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Canadian Journal of Family Law

First Page

71

Document Type

Article

Abstract

There is significant controversy about the use of experts in child-related disputes in family and child protection proceedings in Canada. The 2015 Lang Review of the Motherisk Laboratory at Toronto's Hospital for Sick Children concluded that experts retained by child protection agencies were introducing unreliable expert testimony about parental drug and alcohol use. The recent decision of Ontario Court of Appeal in M. v. F. suggested that evidence from a party-retained expert critiquing the opinion of a court-appointed psychologist is "rarely" helpful or admissible. This paper addresses these and related controversies about the use of experts in child-related cases. It reviews recent developments in the law governing the admissibility of expert evidence, with a particular focus on the 2015 Supreme Court decision in White Burgess, and the role of the judge as a "gatekeeper," responsible for excluding biased or unreliable expert testimony. The paper explores the unique role played by court-appointed experts in child-related disputes. It is argued that there should be a continued role for experts retained by one parent to critique a report prepared by a court-appointed expert in a child-related case; nonetheless there is an obligation for party-retained experts to provide unbiased and reliable evidence, and avoid being "hired guns." This critique role may be especially important when the state has been involved in the court process, either as a party in a child protection proceeding or by arranging for a particular court-appointed professional to undertake an assessment. It is also argued that there is a strong Charter based argument that indigent parents in child protection proceedings may be entitled to a court order for funding to retain their own experts to testify to counter evidence put forward by experts funded by the government.

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