Changes to Family Law Rules a start, but more needed | Tammy Law
Wednesday, September 25, 2019 @ 3:05 PM | By Tammy Law
Hidden within Rule 33, the only section devoted specifically to child protection, is another important change: a direction to courts to consider whether a preliminary examination of expert opinion evidence on a motion in a child protection case is required.
The connection between these rule changes and recent events in the child protection system is important to emphasize. Procedures and rules adopted by courts play an integral role in ensuring that procedural and substantive justice are achievable outcomes for litigants.
Nowhere is this more true than in child protection, where both Justice Susan Lang’s Report of the Motherisk Hair Analysis Independent Review and Justice Judith Beaman’s Report of the Motherisk Commission, Harmful Impacts: The Reliance on Hair Testing in Child Protection explained, in detail, the massive miscarriages of justice that can occur where expert evidence is uncritically relied upon in court proceedings.
In her 2015 report, Justice Lang estimated that between 2005 and 2015, over 9,000 individuals tested positive from unreliable hair-strand testing done at the Motherisk Drug Testing Laboratory. Most of these individuals had child welfare involvement. The sheer number of these unreliable tests made Motherisk one of the most significant miscarriages of justice in child protection in recent years.
While what happened with the Motherisk Drug Testing Laboratory may seem to be an isolated case to some, expert evidence, in fact, plays a significant role in child protection proceedings. In addition to the many professionals who may be involved in a child protection case, Children’s Aid societies also sometimes retain experts to write “parenting capacity assessments” (PCAs).
These PCAs can significantly influence the trajectory of a child protection file and are often influential in the ultimate decision made by the courts. Such assessments have recently become more controversial as the qualification of the experts, the methodology used and the validity of the testing have increasingly come under scrutiny. Having expert evidence rules that allow parents’ counsel to properly challenge such opinions and assist judges with their gatekeeping role are critical.
The current amendments to the expert evidence rules are a good first step to preventing future miscarriages of justice. Many of the amendments appear to be specific responses to recommendations made by the Motherisk Commission and are significant improvements to the previous rules.
For example, changes such as requiring experts to more specifically explain the science and testing, including the influence personal characteristics such as gender, socioeconomic status, culture and race play in testing, will make it easier for courts and counsel to understand and challenge the evidence. Requiring disclosure of the sources of information relied on by the expert will also improve the ability of counsel to challenge the evidence and provide a corresponding expert critique.
Other changes, however, do not appear to go far enough. While courts are now to consider whether a preliminary examination of expert opinion evidence on a motion should occur, this requirement is not mandatory. Given the prejudicial status quo that can be established on motions, it is unclear why such examinations are optional.
Of greater concern to practitioners in this field is that the positive changes to the expert evidence rule are hollow advances unless parents’ counsel are provided with the resources to test and critique the evidence.
The Motherisk Commission, for example, identified the inadequate legal aid tariff and underfunding of defence experts as playing a central role in overpowering parents and counsel. As a result, it recommended expansion of various legal aid programs to ensure that parents are able to effectively defend their cases. However, the recent 30 per cent funding cut to Legal Aid Ontario has effectively dashed any hopes that the inadequate legal aid tariff will ever be rectified in child protection. With the legal aid cuts, the changes to the Family Law Rules have moved one step forward and two steps back.
The child welfare system predominantly affects the most disadvantaged in our society — in particular women, visible minorities, Indigenous peoples and the disabled. Interference by Children’s Aid societies engage the Charter rights of children and parents. Miscarriages of justice in child protection have real consequences — families can be ripped apart, parent-child bonds may be severed, siblings may be separated.
If we are serious about preventing miscarriages of justice, we need to ensure that all child welfare litigants are able to access substantive and procedural justice. While the changes to the Family Law Rules are a start, there remains much that needs to be done to ensure that the child welfare system is fair for families and children.
Tammy Law is a family and child protection lawyer in Toronto. She is the current president of the Toronto chapter of the Ontario Association of Child Protection Lawyers.
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