In M. v. F., the parties dated sporadically from 2006 until June 2009. The parties lived together for approximately two months, during that time frame the Applicant mother (Appellant) became pregnant. The child was 6 years old at the time of the trial and 8 years old at the time of the appeal. The contentious issue at the trial was overnight access of the child by the Respondent father (Respondent in Appeal). The parties had children from other relationships, and they were in a continuous bitter dispute over the parenting of the child of their union.
The father accused the mother of using marijuana. The mother accused the father of alcohol dependence/abuse, narcissism, and that he had previously abused her. Each party had peculiar allegations against each other. Nonetheless, the father was granted overnight access of the child of the union and was completely successful at the heart of the issue in dispute.
Both parties in these proceedings wished to have an assessment conducted pursuant to section 30 of the Children’s Law Reform Act, R.S.O Chapter C.12 (CLRA). Both parties agreed to use the same psychologist, Dr. Burtkowsky, which they used for mediation with respect to parenting arrangements. However, Dr. Burtkowsky was concerned about conducting the assessment after having been involved in the mediation. Both parties signed the appropriate waiver and consents to have him proceed. Two reports were prepared by the aforementioned psychologist, one was prepared a year after the assessment appointment, and a second report was requested and prepared in anticipation of the trial. Dr. Burtowsky’s two reports and oral testimony were given as evidence at trial. The waivers and consents were signed after the mediation was conducted. One challenge to both of Dr. Burtowsky’s reports was whether or not the information received during the mediation, which was obtained during privileged discussions, could influence his opinion.
For trial, the mother retained a second expert, Dr. Jaffe, in order to critique Dr. Burtowsky’s reports, and to raise concerns about Dr. Burtowsky’s “assessment for the court’s consideration.” At trial, the Court found that Dr. Jaffe lacked information, and that even he might have changed his mind if he had more facts. The Trial Judge admitted Dr. Jaffe’s critique into evidence, though the report was given little weight based on the fact that in did not meet the R v Mohan,  2 SCR 9 (hereinafter “Mohan”) standards. The factors to be considered for expert evidence includes: 1) Relevance of the evidence, 2) Necessity in assisting the trier of fact, 3) Whether the expert is properly qualified, 4) Not in breach of another exclusionary rule.
In Armstrong v Armstrong, 2016 ONSC 126, O.J. No. 861, Justice Wein stated that there is “…a strong discouragement against the unnecessary use of "expert" or quasi expert reports in family law cases, whether in the context of issues of custody or in valuation issues. For example in M. v. F., 2015 ONCA 277, Justice Benotto, following Sordi v. Sordi 2011 ONCA 665 and Mayfield v. Mayfield (2001) 18 R.F.L. (5th) 328, (Ont. Gen. Div.) noted that critique evidence "generally -- as here - has little probative value, adds expense and risks elevating the animosity between the parties." In M. v. F., Dr. Jaffe’s critique report was admitted but given little weight.
There are instances whereby an expert’s critique report is relevant. In the 2016 Ontario Superior Court decision, Ascani v. Robert, 2015 ONSC 4585, O.J. No. 3832 (hereinafter “Ascani”), the Court was persuaded to include a report that dealt with the critique of the process and conduct of an investigation. In Ascani, the critique report dealt with the Office of the Children’s Lawyer (OCL) report with respect to the procedure used by the OCL. The Court considered the evidence of the process required in completing an assessment. The admittance of such a report is also ensuring procedural fairness of the process. If Dr. Jaffe’s report solely questioned process and conduct of Dr. Burtowsky’s assessment it likely would have been given more weight, but that was not the case in M. v. F.
There is likely an eagerness of the parties (or their lawyers) to engage in a ‘battling of experts’ to even the playing field, especially when a report is not in their interest. However, given the little weight given to these “critique” reports, engaging an expert for these purposes could prove costly and not worthwhile in the broader picture, unless there is a potential challenge to procedure or process.
For assistance in evaluating your family law matters, please contact Jonathan Solomon (Extension 203) or Sabrina Herscovitch (Extension 204) of our office at 613-722-1313.
Menzies Lawyers is a multi-service Ottawa based litigation firm which can assist with a broad range of civil litigation and family law matters. This blog article by Jonathan Solomon is for informational purposes only and does not constitute legal advice.