S.T.M. v. C.G.H., 2021 BCPC 357

Citation: S.T.M. v. C.G.H. 2021 BCPC 357 Date: 20211104 File No: [Omitted] Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: S.T.M. APPLICANT AND: C.G.H. RESPONDENT REASONS FOR JUDGMENT RE EXPERT QUALIFICATIONS OF KATHERINE PAXTON OF THE HONOURABLE JUDGE M.J. BRECKNELL Counsel for the Applicant: G. Whidden Counsel for the Respondent: F. MacLean and A. Sadovska Place of Hearing: Prince George , B.C. Date of Hearing: November 4, 2021 Date of Judgment: November 4, 2021

[1] THE COURT: We are now at the stage of the proceeding where S.T.M. through her counsel seeks to have Katherine Paxtonqualified as an expert in two areas: (1) autism and (2) counselling children and families with regard to the autism spectrum disorder.Although not specifically set out by Mr. Whidden, I take from what he is seeking in point number two is that Ms.

Paxton be qualified asan expert as somebody who provides counselling and counselling strategies for children with autism, adults with autism, and theiradjunct family members who may have to address and assist the person who is within the autism spectrum disorder. [2] Mr. MacLean has quite rightly pointed out that autism is a complex, and in some cases, controversial area because it is not onething. It ranges from very mild to extremely severe behavioural symptoms.

The concept of autism or what autism is, whether it is adisease or a syndrome or cognitive impairment or a wiring complication in the brain, is something that I think, clearly, very few judgeswould have a keen understanding of, without the assistance of some experts in dealing with where within the spectrum, if at all, aparticular person's circumstances are and in this case where, if at all, the particular circumstances of B.H. lies within what is described asthe spectrum range for autism. [3] Now, I have not heard any objection from anybody up to this point.

Certainly, the document is in the exhibits already, the reportof Dr. Andrea Welder. That was done in late 2020. In that report, Dr. Welder arrives at a diagnosis that B.H. is within the autismspectrum disorder and also has generalized anxiety disorder. So, so far as B.H. is concerned, subject to any submissions by counsel laterin the trial, I am proceeding at this point on the basis that she has a challenge within what the literature describes as autism spectrumdisorder. Dr.

Welder is of the view that it is at the less severe end of the spectrum. [4] Now, I have to come at the situation from the perspective of what I have seen both as a judge and in my life as a human on theEarth. I have seen documentaries on autism. I have met people who I am told have autism. I have seen them at one end of the scale.Some people with lesser challenges are able to function within society with some assistance at various levels.

Certainly, recently we haveseen the depiction of somebody with autism functioning at a very high level in the television series, The Good Doctor, and then I havealso seen documentaries of people who are so severely challenged by their autism that they, effectively, have almost no ability toresponsibly communicate with other people around them. [5] So autism is a very, very big rainbow and Mr. Whidden is asking me to qualify Ms. Paxton as an expert in autism. He is alsoasking me to qualify her as an expert in counselling children and families in the autism spectrum. [6] I will deal with the second point first.

I have read Ms. Paxton's curriculum vitae, I have listened to the answers she had given tothe questions posed by counsel, and I have no reservation in qualifying her as an expert in counselling children and families on the autismspectrum. She has considerable experience in the day-to-day counselling of people in that area. She has a Master's degree in CounsellingPsychology and she has authored a book on the topic.

She has presented at a variety of different educational programs, and she has takena variety of different educational programs. [7] She has satisfied me that at the time she took her training, there were no certification associations or colleges that could give youa stamp saying, "You are qualified in this area," but based on her extensive experience, I am satisfied on the second component that she isan expert in the area of counselling children and families on the autism spectrum. [8] Counsel has kindly provided me with the case of Dulong v.

Merrill Lynch which quotes from the leading case on the topic, R. v.Mohan, which is found at (SCC), [1994] 2 S.C.R. 9, where Justice Sopinka points out that there is a four-part test thathas to be applied: the evidence must be relevant; the evidence must be necessary to assist the trier of fact; there must be no exclusionaryrule otherwise prohibiting the receipt of the evidence; and the evidence is given by a properly qualified expert. [9] While the evidence on counselling people with autism spectrum concerns is relevant to this case because I am satisfied that B.H.has autism, it is necessary to assist me as a trier of fact because I do not know enough about autism and the counselling of people withthat disorder or challenge to come to any conclusions without the assistance.

I know of no exclusionary rule prohibiting the receipt of theevidence and I am satisfied on the point I have just mentioned that Ms. Paxton is qualified as an expert. [10] Turning now to the first point, which is that Mr. Whidden wishes me to qualify Ms. Paxton as an expert in autism that iscomplicated by the fact that Ms. Paxton readily acknowledges that she, is not qualified or certified to diagnose somebody with autism.She assists people with autism who have been diagnosed either by somebody qualified to do so, or in the case of adults, people whocome in and self-identify as having those challenges.

I agree with submissions of counsel for C.G.H. that the Court has to be a verycareful gatekeeper when it comes to allowing evidence from somebody who wishes to be qualified as an expert, because even if a personis qualified as an expert, the Court still has the gatekeeper component of making sure that the expert's evidence is within the area thatthey have been qualified for as an expert. The Mohan test talks about that. [11] When I consider what has been told to me on this point, I use as an analogy counsel standing up and asking the court to qualifysomebody as an expert in cancer.

Cancer is a word we all recognize as an illness, but it can manifest itself in many different ways inmany different parts of the body with many different treatment options and many different types of diagnoses. I see the request to qualifysomebody as an expert in "autism" as being similar. I keep in mind that Ms.

Paxton is experienced in assisting people with autism, boththose who have been diagnosed, those who self-report, and clearly she has an expertise in helping people who have that challenge, but isshe an expert in autism? [12] In order to be qualified as an expert, I have to conclude on a balance of probabilities that the Mohan test has been met and that, inmy gatekeeper function, it is appropriate to allow questions to be asked of that person as an expert in the areas in which that person hasbeen qualified. At the end of the day, I am unable to conclude that Ms. Paxton is an expert in autism.

However, she is an expert in thecounselling of autism patients and clearly, in my view, she would be capable of commenting on how different counselling approachesmight be useful or effective in assisting people with different levels of autism diagnoses.

[ 13 ] In other words, I am not qualifying her as an expert in autism, but if she is asked a question, "If Patient A is presented to you as having autism at Level 3 as set out in DSM-V, what would your approach be," and then she can tell me in general, "Well, based on that, I have to keep in mind that the person has these challenges, more severe than the challenges at Level 2 or Level 1, and this is how I would attempt to assist them along or assist their family members in dealing with them." So, as an expert in autism, no, but obviously, in my view, she has the ability to comment on if somebody is presented to her with a certain diagnosis of autism, "What could you do for that person," and qualified as an expert in counselling -- I am going to say counselling individuals with autism and counselling their family members, as well. (REASONS CONCLUDED)