In this era, the first place a person goes to find information is the internet.
Although there is often a lack of expert evidence that can help guide a judge’s ruling on a case, the rules of evidence do not permit judges to rely on internet articles.
In Children’s Aid Society of the Regional Municipality of Waterloo v. S., 2010 ONCA 630, a 3 judge panel from the Ontario Court of Appeal considered an appeal in a child protection case where a medical expert proffered an opinion stemming from a parental capacity assessment.
As part of the appeal, the appellant asked the court to dismiss the expert’s opinion on the effect of Cortisol on the brain of children in stressful situations.
To do so, the appellant produced internet articles on this subject.
This prompted the Court of Appeal to state: “It is insufficient to come to this court and simply attempt to file articles found on the internet which relate to the effect of Cortisol on the brain. 5419, Justice Edward heard 9 days of testimony before deciding on a hospital’s application for an order protecting an 11 year old aboriginal child diagnosed with leukemia.
There is no opinion from anyone qualified to give one that these articles are authoritative. It was the hospital’s claim that the child had more than a 90% probability of recovery if treated with chemotherapy.
Absent such evidence, they are of no evidentiary value and are inadmissible.” In light of the changing jurisprudence regarding opinion evidence, the best practice is to comply with the rules of evidence by serving the Expert Report, Notice to Admit, Acknowledgment of Expert Report and CV – all in accordance with the timelines set out in the Rules. The doctors that testified stated unequivocally that a child with this disease, if left untreated, would die.
Family court judges are called on daily to make difficult decisions. At the time of the hearing, the child’s mother had withdrawn consent for the continuation of chemotherapy. The court commenced its analysis by determining whether the mother’s decision, as the child’s substitute decision-maker, was in fact an aboriginal right to be respected.
The more challenging of cases often involve custody, relocation, alienation and termination of contact. He stated: “In my view, the doctrine of aboriginal rights exists, and is recognized and affirmed by s.
However, at the far extreme are child welfare cases where the state intervenes accusing the parents of lacking the capacity to care for their own children. 35(1), because of one simple fact: when Europeans arrived in North America, aboriginal peoples were already here, living in communities on the land, and participating in distinctive cultures, as they had done for centuries.
Within this subset of cases are cases that involve the life and death of a child. It is this fact, and this fact above all others, which separates aboriginal peoples from all other minority groups in Canadian society and which mandates their special legal, and now constitutional, status.” The court did not end its examination on this freedom.