Law Times

Page 10 February 23, 2015 • Law Times www.lawtimesnews.com Expert evidence Lawyers awaiting resolution of Motherisk controversy By Judy van rhiJn For Law Times ow that the hair- follicle testing relied on in many child protection and fam- ily law cases is un- der official review, lawyers are reconsidering their approach to the issue. While they're eager to see the results of the review, many say they can't wait until the final report in order to deal with urgent matters of access, custody, and child protection. Since the case of R. v. Broom- field overturned a conviction based on testing under the Motherisk program, there has been considerable doubt about the efficacy of a test previously considered to be highly reli- able. The Court of Appeal found there was competing evidence on the tests without actually finding the Motherisk one was deficient. Former Court of Ap- peal justice Susan Lang has now taken up that question through an independent review. The government has asked her to de- termine the adequacy and reli- ability of the hair-testing meth- od used by Motherisk between 2005 and 2010 in child protec- tion and criminal proceedings. She'll also determine wheth- er the government should undertake a further review of specific matters or classes of cases. Meanwhile, the business of assisting families in crisis will continue. "You cannot keep a case on hold," says Jennifer Shuber of Basman Smith LLP. "The months are ticking by with the parent not seeing the child. In the child protection arena, that could lead to adoption. The court wouldn't say, 'I won't order access until the report comes out.' There's no sense in that from a best-interest point of view. You do what you have to do." Christine Marchetti of Stanchieri Family Law agrees. "Such an important part of what we do is to maintain re- lationships between parents and children," she says. "You can't tell people to wait, particularly in child protection, because there's such urgency. The subject matter is so impor- tant. Ultimately, if the children are taken from their parents it's a question of rights: the rights of the parent and the child. The ultimate goal is for reunification and that goal is delayed." As an example of the con- cerns, Marchetti refers to situa- tions where one parent is mak- ing accusations of drug or alco- hol problems in order to seek an advantage in the litigation. "If there is no merit in the accusa- tion, there could be months of a parent being denied contact. There may be supervised access in the interim, but that's a short- term solution. You need regular, normal access which is usually overnight, unsupervised in a home environment." That raises the question of what to do about the testing. For her part, Shuber notes there has been no conclusion that the Motherisk test was faulty. "Tests have to be done and they are only as good as the people who do them and the state of medi- cal knowledge and technology at the time. There is some debate back and forth whether the tests are valid or problematic. Sick- Kids is still saying that they have a lot of confidence in the test. Some people have come out in support, but the whole brouha- ha has made people more suspi- cious of Motherisk results." Marchetti admits that when it comes to Motherisk, recent events have definitely given her pause. "Would I now look to Motherisk? In the past, it was thought to be very reliable, but I would be somewhat hesitant right now." And while there are private testing facilities that do these sorts of tests, Marchetti warns they can be very expensive. "The court can order mom or dad to attend randomly and for scheduled urine testing. If they need three months or six months of negative testing, that can be costly." In Shuber's experience, many clients go to whoever's available at the time they need the test. "How do you know they are doing the A-plus version? It comes down to the homework of the lawyer. If you are putting in a testing provision or a sobri- ety provision, how far do you go to ensure you are protecting the child?" The tests can be important, Marchetti notes. "You can't avoid every test. In certain in- stances, especially child pro- tection and even sometimes in private domestic matters, testing is important. A per- son may claim that a parent is drinking to excess, getting in a car, and driving the chil- dren or under the inf luence of some other substance. Whether in the private or child protection realm, it's important to be able to ac- cess tests when needed." If approached by someone wishing to change an order based on testing, Shuber says she'd view the matter cau- tiously. "I do not advocate saying that the test is garbage and we should throw every- thing out with the bathwa- ter. In family law and child protection cases, tests aren't used in isolation. There is factual information about using, too." Marchetti would start by re- testing, possibly with Motherisk and then twice at another facil- ity for comparison. Deciding what approach to take after that would be challenging. "It's not an easy question. If the relation- ship with the children has been greatly impacted, how do you repair the damage? How do you compensate for the loss of time or diminished time when it's not quantifiable?" She expects there will be law- suits. "Obviously, the best inter- ests of the children will prevail. If they have been integrated into a family, would uprooting them from stability and security re- ally be best? You would have to balance the rights of the par- ents and the importance of the children knowing their parents. Maybe you could try therapeu- tic reintroduction so the parent could play a role in their lives." As Shuber points out, it can be a challenging situation. "It's a different situation to overturn- ing a conviction," she says. "There's no way of turning back the clock for the families affected. We are riding along within the context of what's best for the child." One effect of the case will be to change the way family law- yers approach expert evidence. "It's a lesson for lawyers, not treating anything any agency does as perfect," says Shuber. "It's just an expert report. It's not infallible. It's unfortunate the judges and lawyers often don't know the science. They treat it as gospel, and it's not Motherisk's fault that evidence is unchallenged in court. That's the lawyer's fault." Shuber recalls a similar is- sue with shaken-baby cases. 'You can't tell people to wait, particularly in child protection, because there's such urgency,' says Christine Marchetti. 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