissible on various grounds.

I turn to the relevant law respecting the exclusionary opinion evidence rule and the admissibility of expert opinion evidence. The opinion rule is a general rule of exclusion. It flows from the evidentiary principle that witnesses may testify as to the facts which they perceived and not as to resulting opinions that they drew from the facts. In the law of evidence, an opinion means an inference from observed facts (see R. v. Abbey (1982), 1982 CanLII 25 (SCC), 68 C.C.C. (2d) 394 at 409; R. v. Collins (2001), 2001 CanLII 24124 (ON CA), 160 CCC (3d) 85 (Ont. C.A)). Opinion evidence is generally inadmissible because it is a fundamental principle of our system of justice that it is for the trier of fact to draw inferences from the evidence and to form their opinions on the issues in the case, not for the witness (R. v. K.(A.), 1999 CanLII 3793 (Ont. C.A.); White Burgess Langille Inman v. Abbott and Haliburton Company, 2015 SCC 23 (S.C.C.), at para. 14). Another rationale for the general rule against the admissibility of opinion evidence is that inferences drawn by witnesses are not helpful to the trier of fact and might even be misleading (White Burgess, at para. 14). However, there are two exceptions to the exclusionary rule against the admission of opinion evidence. First, the opinion of a lay person may be admitted where the facts from which a witness received an impression were too quickly fading in nature to be recollected, or too complicated to be separately and distinctly narrated. A lay witness will be permitted to give an opinion only with respect to matters that do not require special knowledge, and in circumstances where it is virtually impossible to separate the facts from the inferences based on those facts (R. v. Collins, at para. 17). This exception relates to matters on which in everyday life conclusions are reached without conscious deliberation (Graat v. The Queen, 1982 CanLII 33 (SCC), [1982] 2 S.C.R 819 at p. 837). The second exception to the exclusionary opinion evidence rule permits expert opinion evidence on matters requiring specialized knowledge. This exception recognizes that triers of fact sometimes need technical or specialized assistance to properly assess the evidence. The exception permits a witness to provide opinion evidence for the truth of its contents where the evidence is necessary to allow the fact finder to either 1)appreciate the facts due to their technical nature or; 2) to form a correct judgment on a matter if ordinary persons are likely unable to do so without the assistance of a person with special knowledge, provided that the witness is an expert in such matters (R. v. Abbey, at para. 2; R. v. D.D., 2000 SCC 43 (S.C.C.), at para. 47; White Burgess, at para. 15.) The party seeking to adduce opinion evidence on either of these bases has the onus of establishing its admissibility on a balance of probabilities (R. v. Millard, 2018 ONSC 4410 (S.C.J., at para. 36; Children’s Aid Society of Toronto v. A.L., 2021 ONCJ 258 (O.C.J.), at para. 95).

In dealing with issues relating to opinion evidence, the court must keep in mind that not all evidence based on specialized knowledge is opinion evidence. As the Ontario Court of Appeal emphasized in R. v. K.A., at para. 72, “[a] witness who is an expert in a particular field may be called simply to give evidence on the facts he or she has observed without offering an opinion based on those facts. To that extent, and if otherwise admissible, this evidence is not subject to the opinion rule.” By way of example, the court noted that this would be the case where a treating physician is called upon to describe the injuries that they observed on a patient without offering any opinion on the matter. It is only when a witness purports to give an opinion on certain facts that the opinion rule comes into play.

The law has established stringent standards for the admission of expert opinion evidence, due to concerns regarding the potential dangers of admitting such evidence. In White Burgess, the Supreme Court of Canada held that the unmistakable trend of the jurisprudence has been to tighten the admissibility requirements respecting expert opinion evidence and to enhance the trial judge’s gate-keeping role with respect to such evidence. The overall objective of establishing a strong and meaningful gate-keeping role is to weed out unreliable opinion evidence that may distort and prejudice the fact-finding process and would offer little benefit to the trial process (R. v. Abbey). The strict test for admissibility has also evolved due to the following potential risks that have been identified with respect to the admission of expert opinion evidence, which were summarized in White Burgess:

First, there is the risk that the trier of fact will inappropriately defer to the expert’s opinion rather than carefully evaluating it, resulting in the evidence possibly being given more weight than it deserves (R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R 9, at para. 21; White Burgess, at para. 17).

Second, there is a concern that expert opinion may be resistant to effective cross-examination by counsel who are not experts in the field (White Burgess, at para. 18).

Third, there are concerns regarding potential prejudice created by an expert’s reliance on unproven material and facts that are not subject to cross-examination (White Burgess, at para. 18).

Fourth, there is concern about the prejudice that could result from admitting what may end up constituting ‘junk’ science (White Burgess, at para. 18).

Fifth, the law has identified concerns that a contest of experts may distract rather than assist the trier of fact (White Burgess, at para. 18).

Finally, another danger identified with respect to admitting expert evidence is that it may lead to an inordinate expenditure of time and money (White Burgess, at para. 18).

As a result of these general dangers, it is important for the court to carefully delineate the scope of any proposed expert evidence and to ensure strict adherence to those boundaries (R. v. Abbey). In R. v. Shafia, 2016 ONCA 812 (C.A.) and Bruff-Murphy v. Gunawardena, 2017 ONCA 502 (C.A.), leave to appeal dismissed 2018 CarswellOnt 3656 (S.C.C), the Ontario Court of Appeal emphasized that the role of the trial judge in relation to expert witnesses has evolved in recent years, and that they now have a critical gate-keeper function with respect to such evidence. In Bruff-Murphy, the Court stressed that this gate-keeper role is especially important in cases where there is a jury that may inappropriately defer to the expert’s opinion rather than evaluating the expert’s evidence on their own (at para. 2). However, the gate-keeper function must also be carefully exercised by trial judges operating on their own without a jury. Lauwers J. emphasized this point in Brandiferri v. Wawanesa Mutual Insurance et al., 2011 ONSC 3200 (S.C.J.), where he stated in relation to expert opinion evidence that “judges are increasingly aware that for them too, the bell cannot be easily unrung. It is better that inadmissible evidence is simply not heard.” The case law has established that the trial judge’s responsibilities in supervising the admissibility of expert evidence is an important aspect of their overall duty to ensure trial fairness (J.P. v. British Columbia Child and Family Development, 2017 BCCA 308 (C.A.)).

