“The appellant submits that the trial judge placed insufficient weight on the evidence of Dr. Jaffe. The trial judge preferred Dr. Butkowsky who had known the child and the family for nearly all of the child’s life. That he placed little weight on the evidence of Dr. Jaffe who never met the child, is not surprising. Indeed, it is not clear that Dr. Jaffe’s evidence was admissible in the first place.
Several trial judges have admitted critique evidence and then discounted its weight. However, other courts have determined that it is not admissible because it does not meet the criteria set out in R. v. Mohan 1994 CanLII 80 (SCC), [1994] 2 SCR 9. In Mayfield v. Mayfield (2001) 2001 CanLII 28213 (ON SC), 18 R.F.L. (5th) 328, Justice Wein ruled that evidence critiquing an assessment report was not admissible. After considering the threshold of “helpfulness” often applied in family law cases, she said:
Prior to the decision in Mohan, the general standard for admissibility of expert evidence was the relatively low threshold of “helpfulness.”….[S]ubsequent to Mohan, the Court in effect had been asked to function as a “gatekeeper,”….[T]he standard of helpfulness was explicitly rejected as being too low….(para. 34)
She went on to find that critique evidence will “rarely” be admissible. She said that:
[I]n most cases, it is simply not necessary or appropriate to have the parties bring forward the evidence of a collateral critique…it will rarely, if ever, be “necessary” to introduce the critique as original evidence or to call the critique as a witness. (para. 44)
Her words were cited with approval by this court in Sordi v. Sordi, 2011 ONCA 665. This was an appeal from a custody order. The trial judge had refused to admit critique evidence. Epstein J.A. “strongly supported” the view set out in Mayfield and said:
I find no fault with the trial judge’s refusal to admit the [critique] on the basis of (1) its frailties, and (2) the fact that its value – to impeach the report of the court-appointed expert – remained available to the appellant through cross-examination and, ultimately, argument. (para.14)
When these considerations are applied to Dr. Jaffe’s report, it is evident why the trial judge gave it little weight. Dr. Jaffe’s self-described task was to “raise concerns” about the court-appointed assessment. It would be difficult to find that such evidence meets the criteria of Mohan.
I too support the view that critique evidence is rarely appropriate. It generally – as here – has little probative value, adds expense and risks elevating the animosity between the parties.”