Can Complaints Against a Doctor Negate Their Expert Evidence or be Introduced as Evidence Itself?


One of the more difficult situations we come across in family law are matters involving family violence and parental alienation. In such situations, it can be common for medical professionals to advise what is in the children’s best interests. In a decision recently released by the Ontario Court of Appeal, a doctor’s evidence was challenged by one of the parents involved in the proceeding. A complaint was filed against the doctor, resulting in an investigation and findings by the College of Physicians and Surgeons. 

The mother was given limited access to her children based on a doctor’s evidence

The mother and father involved in the matter were married in 2003. They had two children before their separation in 2012. One of the children was living full-time with the mother at the time of the trial. The second child lived with the father during the week and the mother on weekends. 

Prior to the original trial, the mother and father appeared before the courts on about 40 separate occasions. During one of these appearances, a motion judge relied on the expert evidence of a court-appointed doctor. The report stated that one of the children had been alienated from the father and that the child’s mental health was impacted as a result. The doctor recommended the immediate removal of the children from the mother’s care. This decision led to a period of six years where the mother had limited access to both children. 

The trial judge admitted a report about the doctor’s previous conduct into evidence

The initial trial started in November 2020. The father intended to call the same doctor to provide testimony regarding his assessment. However, the doctor was not available, so the father sought to have the assessment itself submitted as evidence. The mother objected to this based on a finding of the College of Physicians and Surgeons’s Inquiries, Complaints and Reports Committee. The Inquiries, Complaints and Reports Committee had expressed serious concerns about the doctor’s approach to his assessments. 

The father objected to the inclusion of the Inquiries, Complaints and Reports Committee report under the Regulated Health Professionals Act, which states that findings made by the College of Physicians and Surgeons, including the Inquiries, Complaints and Reports Committee Committee, are inadmissible in civil proceedings. 

The trial judge, however, found that since the hearing was not civil in nature and allowed the Inquiries, Complaints and Reports Committee report to be admitted. The trial judge found that there was “an abundance of evidence that both children have been subjected to verbal, emotional and psychological abuse by [the father].” The trial judge concluded that  “the physical, emotional and psychological safety, security and well-being of both children would be best fostered if they were reliving together in [the mother’s] home.”

Should the trial judge have allowed the doctor’s evidence or the report about him?

On appeal, the Ontario Court of Appeal referenced the trial judge’s finding that the Inquiries, Complaints and Reports Committee report was not barred from being considered as evidence because family law trials are not the same as civil proceedings. The trial judge had made a distinction between the two types of trials. The difference was that, in family law, the judge’s task was to “interpret the legislation within the distinct contextual framework of family law parenting disputes wherein the children’s best interests are paramount.” The father’s position was that, as it related to the report of the Inquiries, Complaints and Reports Committee, the difference between their trial and family law trials should not have been considered.

The Court of Appeal found that on a plain reading, the Regulated Health Professionals Act creates a blanket prohibition against admitting any such documents into a civil proceeding. The wording of the law contained no express exception. 

However, the Court of Appeal said that it is also important to look at what the Regulated Health Professionals Act does not say. It agreed with the trial judge that the statutory prohibition did not prevent the admissibility of the mere fact that a complaint was made. The Court of Appeal found that such a finding could be entered as evidence. 

Are family law proceedings distinct from civil proceedings?

The Court of Appeal did take time to address whether family law proceedings should be considered distinct from civil proceedings in this context. It acknowledged that family law trials may be “civil” in the ordinary sense of the word (as opposed to criminal proceedings), but are distinct from many civil proceedings. 

The Court of Appeal referenced the Children’s Law Reform Act, which states “that applications to the courts respecting decision-making responsibility, parenting time, contact and guardianship with respect to children will be determined on the basis of the best interests of the children.”

The Court of Appeal found that the trial judge demonstrated she was aware of the need to avoid ignoring the framework of family law as it relates to children in the light of the blanket prohibition against Inquiries, Complaints and Reports Committee reports in all civil matters. The Court of Appeal, thus, found that the trial judge’s decision was justified. The fact that the complaint occurred was enough to justify the trial judge’s decision without having to have discussed the details of the report at all. 

Contact the experienced family law lawyers at Johnson Miller Family Lawyers for resolution of the complex family law disputes

If you have questions about child custody, contact Windsor family lawyer Jason Howie. Jason takes the time to listen to the needs of each client, helps you consider all of your options, and provides you with the best recommendation. We understand the emotional difficulty of dealing with cases of parental alienation or family violence, and our experience in dealing with these types of sensitive matters have given us the tools needed to help our clients through difficult times. Call 519.973.1500 or contact us online. We serve clients in Windsor, Essex County and throughout the region.



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