In considering the admissibility of expert opinion evidence, the Court must first consider whether the proposed evidence complies with applicable statutory and court rules. In this regard, Rule 20.2 of the Family Law Rules, (O. Reg. 114/99, as am.) sets out a number of procedural requirements respecting expert opinion evidence. Rule 20.2(1) makes a distinction between a litigation expert and a participant expert. The term “litigation expert” is defined as “a person engaged for the purposes of litigation to provide expert opinion evidence.” “Participant expert” is defined as “a person who is not engaged to provide expert opinion evidence for the purposes of litigation, but who provides expert opinion evidence based on the exercise of his or her skills, knowledge, training or experience while observing or participating in the events at issue.” The essence of a participant expert is that they play a role in the unfolding of the relevant facts in the litigation (LaRoche v. Lynn, 2019 ONSC 6602 (S.C.J.) at para. 35.). In the clinical health context, a participant expert is typically a professional who has provided care, treatment or assessment to an individual and who has had a relationship with that person apart from the litigation, but is called as an expert to testify about their involvement and relay an opinion about that person based on their special knowledge (Westerhof v. Gee Estate, 2015 ONCA 206 (C.A.); G.S.W. v. C.S., 2018 ONCJ 286 (OCJ)). In Westerhof, the Ontario Court of Appeal identified a third type of expert, which is referred to as a “non-party expert.” These are experts who are retained by non-parties to the litigation and who form opinions based on personal observations or examinations that relate to the subject matter of the case, but for a purpose other than the litigation per se.

With respect to litigation experts, Rule 20.2(2) of the Family Law Rules requires that the party wishing to call the expert as a witness at trial must, at least six days before the settlement conference, serve and file the report signed by the expert and containing the detailed information set out in that rule, which includes the acknowledgement of the expert’s duty to the court. This requirement does not extend to participant experts unless their opinions extend beyond the limit set out in the definition of participant expert. The requirements of Rule 20.2(2) also do not extend to non-party experts. However, with respect to participant experts, Rule 20.2(14) provides that a party who wishes to submit an expert as a participant witness at trial shall, at least six days before the settlement conference, serve notice of the fact on all of the parties, and if the party wishes to submit any written opinion prepared by the expert as evidence in the trial, serve the written opinion on all other parties and file it. In addition, they must serve on any other party, at that party’s request, a copy of any documents supporting the opinion evidence the participant expert plans to provide.

In Westerhof, the Ontario Court of Appeal explained that in the civil law context, the differences in the requirements from litigation experts as opposed to participant and non-party experts is that disclosure problems are not as prevalent in relation to the opinions of the latter two. This is because participants and non-party experts typically prepare documents summarizing their opinions contemporaneously with their involvement in the events, and these notes and records can be obtained through the discovery process (Westerhof, at para. 85; see also Imeson v. Maryvale Adolescent and Family Services, 2018 ONCA 888 (C.A.), at paras. 61 to 63, leave to appeal refused, [2019] S.C.C.A. No. 35 (S.C.C.) and St. Marthe v. O’Connor, 2021 ONCA 790 (C.A.), at para. 27).

Where a party seeks to adduce opinion evidence from a participant or a non-party expert, the court must be vigilant in ensuring that the scope of their opinion remains within the proper bounds of such an expert and does not cross into the area of litigation expert evidence. There is often a fine line as to when a participant expert strays beyond the appropriate boundaries of participant expert evidence and into the area of litigation expert evidence (Davies v. Corporation of the Municipality of Clarington, 2016 ONSC 1079 (S.C.J.); Ogwadeni:deo Six Nations Child Welfare v. K.L.H., 2021 ONCJ 339 (O.C.J.), at para. 47). The Ontario Court of Appeal has emphasized that in acting as a gate-keeper with respect to expert evidence, trial judges have an important task of ensuring that participant experts do not exceed their proper role, or if they do, that there is compliance with the applicable rules respecting litigation experts (Imeson, at para. 63). Accordingly, if a participant or non-party expert is to proffer opinion evidence extending beyond these limits, the party seeking to adduce the evidence must comply with the requirements of Rule 21.2(2) of the Family Law Rules with respect to the portion of their opinions extending beyond the limits (Westerhof, at para. 63; Imeson, at para. 63; LaRoche, at para. 44; Simcoe Muskoka Child, Youth and Family Services v. A.H., 2021 ONSC 2789 (S.C.J.), at paras. 70 to 74).

Assuming that the procedural requirements of Rule 20.2 have been complied with, the Court must turn to the substantive admissibility of the expert opinion evidence. The first critical step in determining the admissibility of an expert's opinion evidence is to identify the substance and scope of the opinions that the party proposes to adduce from the expert (R. v. Abbey, at para. 62; R. v. Bingley, 2017 SCC 12 (S.C.C), at para. 17). The boundaries of the proposed expert opinion must be carefully delineated to ensure that any harm to the trial process is minimized (R. v. Bingley, at para. 17). On these issues, Doherty J.A. commented as follows in R. v. Abbey, at para. 62:

The admissibility inquiry is not conducted in a vacuum. Before deciding admissibility, a trial judge must determine the nature and scope of the proposed expert evidence. In doing so, the trial judge sets

not only the boundaries of the proposed expert evidence but also, if necessary, the language in which the expert's opinion may be proffered so as to minimize any potential harm to the trial process. A cautious delineation of the scope of the proposed expert evidence and strict adherence to those boundaries, if the evidence is admitted, are essential.

