Read on Twitter
I have read the OCJ decision in the case involving the 6 mo old. As David Miller says in this article, Justice Zisman harshly criticized the family members for wanting the parent-child access to continue. She also made what I believe to be very problematic findings about the /1 https://twitter.com/aptnnews/status/1249727792595550214">https://twitter.com/aptnnews/...
risk to the child. The CAS relied on a worker’s affidavit with a one-paragraph letter from the child’s pediatrician attached. The letter said that because of the child’s earlier medical issues, he would be at greater risk than other kids from ANY illness. /2
The letter didn’t explain why. It didn’t explain how much greater risk was involved. It didn’t say whether the risk would exist if the parents were practicing appropriate physical distancing measures. It didn’t say anything about how that risk should be balanced against the /3
risk to this infant of long-term separation from his parents. It said NOTHING about the risk of coronavirus. Justice Zisman had NO expert or other evidence in front of her about the risk of this particular virus to this child. She accepted this doctor’s letter as justifying a /4
complete suspension of all face to face contact. No adjournment for a voir dire, and no analysis of this doctor’s qualifications re infectious diseases or independence and impartiality. Justice Zisman reportedly held that this wasn’t necessary as the doctor was a “participant /5
expert”. This case illustrates the danger of that distinction, and ignores caselaw confirming that a participant expert is subject to the scrutiny required under White Burgess where that expert’s testimony goes beyond describing their own actions and observations in the case /6
(see Imeson v Mayrvale, 2018 ONCA). In addition, Justice Zisman held that the caselaw confirming that children should continue to have access to parents in domestic cases doesn’t apply in child protection because the state is involved so they have to focus on child safety. /7
She fails to consider that state involvement does not lower the standard for decision-making; if anything, it reinforces the principle that such important decisions be made only on solid evidence, because the Charter rights of the parents and children are involved. /8
I don’t mean to suggest that the background facts here aren’t troubling or that we shouldn’t be very careful about exposing children, particularly medically vulnerable children, to the risk this virus presents. But we should do it on proper evidence. Justice Zisman could have /9
made a temporary without prejudice order suspending face to face access, adjourned for another hearing with proper expert evidence, held a voir dire, and considered ALL the evidence. Instead we are left with a “temporary” situation in which an infant is now cut off from /10
his parents for likely months on the basis of a one-paragraph letter attached to a worker’s affidavit, while the family’s wish to have contact continue is demonized. Justice Beaman saw and decried this kind of thing over and over again in her review of Motherisk cases. I am /11
disappointed that the OCJ is not being more careful in this context, where it is so easy to let emotion and panic overwhelm the need for careful scrutiny of the evidence. /End
I’m adding a couple of points to this: first, I know I am being quite critical of the motions judge in this thread. That’s partly because I’m surprised - Justice Zisman has issued some fantastic decisions in the area of expert evidence in particular. She’s a thoughtful judge /1
and I was surprised to see the issues I identified in her decision. As I noted, it is tempting to over-state risk in this context and I have no doubt that her decision was motivated by genuine concern about the child. /2
It is also my frustration speaking, frustration that the lessons of Motherisk still have not been learned. /3
Mostly, though, the sharpness of my criticisms stem from real shock that the judge made this statement, which suggests the family members were wrong to seek continued access, even when they were literally taking every conceivable step to make that access safe: /4
Parents who ask the CAS and court to comply with access orders, and only suspend access on the basis of legitimate risk demonstrated by admissible, convincing evidence, should never be criticized for doing so. As Justice Beaman notes in the Motherisk report, /5
while explaining that parents’ counsel rarely raised Charter issues because they feared courts would view the parents as focused on their own rights instead of the safety of their children, “This should not be the case given the rights enshrined in the Charter. It is the /6
appropriate role of parents counsel to raise every applicable argument to defend their clients.” /End (again)
