[1] This is a motion that has been brought during an adjournment period of a Crown wardship trial that began on 7 October 2003 and continued to 10 October 2003. The Children's Aid Society of Toronto (the "society") is seeking Crown wardship of the five-year-old twin daughters of Ms. K.O., the mother. The trial, which has taken four days thus far, is set to resume on 22 December 2003. In order to understand the context of this motion, it is necessary to refer to an earlier motion brought by the society and cross-motion brought by the mother on 19 November 2003.

[2] Subsequent to the completion of the first four days of trial, the mother alleged that the children had disclosed to her that they (or one of them) had been sexually abused by one of their then-foster parents. The alleged disclosure came during an unsupervised visit between the mother and her daughters. After making a number of inquiries on her own, the mother then instructed her lawyer to contact the society to request that this disclosure be investigated. The society, in turn contacted the Durham Children's Aid Society and the Durham police, who conducted a joint investigation. The police and the Durham society concluded two things: first, that the children had not been sexually abused and, second, that the mother had coached the children to make such allegations.

[3] On 7 November 2003, on the basis of those conclusions, the society unilaterally suspended the mother's longstanding unsupervised access to the children. The society then brought a motion on 19 November 2003, seeking temporarily to suspend unsupervised access. The society's argument on that motion rested on the above-mentioned two conclusions jointly reached by the police and the Durham society -- with which the Toronto society concurred. The mother's cross-motion sought, inter alia, an assessment under s. 54 of the Child and Family Services Act, R.S.O. 1990, c. C.11 (the "Act"). Following argument, I dismissed the society's motion and granted the mother's cross-motion for a s. 54 assessment on the narrow issues of whether it was more likely than not that the girls had been sexually abused and whether it was more likely than not that the mother had coached the girls to make such allegations.

[4] My order required that the parties agree on the identity of the assessor, failing which it would be Dr. George A. Awad, a psychiatrist who had consented to perform the assessment. Given the timing of the trial, I also ordered the assessment and the report to be completed by 31 December 2003.

[5] The mother has now brought a motion requesting an order that the society pay for the cost of this assessment. The society [page272] opposes that request. Accordingly, I must decide two issues: First, do I have the jurisdiction to order the society to pay for the assessment? Second, if I do have that jurisdiction, is it appropriate that I make such an order on the facts of this case?

[6] Dealing first with the jurisdiction issue, I note that s. 54 of the Act does not provide any guidance as to which party should pay for a court-ordered assessment. This issue, however, has been dealt with in at least two cases, both of which were provided to me by counsel during the course of argument.

[7] In Children's Aid Society of Renfrew County v. T. B. (2000), 2000 CanLII 20370 (ON CJ), 112 A.C.W.S. (3d) 71, [2000] O.J. No. 5649 (QL), 2000 CarswellOnt 5462 (C.J.), Justice Stephen A. March of the Ontario Court of Justice ordered a s. 54 assessment to be conducted. He then turned to the issue of who was to pay. He stated [at paras. 7, 8]:

[8] In the case before me, the society relies on Children's Aid Society of Renfrew County v. T. B. in support of the proposition that I do not have the jurisdiction to order the society to pay for the s. 54 assessment.

[9] Mr. Rowe, on behalf of the mother, relies on Children's Aid Society of Huron County v. C.P. (2002), 110 A.C.W.S. (3d) 1059, [2002] O.J. No. 176 (QL), [2002] O.T.C. 39, 2002 CarswellOnt 162 (S.C.J.), a decision of Justice Chester C. Misener of the Ontario Superior Court of Justice. In that case, Justice Misener had to decide the very same issue, namely, whether the Ontario Court of Justice has the authority to order payment of a s. 54 assessment. Justice Misener, who had Justice March's decision before him, came to the opposite conclusion. Justice Misener made the following observations (which I have taken the liberty of setting out extensively for the reasoning contained in those comments) [at paras. 11-13]:

[10] In my view, Justice Misener's decision overrules the ratio in the case of Children's Aid Society of Renfrew County v. T. B. decided by Justice March. As such, I consider myself to be bound by the decision in Children's Aid Society of Huron County v. C.P. In any event, Justice Misener's reasoning is logical, clear and persuasive. In my opinion it is also entirely consistent with the overarching purpose of the Act, as set out in subsection 1(2), namely, to make decisions that are consistent with the best interests, protection and well being of children. Accordingly, I have concluded that I do have jurisdiction to make the costs order.

[11] I now turn to the question of whether, on the facts of this case, I ought to make the costs order requested by Ms. K.O.'s counsel.

[12] In the motion of 19 November 2003, the society argued that, if mother did in fact coach the children to make false allegations, that coaching would constitute a form of emotional child abuse. I agree with that proposition. In turn, it follows that, if, in [page274] the middle of a Crown wardship trial, the mother inflicts emotional abuse on her children for whatever reason (although inferentially in an attempt to gain a tactical advantage in the trial proceedings), then a finding to this effect could significantly impair her chances of success in the trial itself. Accordingly, to the extent that reliable evidence may be available that could assist in resolving this issue, such evidence would be of considerable importance in the trial proceedings.

[13] Furthermore, evidence that the mother did not coach the children could also be of assistance in the trial in helping to resolve issues of credibility that have arisen and will likely continue to arise throughout this trial. In either case, the allegations of sexual abuse and the allegations of coaching are both so serious that I cannot simply ignore them and hope that they will recede into the background.

[14] Accordingly, I must ask myself this question: What reliable evidence can be adduced that will assist in resolving these issues?