Once the precise substance and scope of the proposed expert opinion evidence are identified, the judge must proceed to a general two-stage test for determining the admissibility of the evidence. This framework has evolved over the years and was articulated, in its current form, in White Burgess. The two-stage test extends to the opinion evidence of litigation, participant and non-party experts (Westerhof, at para. 64; Imeson, at para. 83; Sainte–Marthe, at para. 32). The first stage of the framework requires that the evidence must satisfy five threshold requirements of the admissibility of expert opinion evidence which were articulated in the case of R. v. Mohan, namely:

1. The evidence must be logically relevant;

2. The evidence must be necessary to assist the trier of fact;

3. The evidence must not be subject to any other exclusionary evidentiary rule;

4. The expert must be properly qualified; and

5. For opinions based on novel or contested science, or science used for a novel purpose, the underlying science must be reliable for that purpose (White Burgess, at

paras. 19 and 23, citing R. v. Mohan, at pp. 20 to 25; R. v. Abbey at paragraph 82; Imeson at paragraph 81; Sainte-Marthe, at paragraph 31; Ogwadeni:deo, at para. 18).

The second general stage of the admissibility analysis is a discretionary gate-keeping step, where the court must weigh the benefits of admitting the evidence against the potential risks involved in allowing it. At this stage, the evidence may only be admitted if the probative benefits and value of the evidence outweigh the potential prejudicial effects of permitting it (White Burgess; Bruff-Murphy, at para. 36; Girao v. Cunningham, 2020 ONCA 260 (C.A.)).

I will now turn to the specifics of each of these two general stages of the analysis. At stage one of the analysis, as I have stated, the evidence must satisfy certain threshold requirements of admissibility. The first threshold requirement is that the proposed evidence must be logically relevant to an issue in the case. In R. v. Truscott (2006), 2006 CanLII 60337 (ON CA), 216 OAC 217 (Ont. C.A.), at para. 22, the Ontario Court of Appeal held that evidence is relevant if, “as a matter of logic and human experience, it renders the existence or absence of a material fact in issue more or less likely.” (see also White Burgess, at para. 23; and R. v Grant, at para. 18; Girao, at para. 94). The second threshold requirement is that the evidence is necessary to assist the trier of fact in the case. Mere helpfulness of the evidence does not satisfy this threshold. The necessity threshold will be met if the Court is satisfied as to at least one of the following:

1. The expert’s opinion provides information that is likely to be outside of the experience or knowledge of a judge or jury;

2. The expert’s opinion is necessary to enable the trier of fact to appreciate the matters in issue due to their technical nature or dimensions; or

3. The matter in issue concerns something that ordinary people are unlikely to form a correct judgment about without assistance from persons with special knowledge. In other words, the trier of fact is unable to draw their own inferences and conclusions about the issues in question based on the facts presented without the help of the expert.

The necessity requirement exists to prevent superfluous or redundant evidence from being presented, and to ensure that the problems often associated with expert evidence are not created needlessly (R. v. D.D, 2000 SCC 43 (S.C.C)).

In considering the threshold criteria of relevance and necessity, the Court should ensure that the proposed expert evidence meets a minimum threshold of reliability to warrant consideration by the trier of fact. An opinion that is so seriously flawed that it does not meet even a minimum threshold of reliability should be excluded at stage one of the admissibility inquiry in considering the factors of relevance and necessity (G.S.W., at para. 141). The rationale for this inquiry is that unreliable evidence cannot support a fact in issue and therefore cannot be relevant or necessary (R. v. K.A. (1999), 137 CCC (3d) 225 (Ont. C.A.); R. v. Abbey; Children’s Aid Society of Toronto v. S.D, 2013 ONCJ 531 (O.C.J.); G.S.W.; Children’s Aid Society of Toronto v. A.L., at para. 160). Factors relevant to the question of threshold reliability include:

1. The validity of any testing, or whether there are any concerns regarding the expert’s interpretation of such testing;

2. Whether any testing relied on was outdated according to current standards;

3. Whether the expert consulted with relevant collateral sources and reviewed all relevant information reasonably required to reach the opinion before formulating the opinion;

4. Whether the expert went beyond the areas of their expertise in formulating the opinions; and

5. Whether there were concerns regarding the methodology that the expert used to arrive at their opinion (Children’s Aid Society of Toronto v. A. L.; Bruff-Murphy, at para. 43; R. v. Abbey, at para. 87; G.S.W., at paras. 14 and 15).

With respect to reliability, the Court should consider whether the proposed opinion essentially amounts to guesswork or speculation.

The third threshold requirement for admissibility is that the evidence must not be inadmissible based on any other exclusionary rule. Two issues often arise at this stage of the analysis. First, objections may arise when the opinion is based all or in part on hearsay evidence. Second, difficulties may emerge if the expert’s evidence appears to be addressing the ultimate issue to be determined. With respect to hearsay, the law is clear that an expert may testify as to facts on which the opinions are based, including hearsay evidence. However, hearsay statements that form the basis of the opinion cannot be used as evidence for their truth. They are simply admissible to show the information on which the expert opinion is based and not as evidence going to the existence and truth of the facts on which the opinion is based (R. v. Lavallee, 1990 CanLII 95 (SCC), [1990] 1 S.C.R. 852 (S.C.C.)). Reliance on second-hand evidence may affect the weight to be given to the opinion. If none of the facts which the expert relied on are proven, the opinion is entitled to no weight (R. v. Lavallee). If some of the facts are proven, but others are not, this will go to the weight to be given to the opinion evidence, but not necessarily admissibility. In regard to the ultimate issue question, opinion evidence that goes to the ultimate issue to be determined is not necessarily inadmissible on that basis alone (R. v. D.D.; R. v. Mohan). The key point is to ensure that the Court, not the expert, makes the final decision on all aspects of the case (R. v. D.D.; R. v. Mohan, at para. 24; R. v. Bryan, 2003 CanLII 24337 (ON CA), 2003 O.J. No. 1960 (C.A.)).

