“I start with whether a “clinical issue” is required before an order for an assessment [under s. 30 of the CLRA] is made. In my view, it is not for four reasons.
First, there is no such criterion in the statute. Nor is there any other part of the Children’s Law Reform Act on which such a prerequisite could be based.
Second, while the Divisional Court in Linton was clear that a clinical issue was a requirement, one must look closely at the facts of the case. That decision is notable for the following features. The action was on the list for trial. An order for an assessment would result in the delay of an imminent trial. Furthermore, it would result in an unusually long hiatus because the father lived in Montreal. The Children’s Law Reform Act was proclaimed in force December 31, 1991. In the period between then and December 1994 when the Divisional Court made its decision, there seemed to be judicial resistance to what appeared to be the pervasive phenomenon of ordering assessments frequently and the concern that that trend had to be reversed. There was consensus amongst the four judges involved that the trial judge was in the best position to decide whether an assessment ought to be ordered, without regard to the delay that that would entail at a critical point in the proceedings. There also appeared to be an expectation that the father could engage his own assessor without court order, an anomaly that is not explained. Interestingly, there was expert evidence available from treating professionals as to the clinical issues that the children demonstrated. Although those clinical issues were not described, it stands to reason that the children would not have been involved with the CPRI if they were not experiencing clinical issues. Although the Divisional Court held that clinical issues were a prerequisite, the court nonetheless upheld the motions judge without regard to those very clinical issues.
Third, in the recent decision of the Court of Appeal in Ursic, the Court made no reference to Linton or to the question of a clinical issue. The Court of Appeal accepted an endorsement made by Gillese J. on the stay motion in which she observed that the failure on the part of the trial judge to have responded to the parents’ request at the outset of the trial for an assessment may have been an error. Furthermore, the Court of Appeal found that the assessment reports prepared between the trial and the hearing of the appeal were of “great assistance in deciding the appeal”. The Court had an opportunity to address the long standing discussion about the necessity for a clinical issue as a pre-requisite and chose not to do so. I infer from its silence on that issue, that it does not consider a “clinical issue” as a pre-requisite.
The fourth reason has to do with the identification of a clinical issue. I note that Master Nolan (as she then was) provided a definition in Tamm v. Oddy22 as follows:
I am unaware that there has been any judicial interpretation of the meaning of “clinical issues”. In the ordinary sense, clinical issues would appear to refer to those behavioural or psychological issues about which the average reasonable person would need assistance in understanding. The professional knowledge and skill of an assessor, usually a psychologist or a social worker, could assist the court in understanding the unusual behaviour of the children or the parents involved. “Clinical issues”, in my view, are not limited to psychiatric illness or serious psychological impairment of any of the parties or children involved.
As indicated above at paragraph 37, P.W. Dunn J. provided his own definition of “clinical issues”. At paragraph 38 above, Perell J. also addressed that term.
With due respect to those suggestions, none provides a basis upon which a judge could determine if there was a “clinical issue”. Furthermore, judges are not trained to identify “clinical issues”. No doubt we have views based on the evidence that a family is dysfunctional. A judge might suspect that one of the parents is paranoid or depressed. But judges have no expertise in determining when dysfunction becomes “clinical” or in identifying clinical features of mental illness. I share the view expressed by Gary W. Austin and Peter G. Jaffe (then both at the London Family Court Clinic) in the annotation that appears in the reasons for decision of Linton in which they query whether judges can agree on what a clinical reason might be.
For all of those reasons, I find that the presence of a “clinical issue” or “issues of pathology” is not a pre-requisite for the making of an order pursuant to s. 30 of the Children’s Law Reform Act.”