We have previously written about the devastating effect improper expert witness testimony can have on family court matters, particularly when it comes to custody and access hearings. Psychologists and social workers across the country assist with these matters by providing what are purportedly neutral assessments of the parenting situation to assist a court in making a decision regarding parenting time and parental decision-making. These assessments, ideally, should be completed after the expert has had an opportunity to have candid discussions with all parties involved, including the child(ren). From there, the expert can provide an opinion as to the best interests of the child.
We have referenced more than one case where an expert witness has based an opinion on insufficient evidence and faced disciplinary action as a result. One such case involved a B.C. psychologist who had provided over 200 parenting assessments over the course of his career. After a number of people complained about wrongdoing on his part, the provincial College of Psychologists Inquiry Committee investigated. The findings determined that there had been several instances in which the psychologist, Dr. Allan Posthuma, had provided assessments after inadequate fact-finding, had given insufficient credence to claims of domestic violence, and failed to distinguish between his opinion and findings of fact. In one case, the court had gone so far as to discredit Dr. Posthuma’s recommendation of full custody for a father who had been accused of hitting his child and had been convicted of assaulting the child’s mother.
The issue was eventually resolved without disciplinary action by the Committee after Dr. Posthuma agreed to retire from practice.
Unsatisfied with that resolution, one father brought a civil claim against Dr. Posthuma, seeking reimbursement for thousands of dollars spent on a report he claimed was flawed. The father had been involved in a custody dispute with his former spouse, and the court had ordered an assessment report pursuant to s. 211 of the Family Law Act. Dr. Posthuma had been retained to provide the report at a cost of $12,075. When the father was unsatisfied with the conclusions drawn in the report, he retained another psychologist to prepare a report critiquing Dr. Posthuma’s findings, for an additional $3,000. He also complained to the College of Psychologists, and the claim was resolved by way of a resolution agreement, without any admission of wrongdoing.
The father’s claim sought reimbursement of the costs of obtaining both reports, as well as nearly $20,000 in legal fees he spent disputing Dr. Posthuma’s findings. However, the judge in the case dismissed the claim, citing the concept of witness immunity:
Dr. Posthuma’s role was that of a professional witness who was authorized to write the report pursuant to the court order…
I find that witness immunity applies to protect Dr. Posthuma from any civil action arising from the Supreme Court proceedings involving Mr. Gill.
The concept of witness immunity was set out in a B.C. decision from 2017, in which the judge stated:
Witnesses should not be dissuaded from giving evidence or fettered in what they tell a court by the fear that an aggrieved person will sue them. Prosecutorial decisions must be allowed to be made in an atmosphere that is free from the chilling effects of potential civil liability.
While it is of course important to maintain an environment where expert witnesses can speak freely without fear of lawsuits from aggrieved parents, perhaps this should be revisited in cases where there have been findings of misconduct. Aside from the cost of retaining an expert, the relationships between parents and children can be greatly impacted by these assessment reports. Providing blanket immunity to experts in these situations may be a step too far in the wrong direction.
The family law lawyers at Mincher Koeman are exceptionally experienced with respect to child custody and access disputes following the breakdown of a relationship. We will work with you to ensure a custody and access arrangement that fits your family’s specific circumstances. Further, we have assisted multiple clients facing issues or concerns relating to domestic violence in seeking and obtaining emergency protection orders. Contact our office today by calling us at 403-910-3000 or contact us online.
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