The fourth threshold requirement is that the expert must be properly qualified to give the opinions that the party seeks to adduce from them. This threshold requirement in fact, involves two inquiries. First, the Court must be satisfied that the witness possesses a special or peculiar knowledge and skill beyond that of the trier of fact which they have acquired through study or experience, and which relates to the matters on which they are being asked to provide opinion evidence (R. v. Mohan, at para. 27). The concept of expertise for this purpose is a modest status. The witness may not necessarily have the best qualifications imaginable or be a leader in their field, but must simply possess special expertise that goes beyond that of the trier of fact (R. v. Mohan; R. v. Pompeo, 2014 BCCA 314 (C.A.), at para. 62). The admissibility of expert opinion does not turn on the means by which the expert acquired their special knowledge and skill, provided that the court is satisfied that the witness is sufficiently experienced in the subject matter in issue. The proper practice when tendering an expert witness is to qualify them in all areas in which it is proposed to have the witness give opinion evidence (R. v. Marquard, 1993 CanLII 37 (SCC), 1993 4 S.C.R. 223, at p. 243).

The second part of the qualified expert threshold requirement requires the Court to be satisfied that the expert is willing and able to fulfill their duty to the court to be fair, objective, and nonpartisan (White Burgess, at para. 46.) Underlying this duty are the three related concepts of impartiality, independence, and absence of bias (White Burgess, at paragraph 32). In White Burgess, the court concluded that concerns regarding impartiality, independence, and bias of the expert go to the threshold admissibility of the expert’s opinion evidence, not just to the weight that it should be given (at para. 40). It concluded that a proposed expert who is unable or unwilling to comply with their duty to provide fair, objective, and non-partisan evidence is not qualified to give expert opinion evidence and should not be permitted to do so (see also Bruff-Murphy). It noted that less fundamental concerns about an expert's independence and impartiality should be taken into account at the second stage of the admissibility analysis, when weighing the costs and benefits of receiving the evidence (at para. 2). The concept of impartiality requires that the expert’s opinion reflect an objective assessment of the questions at hand (White Burgess, at para. 32). The independence of an expert requires that their opinion be the product of the expert’s independent judgment, uninfluenced by the person who has retained them or the outcome of the litigation (White Burgess, at paragraph 32). The fact that an expert relies on the work of other professionals in reaching their opinion does not in and of itself result in a lack of independence (White Burgess, at para. 61). In order for an opinion to be unbiased, it must not unfairly favor one party's position over another (White Burgess, at para. 32). As the court stated in White Burgess, the test with respect to bias is whether the expert's opinion would not change regardless of which party retained or called them (at para. 32). The Supreme Court of Canada held in White Burgess that the threshold admissibility requirements respecting impartiality, independence, and lack of bias are not particularly onerous at this stage, and that it will likely be quite rare that a proposed expert’s evidence will be ruled admissible for failing to meet them (White Burgess, at para. 49.) It emphasized that the exclusion of expert evidence at this threshold stage of the analysis should occur only in very clear cases in which the proposed expert is unable or unwilling to provide the court with fair, objective and nonpartisan evidence (White Burgess, at para. 49.) Anything less than clear unwillingness or an inability to do so should not lead to exclusion, but rather should be taken into account in the second stage of the admissibility assessment. In determining whether this threshold has been satisfied, the Supreme Court of Canada provided several general guidelines. First, the fact that the expert has an interest or connection with litigation or a party to the litigation is not determinative. Rather, it is the nature and extent of the interest or connection that matters. Second, evidence that the proposed expert has a direct financial interest in the outcome of the litigation may give rise to concern. Third, the fact that the proposed expert has a very close familial relationship with one of the parties, or that they will probably incur professional liability if their opinion is not accepted by the court, could also be a cause for concern.

The Court held in White Burgess that if there is no challenge at this stage regarding the expert’s impartiality, independence, and lack of bias, this threshold admissibility requirement is met if the expert testifies on oath that they recognize and accept their duty to the Court to be impartial, independent, and biased. If a party opposes the expert evidence on the basis of the expert’s partiality, lack of independence, or bias, they must show a realistic concern that the expert’s evidence should not be received because the expert is unable or unwilling to comply with their duties to the court on these matters. If this realistic concern is established, the burden then shifts to the party seeking to adduce the evidence to establish that the expert is impartial, independent, and unbiased on a balance of probabilities (White Burgess, at para. 48). Concerns respecting apparent partiality or bias are not relevant at this stage. The question to be determined is not whether a reasonable observer would think that the expert is partial, lacking in independence, or biased; rather, the issue is whether the expert’s relationship or interest with the party or with the litigation results in them being unwilling or unable to carry out their primary duty to the court to provided fair, nonpartisan, and objective

assistance. The trial judge must answer this question having regard for both the particular circumstances of the proposed expert and the substance of the proposed evidence (White Burgess, at para. 50). If the Court concludes at this stage that the expert is unwilling or unable to discharge their duty to the court to be impartial, independent, and unbiased, it must find that they are not properly qualified to perform the role of an expert, and the tainted portions of their evidence should be excluded at the threshold stage (White Burgess, at para. 53).

The fifth threshold requirement for admissibility applies in cases where the opinion is based on novel or contested science, or science used for a novel purpose. In these circumstances, the court must be satisfied that the underlying science is itself reliable (White Burgess, at para. 23, citing R. v. J.J., 2000 SCC 51 (S.C.C.), at paras. 33, 35 to 36 and 47).