[15] In its submissions on this motion, the society says that it will continue to rely on its position that the mother coached the children to make false allegations of sexual abuse. It says that, at the continuation of the trial on 22 December 2003, it will likely call the police officer who investigated the allegations and who concluded not only that the sexual abuse did not occur but also that the mother coached the children. These conclusions were based on an interview with the foster parents -- who denied such abuse -- and an interview with the children -- who gave vague and conflicting statements. As I noted in my endorsement of 19 November 2003, no one deemed it appropriate, as part of this investigation, to interview the mother herself in order to arrive at a determination whether the mother was telling the truth about the allegations of sexual abuse. And, although the Toronto society and the Durham society came to the same conclusions as the police, the evidence before me on the motion of 19 November 2003 was based principally on those police interviews and the police conclusions emanating from those interviews.

[16] Whatever expertise police officers may have in investigating allegations of criminal conduct, it would appear they have no expertise in determining whether someone has lied or has told the truth. Professor Stephen Porter, of the Department of Psychology at Dalhousie University, had delivered a PowerPoint presentation entitled "The Truth about Lies: Can We Catch Liars by their Demeanour?" at the Annual General Conference of the Ontario Court of Justice and the Ontario Conference of Judges in May 2003 at Windsor, Ontario. In that presentation, Professor Porter referred to a study by Professor Aldert Vrij and Dr. Samantha [page275] Mann (both from the Department of Psychology at the University of Portsmouth in England) that concluded that police officers were only able to detect deception at the level of random chance. See Aldert Vrij and Samantha Mann: "Who Killed My Relative? Police Officers' Ability to Detect Real-Life High-Stake Lies" (2001), 7 Psychology, Crime, & Law 119-132. Some police training manuals imply that detecting deceit is straightforward with training. However, Professor Porter noted that in the study conducted by American professors Saul M. Kassin and Christina T. Fong, that participants who had been trained in a widely used traditional police technique ("Reid Technique") performed significantly worse in detecting lies than untrained counterparts. See Saul M. Kassin and Christina T. Fong: "'I'm Innocent!': Effects of Training on Judgments of Truth and Deception in the Interrogation Room" (1999) 23 Law & Hum. Behav. 499.

[17] All of this leads me to conclude that a police officer's opinion at trial that the children lied or that mother lied may be of limited assistance to me, if it is the sole or primary piece of evidence in this puzzle.

[18] On the other hand, I can have available to me the expertise of Dr. George A. Awad who has been a practising psychiatrist for approximately 30 years. [He] has extensive experience dealing with children. He has written a number of publications focusing on children and abuse situations, including "The Assessment of Custody and Access Disputes in cases of Sexual Abuse Allegations" at (1987), 32 Can. J. Psychiatry 539-544. In this context, I must decide whether it is appropriate to add Dr. Awad's expertise to the mix of evidence that the society is proposing to call at trial. I cannot help concluding that Dr. Awad's evidence, on an issue that the society itself has said is significant, could be of very great assistance in helping me sort out this issue.

[19] Dr. Awad requires a retainer of $3,250 to commence his assessment. The cost of the assessment may exceed the retainer. However, if the assessment can be done for less than this amount, he will refund the unused portion of the retainer. Ms. K.O. initially sought funding from Legal Aid Ontario ("legal aid"). However, legal aid stated it would be prepared to fund only a very small portion of this cost. It is not disputed that the mother has very limited financial resources and is not in a position to pay for this assessment herself. Because of this, Mr. Rowe finally turned to the society to provide the necessary funding shortfall. In its letter dated 25 November 2003, addressed jointly to Mr. Rowe and to the father's counsel, the society stated:

[20] When the motion of 19 November 2003 was argued, the society opposed the mother's request for the s. 54 assessment. Mr. Rowe, on behalf of mother, now argues that, by refusing to pay for this assessment to which it objected in the first place, the society is making a collateral attack on my order of 19 November 2003. In other words, because the society knows the mother is unable to access sufficient funds to pay for this assessment, the society can, in effect, defeat my order for that assessment by refusing to pay for it.

[21] As interesting as that argument is, I do not need to decide this motion on the basis of whether the society is acting in bad faith in its refusal to make funding available.

[22] I do not take issue with the society's submissions that financial resources are [scarce] and that money ought not to be spent on assessments that are unnecessary. Nevertheless, by virtue of my order of 19 November 2003, I have already decided that the assessment is in fact necessary.

[23] I reject the society's position that, simply because the mother argued strenuously for this assessment, she should then be responsible for its cost. From the perspective of a court, it is implicit in the making of a s. 54 assessment order that the court requires this assessment -- regardless of which party requested it. It is, therefore, entirely wrong in principle to submit that whichever party requests the assessment ought to pay for it, failing which there will be no assessment.

[24] The society also submitted that, since mother's counsel is acting on a legal aid certificate, I ought to order Legal Aid Ontario to pay for this assessment. The legal aid plan is not a party to this proceeding. Furthermore, I am unaware of any authority that would permit me to make such an order. Even if I were inclined to hear submissions on that point -- which I am not -- the delay involved in putting legal aid on notice and setting another date for argument would place the timing of this assessment in peril.

[25] Inevitably, all of this points to one conclusion only -- namely, that the society must pay the cost of the s. 54 assessment. During the argument of this motion, Mr. Rowe advised me [page277] that Dr. Awad still believes that he can have the assessment and his report completed by the deadline of 31 December 2003 that I imposed in my endorsement of 19 November 2003.

[26] Accordingly, my order is as follows: