M. v. F., 2015 ONCA 277

In this high-conflict custody and access case, the Ontario Court of Appeal evaluates the right of parties to rebut an expert’s assessment report using ‘critique’ evidence of another expert.

Background

The parties never married but had a toxic on-again/off-again relationship with significant domestic violence and substance abuse issues.  They had a six year old son who had spent most of his life embroiled in the midst of their parenting dispute.

The main issue at trial was whether the father should have overnight access since the boy lived primarily with the mother.  The boy had been seeing Dr. Butkowsky, a child psychologist, since he was a baby.  The parties retained Dr. Butkowsky to prepare an assessment pursuant to Section 30 of the Children’s Law Reform Act.  The doctor’s opinion in the report was that overnight access was necessary to facilitate the enhancement and development of the child’s relationship with his father.  He further recommended ongoing counselling for the entire family, but did not deal with the issues of alleged domestic violence and its impact on the parenting plan.  An updated report was later submitted for trial.

The mother retained Dr. Jaffe, a leading expert on domestic violence.  Dr. Jaffe’s role was limited to providing an expert’s critique of Dr. Butkowsky’s assessment for the court’s consideration as he had never met the child nor the parties in a clinical setting.  He opined that overnight access should not occur until the father took responsibility, expressed genuine remorse and completed treatment in connection with the domestic violence.

The two reports were admitted at trial.

The trial judge concluded Dr. Butkowsky’s recommendations better served the child’s best interests.  Since the domestic violence allegations had no bearing on the father’s ability to parent during the night, he was granted overnight access.

On appeal, the mother argued that the trial judge’s conclusion was wrong as the evidence did not support granting overnights.

Analysis

The Court was satisfied that the trial judge did consider the allegations of domestic violence in his finding that said allegations would not impair the father’s parenting ability.

Different judges have approached the admissibility of critique evidence differently in the past.  Some have admitted it then discounted its weight while others have determined it inadmissible because it fails the criteria for admissible expert evidence under R. v Mohan (SCC).

The Court of Appeal in Sordi v Sordi¸ accepted Justice Wein’s view in Mayfield v Mayfield that critique evidence in family law cases will ‘rarely’ be admissible because “[i]n most cases, it is simply not necessary or appropriate to have the parties bring forward the evidence of a collateral critique.” As Justice Epstein Sordi notes, the main value of critique evidence for a party is to impeach the credibility of a court appointed expert, a function is already available through cross-examination and argument.

Applying these considerations to Dr. Jaffe’s report, the Court found that the trial judge correctly gave the report very little weight.  This is especially true given that Dr. Jaffe’s self-described task was to ‘raise concerns’ about Dr. Butkowsky’s court-appointed assessment despite having never actually met the child.  In such circumstances, Dr. Jaffe’s report likely could not satisfy the Mohan criteria for admissibility in the first place.

On the other hand, Dr. Butkowsky’s two reports were found to be thoughtful and comprehensive.  They were preferred over Dr. Jaffe’s report in light of the fact that Dr. Butkowsky had known the boy and the family for nearly all of the child’s life.  His recommendations and proposed parenting plan were comprehensive, recognizing the dysfunctional relationship of the parties and provided realistic guidance for implementation.

As such, the Court upheld the trial judge’s decision to grant the father overnight access.  It also upheld the view that critique evidence is rarely appropriate in family law matters, noting that “[i]t generally – as here – has little probative value, adds expense and risks elevating animosity between the parties.”