Turning to the second broad stage of the admissibility framework, the Court must determine at this stage whether the proposed expert evidence is sufficiently beneficial to the trial process to warrant its admission despite potential harm to the trial process that may flow from its admission, (R. v. Abbey, at para. 76; White Burgess, at para. 24; Imeson at para. 82). This part of the analysis is often referred to as the gate-keeper stage. At this step, the court may exclude all or some of the evidence if the overall prejudicial effect to the trial process of admitting it outweighs its probative value. The cost-benefit analysis “is a specific application of the court’s general residual discretion to exclude evidence whose prejudicial effect is greater than its probative value” (White Burgess, at paras. 19 to 20; Bruff-Murphy, at paras. 37 and 65). On the benefit side, the court should consider the cogency of the evidence in relation to the issues to be decided, the importance of the issues, and the degree to which the trier of fact requires assistance. On the costs side of the analysis, the court should consider the potential dangers of relying too readily on expert evidence, as discussed earlier in these Reasons. It should also, once again, assess and weigh the considerations that came into play at the threshold admissibility stage, including those relating to the relevance and necessity of the evidence, its reliability, and any concerns regarding impartiality, lack of independence or bias on the part of the expert (White Burgess, at paras. 34 and 54; Bruff-Murphy, at paras. 38 to 41). At this stage, concerns about impartiality, independence, and bias that may not be compelling enough to require exclusion at the threshold stage should be considered in assessing probative value (White Burgess, at paragraph 45). In addition, at this point in the analysis, the court should consider any concerns that the expert’s opinion evidence could usurp the judge and/or jury’s function of deciding credibility (R. v. Marquard, at para. 49; Imeson, at para. 96). The Court should also weigh any concerns respecting evidence that amounts to oath helping for one party (Imeson, at paras. 97 to 99). The reliability of the proposed opinion evidence is also a critical consideration at the second gate-keeper stage of the analysis, since it will not be worth the time and cost involved to introduce unreliable evidence (per Sherr J., in G.S.W., at para. 134).

Even if the Court concludes that the expert evidence satisfies the test for admissibility, its role as gate-keeper continues throughout the trial process. Therefore, if at any point additional evidence comes to light that would alter the court's decision regarding admissibility of the expert’s opinion evidence, the court may change course and conclude that the evidence should be excluded (R. v. Sekhon, 2014 SCC 15 (S.C.C.), at para. 46; Gruff-Murphy, at para. 61). This principle applies even in the absence of an objection to the evidence by a party (Gruff-Murphy, at para. 70). As part of this ongoing gate-keeper role, the court must ensure that the expert’s opinion stays within the boundaries of the expertise and qualifications that have been recognized by the court at the admissibility stage.

Finally, determining the admissibility of expert opinion evidence is not an “all or nothing affair.” The Court may decide to permit some of the evidence while excluding other portions. In the event that the expert’s opinion evidence is admitted, the court must then determine the weight, if any, that should be attributed to the evidence. All of the factors that were relevant to the admissibility assessment will also come into play in carrying out this task. In addition, at this stage, the court should consider whether the facts upon which the opinion was based have been established. Again, as I have stated, if none of the facts relied on by the expert are proven, the opinion is entitled to no weight. Where some of the facts are proven and others are not, this goes to the weight that should be accorded to the opinion rather than to its admissibility (R. v. Abbey; R. v. Lavallee; City of Saint John v. Irving Oil Company Ltd., 1966 CanLII 64 (SCC), 1966 S.C.R. 581 (S.C.C.)). Once the expert evidence is admitted, the trial judge must ensure that the expert stays within the proper bounds of their expertise, and that the content of their evidence remains properly the subject of expert evidence (R. v. Sekhon, at para. 46).

I turn to the positions of the parties, having regard for the law that I have just reviewed. The Applicant seeks to exclude the evidence of Dr. Baird in its entirety. His position is based on several grounds. First, he submits that Dr. Baird is akin to a litigation expert rather than a participant expert, and that the requirements of Rule 20.2(2) therefore apply to his evidence. He notes that the Respondent did not comply with those requirements. Alternatively, counsel argued that if Dr. Baird is in fact a participant witness, the opinions that he provided regarding possible maltreatment went beyond the proper scope of evidence that he could give as a participant expert. Third, the Applicant argues that Dr. Baird’s evidence does not meet the threshold requirement of the expert being fair, objective, and nonpartisan. He submits that Dr. Baird’s opinions as set out in his report are completely one-sided in that he relied completely on the information provided by the Respondent and did not make any effort to gather other relevant and important information, including meeting with the Applicant father and other significant collateral sources. As a result of this concern, the Applicant states that the report of Dr. Baird fails to meet even a minimum threshold of reliability. Alternatively, as his fourth argument if the Court concludes that Dr. Baird’s evidence satisfies the basic admissibility threshold criteria, the Applicant states that it should be excluded at the second gate-keeping stage of the admissibility analysis on the basis of the fundamental problems respecting its reliability. His position is that Dr. Baird’s failure to obtain all relevant information before reaching his opinions invites the conclusion that the prejudicial effect of admitting them far outweighs any potential probative value of the evidence.

Finally, counsel for the Applicant raised concerns about the Respondent’s failure to provide full and frank disclosure of Dr. Baird’s notes and records respecting his involvement with the child J.C. after he completed his assessment in July 2019. In particular, he noted that Dr. Baird had received emails and photographs from a Children's Aid worker and had provided feedback to that worker regarding his impressions that the photographs did not raise any concerns about possible maltreatment. His position was that the Respondent never disclosed any of this information or any of the emails and photographs, and that this information was critical in order to determine the overall reliability of Dr. Baird’s evidence.

