Lawyers targeted in row over expert witness

A man who says he lost custody of his children due to the testimony of a Whitby, Ont., man who allegedly falsely represented himself as a doctor of psychology in court now wants to hold lawyers and the legal system to account for his ordeal.

“I think the lawyers have to be held to a higher standard,” says the man, suggesting counsel need to do a better job of screening expert witnesses. “From what I’m seeing, there’s no accountability for lawyers.”

The man, who can’t be identified, is among a group of alleged victims working with Toronto lawyer George Callahan to investigate the viability of a class action lawsuit after charges were laid against a Whitby man, Gregory Carter, whom police claim falsely identified himself as a doctor of psychology in family court.

Callahan says he has spoken to about eight people regarding their experiences with Carter, who is classified as a psychological associate by the College of Psychologists of Ontario. “And the number is rising,” he adds.

“The commonality is, first of all, Gregory Carter; second of all, the impact on custody; third of all, the expense,” says Callahan.

While he has yet to determine the target of such a lawsuit, Callahan suggests it could include two lawyers. He says the civil action might centre on accusations of “a failure to warn.”

Tom Dart, past chairman of the Ontario Bar Association’s family law section, says the allegations Carter faces are “highly unusual.” He adds the charges could have major implications.

“Obviously, this person’s qualifications are called into question, so that kind of challenges all of the evidence he’s put forward to the court and opens up those cases again, I guess, for review,” says Dart.

“From a lawyer’s point of view, I guess it depends on what side you’re on. But if you’re on the side of the Children’s Aid [Society], then naturally you’re very concerned because you’ve been relying on that evidence for the files that you’re handling in addition to going to court and relying on that evidence.

So it becomes pretty devastating for them, similarly for parents, obviously, that have been given the opinions that this gentleman has given.”

According to Durham Regional Police, officers fielded public complaints in November 2009 about a man who said he was a psychologist and referred to himself as a doctor while giving testimony in family court. Police said the man’s evidence led to parents’ loss of custody of their children.

Officers later discovered the man was registered with the College of Psychologists of Ontario as a psychological associate with limits on his practice. Police said the man doesn’t have a doctorate degree recognized by the college.

Carter, 63, faces three charges of fraud, two charges of obstructing justice, and two charges of perjury.
According to Carter’s profile on the college’s web site, he is authorized to practise in the areas of clinical psychology, counselling psychology, and school psychology.

A limitation on his practice listed on the site reads as follows: “That your practice in psychology is not to include the autonomous performance of the controlled act of communicating to a person a diagnosis identifying as the cause of a person’s symptoms, a neuropsychological disorder or a psychologically based psychotic, neurotic or personality disorder. You may perform this controlled act only under supervision of a member of the college authorized to communicate a psychological diagnosis.”

Carter’s profile also includes details of professional disciplinary matters and a referral to the college’s discipline committee. According to the record, Carter faces allegations of professional misconduct following a complaint from an individual identified only as Mr. S.

He accuses Carter of contravening his practice restriction and failing to maintain professional standards by “making misrepresentations about his credentials, authoring a report based on inadequate information, authoring a report that fell below the standard of care of a reasonably prudent psychological associate, and/or contravening one or more of the standards of professional conduct.”

A second complaint from Dr. M. also accuses Carter of contravening his practice restriction and failing to maintain professional standards. In addition, it alleges Carter engaged in an act that members of his profession would find “disgraceful, dishonourable or unprofessional.”

The record doesn’t specify a date for a hearing on the cases. None of the allegations against Carter, either in the disciplinary matters or the criminal charges, have been proven.
A request for comment from Dr. Catherine Yarrow, registrar of the college, wasn’t returned by press time.
Carter also didn’t respond to requests for comment by press time.

Lesley Kendall, a partner at Cunningham Swan Carty Little & Bonham LLP in Kingston, Ont., and a certified specialist in family law, says she collects the curriculum vitae of any psychological expert she relies on in court and typically uses those who have amassed good reputations for their efforts in court.

Kendall says she has never heard of an unqualified expert giving psychological evidence in family court and doesn’t believe stricter protocols are necessary.
“There’s a fairly rigorous process through both professional organizations, whether it’s the law society or the governing bodies that govern psychologists,” she says.

At the end of the day, Kendall says it’s up to the courts to decide if expert evidence is reliable.
“If there’s not a curriculum vitae there and the practical experience that an expert would need to qualify themselves as an expert, the court just won’t accept it,” she says.

Meanwhile, Dart notes that the number of mental-health experts who are willing to testify in court is diminishing. In the family law context, there are very few people who will provide custody and access assessments, he says, adding there’s little to protect such experts against professional negligence proceedings if a litigant is unhappy with their evidence.

“We are losing these experts because, although they’re appointed by the court and they answer to the court, they don’t have the same protection as a judge from lawsuits.”

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