The Respondent argues that the evidence of Dr. Baird is admissible. Her position is that Dr. Baird is a participant witness. She noted that he became involved with the child J.C. as a result of a referral from the emergency room physician, Dr. Solana, after she took the child to the emergency department due to concerns about maltreatment in the father's care. She emphasized that she did not know Dr. Baird, that she did not approach him personally to do an assessment of the child, and that she did not retain or pay him to complete his report. Her position is that Dr. Baird provided his report and opinions as part of his ordinary work as a paediatrician providing consultation services regarding concerns about potential child maltreatment with the Child Advocacy and Assessment Program. Accordingly, she submits that she was not required to comply with Rule 20.2(2) of the Family Law Rules respecting Dr. Baird’s evidence.

The Respondent also argued that the evidence of Dr. Baird meets all of the threshold criteria for the admissibility of expert opinion evidence, and that its probative value outweighs any potential prejudicial effects of admitting the evidence. She submitted that there are no concerns regarding Dr. Baird’s impartiality and independence or about bias. She emphasized that Dr. Baird specifically noted in his report that he was relying solely on the information that she and her mother had provided, and that his opinion would not apply if that underlying information proved to be incorrect. In addition, she noted that Dr. Baird clarified in his oral evidence that J.C.’s behaviours could be attributable to a wide variety of possible factors, and that he could not provide an opinion based on the information that he had received from her as to the cause of the marks and bruising that she had described to him. Her position is that Dr. Baird’s evidence is relevant to the issues in this case, since she has raised numerous concerns about J.C. being exposed to harm in the Applicant’s care, and that it is necessary to assist the Court because Dr. Baird provided important information based on his specialized knowledge and training that would not be within the knowledge or experience of a judge.

I turn to my analysis of the issues based on the law and taking into account the submissions and positions of the parties. I must first deal with the issues raised about the categorization of Dr. Baird’s evidence. In particular, is he in essence a litigation expert which triggers the operation of Rule 20.2(2) of the Family Law Rules, a participant expert, or a non-party expert as that term is defined in Westerhof? I do not agree with the Applicant's argument that Dr. Baird is essentially a litigation expert or more akin to that type of expert. It is clear that the Respondent did not engage him for the purposes of the litigation to provide an expert opinion. The decision to refer the child to Dr. Baird was made by Dr. Solano after examining the child and speaking with the Respondent in the emergency department at McMaster Children's Hospital. There is no evidence that the Respondent even knew about Dr. Baird or his areas of expertise prior to seeing Dr. Solano and being referred to Dr. Baird. Accordingly, the requirements of Rule 20.2(2) do not apply with respect to Dr. Baird’s evidence.

In my view, Dr. Baird was both a participant expert and a non-party expert in this case. For the purposes of Rule 20.2 of the Family Law Rules, the events at issue include the Respondent’s concerns that J.C. was being harmed in the care of the Applicant father and the steps that she took to address those concerns. Dr. Solana referred J.C. to Dr. Baird based on his expertise in the area of maltreatment and based on the concerns the Respondent had reported to her, and to obtain assistance in determining whether there were in fact concerns that J.C. had been abused in any fashion. Part of Dr. Baird’s role was to carry out a physical examination of J.C. to determine if there were any physical signs of maltreatment. The other part of his role was to determine whether the information being provided by the mother raised valid concerns that J.C. had been subjected to emotionally abusive treatment or inflicted harm and, if so, whether a further, more in-depth assessment of the situation was warranted. Although Dr. Baird’s role did not include the formulation and implementation of recommendations and treatment to address the concerns that the Respondent identified, he nonetheless formed part of the medical treatment team that became involved with J.C. to ensure that his safety and well-being were safeguarded. The fact that his involvement was fairly truncated and limited in nature does not, in my view, detract from the fact that he was indeed a participant expert. He was also, in my opinion, a non-party expert in the sense of Dr. Solano sought out his services not only to carry out a physical examination of J.C., but also as a medical consultant, so to speak, to assist other medical professionals involved in J.C.’s care.

As I have indicated, Rule 20.2(14) sets out requirements respecting participant expert evidence. The Respondent clearly provided the Applicant with a copy of Dr. Baird’s report, and no objections were raised respecting the timing of that production or any other requirements of Rule 20.2(14), with the exception of some of the records relating to the later involvement of Dr. Baird with a Children's Aid Society worker.

As I have stated, the Applicant sought to exclude the evidence of Dr. Baird in its entirety on the basis of the test respecting the admissibility of expert evidence. However, it is important to note that there were portions of Dr. Baird’s evidence that were not in the nature of opinion evidence. Specifically, as I have indicated, Dr. Baird carried out a physical examination of J.C. on July 11, 2019 and set out his findings of that examination in his July 29, 2019 report. His clinical observations respecting J.C. on that date are set out at page 3 of his report under the heading “Physical Examination”. Although those observations were based on his specialized knowledge as a paediatrician, they were simply his factual findings based on his examination of J.C. and do not, in my view, fall within the scope of opinion evidence. His observations and conclusions about J.C.'s physical presentation on that date are relevant to the care that he has received from the Respondent and the Respondent’s alleged concerns that the child has suffered physical and emotional abuse while in the Applicant’s care. This evidence, as well as Dr. Baird’s oral evidence respecting his physical examination of J.C., is therefore admissible.

Turning to the actual opinion evidence that Dr. Baird provided during his testimony, as I have indicated, the Respondent proffered Dr. Baird first to give opinion evidence regarding the types of behavioural difficulties and general functioning difficulties that are commonly observed in children who are exposed to adverse environmental circumstances including disorder, anger, or violence. She also questioned him about whether J.C.’s difficult behaviours and problematic functioning after visits fell within the scope of those types of behavioural and functioning challenges. As I have stated, in his viva voce evidence, Dr. Baird gave evidence on these points, but he also relayed opinion evidence as to other possible reasons for the types of behaviours and problems that the Respondent stated J.C. experienced following visits with his father that could have nothing to do with child maltreatment. Dr. Baird’s report and viva voce evidence also included opinion evidence respecting the typical features and location of accidental versus inflicted bruising in young children, and whether the descriptions that the Respondent provided to him respecting bruising that she had allegedly observed on J.C. and photographs that he had received of marks on the child raised concerns that the child may have sustained inflicted harm. As I have stated, in his report, Dr. Baird set out the opinion that if the information provided by the Respondent is accurate and true, there would be concerns that J.C. had possibly experienced neglect, emotional abuse, or possibly physical abuse during visits with this father. Before I address the two stage test for admissibility of expert opinion evidence, it is necessary to address whether the opinions that Dr. Baird gave fall within the proper scope of a participant or non-party expert. I conclude that they do. As a consultant paediatrician, Dr. Baird was called upon by Dr. Solano to assess whether there were any concerns that J.C. may have experienced maltreatment that required further investigation and assessment by child protection authorities. The opinions he gave, including his opinion that the information provided by the Respondent, if true, raised concerns about J.C. possibly suffering neglect, emotional abuse, or physical abuse during visits with his father, were based on the exercise of his skills, knowledge, training, and experience while participating in the care of J.C. as a paediatric consultant at the request of Dr. Solano.

I now turn to the two stage test for deciding the admissibility of Dr. Baird’s expert opinion evidence. I address first the question of whether Dr. Baird possesses the necessary qualifications to give the opinion evidence in dispute. Counsel for the Applicant conceded that Dr. Baird has the professional knowledge and expertise required to provide his opinions. Based on Dr. Baird’s curriculum vitae and his evidence on the voir dire, I have no difficulty concluding that he possesses the expertise necessary for him to be able to formulate opinions on these matters. He has been a paediatrician since 1998 and has specialized in the area of child maltreatment of all forms for most of his career. He has participated in a large number of review committees, other committees and organizations dealing with child abuse and neglect over the years. He has worked with the Child Advocacy and Assessment Program at McMaster Children's Hospital focusing on issues relating to child maltreatment since 2009. He has worked as a staff paediatrician with that program since September 2009, and has been the Child Maltreatment Medical Clinic Lead for the program since August 2014. Since December 2011, he has been an Associate Professor of Paediatrics at McMaster University, and he has also been a staff paediatrician at McMaster Children's Hospital Diabetes Program since August 2010. In addition, since September 2019, he has been a Division Head for the Division of Child Maltreatment with the Department of Paediatrics at McMaster University. He has mentored and taught in the area of child maltreatment at McMaster University since 2017, and has been a speaker on numerous occasions over the years on topics relating to all major forms of child abuse and neglect. Dr. Baird has also been qualified as an expert in the areas of paediatrics and child maltreatment in the Ontario Court of Justice and Superior Court of Justice on at least 40 occasions over the years of his professional practice. Dr. Baird, in my view, easily satisfies the first part of the qualified expert threshold criterion for the purposes of giving the expert opinions in question in this case.

Turning to the threshold criterion of relevance, I conclude that Dr. Baird’s opinions regarding the types of behavioural and functioning difficulties that are commonly seen in children who have experienced maltreatment, and whether the Respondent’s descriptions of J.C.'s difficulties were consistent with those commonly seen behaviours and difficulties, are relevant in this case. I find as well that his opinions respecting the other potential causes and contributing factors to such behaviours and problems other than child maltreatment are also highly relevant and could, in fact, possibly be of assistance to the Applicant’s case. Similarly, I am satisfied that his evidence respecting the typical features and locations of accidental bruising as opposed to inflicted injury in young children, and whether there were concerns about possible inflicted injury to J.C. based on the information provided by the Respondent, is relevant. The Respondent has made very serious allegations that J.C. has suffered maltreatment in the care of the Applicant, and that he has exhibited various forms of emotional distress, behavioural dysregulation and general problems with daily functioning after visits. The evidence of Dr. Baird is pertinent to these allegations, and in fact, once again some of the evidence that he offered on the voir dire may potentially assist the Applicant’s case, as it suggests that there were explanations for the problems identified by the Respondent other than maltreatment. Dr. Baird’s evidence on these issues also meets the threshold test of necessity. The opinions which he provided regarding the behaviours and functioning difficulties commonly seen in children who have experienced maltreatment of various forms, and the typical features and locations of accidental versus inflicted bruising in children, are beyond my experience or knowledge as a trial judge.

However, I conclude that Dr. Baird’s opinions as set out in his report dated July 29, 2019 respecting the possibility that J.C. may have suffered maltreatment while specifically in the care of his father do not satisfy the threshold criteria of relevance and necessity. Dealing first with the necessity factor, I am not satisfied that this opinion is necessary to assist me in drawing the appropriate inferences and conclusions from the facts regarding the sources and reasons for the alleged marks that the Respondent reported to Dr. Baird and the problems that she described regarding J.C.’s emotional dysregulation and behaviours and overall functioning after visits. On the contrary, with the benefit of Dr. Baird’s evidence about the features of childhood bruising, the behavioural and functioning difficulties commonly associated with child maltreatment, and the other possible causes of such difficulties as well as all of the other evidence in this case, I am satisfied that I will be very well positioned to draw any necessary inferences and conclusions relevant to the Respondent’s allegations of maltreatment while in the Applicant’s care, without reliance on Dr. Baird’s comments and opinions in his report regarding possible causation. The opinion about J.C. having possibly experience maltreatment specifically while in the father's care is also, in my view, not relevant in that it does not satisfy a minimum threshold of reliability for trial purposes. On this issue, I stress that in his viva voce evidence on the voir dire, Dr. Baird, in fact, took great care to stress that he could not in fact reach any sound conclusions as to whether the bruising and other concerns that the Respondent had reported to him were attributable to events or conditions that J.C. had experienced specifically while in the Applicant father's care. In fact, as I have already noted, he clearly acknowledged in his viva voce evidence that a much more in-depth assessment of the family circumstances and evidence, including speaking with all relevant family members and collaterals, would be required to formulate conclusions as to whether the reported bruising and J.C.’s behavioural and other problems with daily functioning alleged by the Respondent were attributable, specifically, to events that occurred in the father's care or otherwise. Dr. Baird acknowledged that he had not undertaken this type of assessment, and that it would have in fact been beyond his role to have done so. In essence, Dr. Baird acknowledged in his viva voce evidence that he could not provide any sound opinion attributing responsibility for the reported bruising and other problems that the Respondent reported to him to the Applicant or members of his household specifically. Having regard for these considerations, Dr. Baird’s opinions in his report linking the child's alleged bruises and general difficulties to possible maltreatment specifically in the father's care amount essentially to speculation and are not of any real assistance to me in deciding the issues that I must determine in this trial. They are therefore neither relevant nor necessary and are inadmissible because they do not satisfy those threshold criteria. As the judge in this trial, I will have the benefit of hearing all of the pertinent evidence in the case, including that of the Applicant father and other members of his household, the child's family physician, child protection workers and police officers who have been involved in investigating the mother’s concerns. I am confident that upon hearing all of this evidence, with cross-examination and re-examination, I will be in a better position than Dr. Baird to reach sound conclusions on these matters at the end of the day.

Turning to the other threshold criteria for admissibility, I have considered whether there are any concerns regarding the admissibility of Dr. Baird’s evidence based on other exclusionary rules. I note that much of Dr. Baird’s report recites the information that the Respondent provided to him as part of his interview process. This could raise concerns respecting oath helping if it were adduced to prove the truth of those statements. However, with respect to the information provided by the Respondent during the assessment, I am not allowing it as evidence for the purposes of proving the truth of the matters stated, but rather to establish what the Respondent relayed to Dr. Baird and the factual bases upon which Dr. Baird based his admissible opinions.

Finally, as I stated, counsel for the Applicant argued that Dr. Baird’s evidence should be excluded in its entirety on the basis that it fails to meet the threshold requirements of impartiality, independence, and absence of bias. I do not agree with counsel on this issue. In my view, the concerns

that Dr. Baird did not gather all relevant information and speak to all important family members and collaterals relate to his opinion in his report that the problems identified by the mother were possibly attributable to maltreatment in the care of the Applicant. There are in my view no such concerns respecting the other aspects of his evidence. In addition, those concerns are more relevant to the issues of minimum threshold liability, relevance, and necessity that I have discussed than to the issue of whether Dr. Baird is a properly qualified expert. I find that Dr. Baird was willing and able to fulfill his duty to the court to be fair, objective, and nonpartisan. He was very clear in his written report that his opinions were based solely on information from the Respondent and her mother, and that they would not apply if that information turned out to be inaccurate or incorrect. He set out clear cautions in his report regarding the scope and limits of his impressions and opinions. In his viva voce evidence, he presented as even-handed and balanced in giving his evidence on the relevant issues. In fact, as I have stated, much of his evidence may, at the end of the day, be of some assistance to the Applicant in responding to the Respondent’s allegations.

I note that with respect to the portions of Dr. Baird’s report that I am excluding, even if I did not exclude the evidence at the first stage of the analysis, I would have excluded it at the second discretionary stage of the analysis on the basis that the prejudicial effect of admitting those portions of the evidence outweigh the probative value, for all of the same reasons that I discussed in relation to the first stage. I have considered whether the balance of the evidence that I have not excluded at the threshold stage of the analysis should be excluded at the second discretionary gate-keeping phase. At this point at least, I am satisfied that the probative value of the balance of Dr. Baird’s evidence outweighs any potential prejudice of allowing it into the evidence. The balance of the evidence other than the two specific paragraphs of Dr. Baird’s report that I am excluding will provide considerable assistance to the Court in addressing the allegations that the Respondent has raised. I have addressed the Applicant’s concerns regarding reliability, impartiality and independence and I find that there are no grounds to exclude the balance of the evidence based on any such concerns at this point.

I recognize that Dr. Baird’s evidence is, to a large extent, based on information that the Respondent provided him without input from the Applicant or other individuals who have been involved in J.C.’s life. If I determine during the course of the trial that the Applicant is not credible, and that her allegations and concerns are therefore not substantiated, this may ultimately alter my decision respecting the admissibility of the evidence, or alternatively it may result in me giving it little or no weight. It is therefore open to counsel for the Applicant to make further submissions respecting the admissibility of the balance of Dr. Baird’s evidence that I am admitting at this stage at the conclusion of the trial, as my gate-keeping function with respect to such evidence is an ongoing role throughout the trial process.

For all of these reasons, by way of conclusion, the viva voce evidence that Dr. Baird has given on the voir dire is admissible in the trial proper and will form part of the trial evidence. In addition, Dr. Baird’s report dated July 29, 2019 is admissible as evidence in the trial, with the exception of the second and fourth paragraphs under the heading, “Formulation and Opinion” located at page 3 of the report, which are inadmissible. I have directed the Registrar to make another copy of Dr. Baird’s report, redact the inadmissible portions, and to mark the redacted report as the next exhibit in the trial. Dr. Baird’s curriculum vitae will also be marked as the following exhibit in the trial proper.

...END OF EXCERPT

FORM 2

Certificate of Transcript

Evidence Act, Subsection 5(2)

I, Leanne Osborne, certify that this document is a true and accurate transcription of the recording of M.A.B. v. M.G.C. in the Superior Court of Justice held at 55 Main Street West, Hamilton, Ontario taken from Recording(s) No. 4721_1_20211126 _094655_10_CHAPPEDE.dcr. which has been certified in Form 1.

January 10, 2021 ______________________________

(Date) (Signature of authorized person)