Psychologist used ‘obsolete’ tests in child custody case, judge found
Advocate says case highlights A lack of clear rules on parenting assessments relied on by courts
There were “valid and significant concerns” with the process an Ontario psychologist used in an expert opinion call- ing for two GTA parents to lose custody of their children, a judge found.
Milton Blake, a London, Ont.-based clinical psychologist who testified he had done parenting capacity assessments in child welfare cases for more than 30 years, used out-of-date psychological tests to determine whether the Halton Region parents could care for their children, Ontario Court Judge Sheilagh O’Connell found in a 2016 ruling.
The court treated Blake’s assessment, which supported the Halton Children’s Aid Society’s position that the two children be made Crown wards under the care of their aunt and uncle, “with considerable caution and placed very little, if any weight on it,” the judge wrote.
As part of an ongoing investigation, the Star is highlighting cases that raise questions about parenting capacity assessments, expert reports that can be heavily relied on in Ontario child welfare cases that may result in parents permanently losing their children to adoption.
Blake told the Star he respects the judge’s decision but also disagrees with the criticism levelled in court by a psychologist hired by the mother’s lawyers — which was relied upon by the judge in her ruling.
As the Star has found, there are no specific qualifications to conduct a parenting capacity assessment, which typically examine parents’ ability to address the needs of their children and whether there are supports available.
Child protection lawyers, family law academics and the official Opposition have been calling for the provincial government to launch an independent review in the wake of a series of Star stories on psychologist Nicole Walton-Allen, who a judge found had been misrepresenting her credentials for years and who testified she had done more than 100 assessments since 1992.
The problem with the Blake case, one advocate says, is twofold: There are no clear rules on how to conduct a parenting capacity assessment, and it is very difficult for parents with legal aid-funded lawyers to challenge them in court.
“There is no known gold standard for a parenting capacity assessment,” said lawyer Tammy Law, head of the Toronto chapter of the Ontario Association of Child Protection Lawyers. “It’s like the wild west.” Courts order the assessments in about one in five child welfare cases, according to a 2008 article in the Canadian Journal of Family Law. The researchers in that study also surveyed family court judges, finding they agreed with an assessment’s recommendations in about 79 per cent of cases.
The Halton Children’s Aid Society deferred to the Ontario Association of Children’s Aid Societies, which declined to comment about its position on Blake.
The OACAS earlier said it no longer supports the use of Walton-Allen’s services for parenting capacity assessments.
In the 2016 case, the judge granted the Halton society’s request that the two children be permanently placed with their maternal aunt and uncle, with access to their parents. Although her decision agreed with Blake’s recommendation, O’Connell said she made it based on evidence other than the psychologist’s assessment, including testimony from children’s aid workers on the mother’s parenting skills.
“I did my job in my assessment and it is up to the judge to hear all the evidence and make a decision,” Blake told the Star in a statement. “It is not my job to second-guess what a judge decides.”
Many pieces of evidence from child welfare cases — including parenting assessments — are covered by sweeping publication bans intended to protect the identity of vulnerable children.
Blake, a registered psychologist since 1978, told the Star he’s done about 150 parenting capacity assessments.
According to O’Connell’s ruling, Blake found the father’s parenting skills to be “seriously deficient,” and that he needed treatment for drug abuse and had anger management issues. He also found the mother was lacking in parenting skills, which could be improved through “intensive interventions.”
In response, the mother’s lawyers hired their own psychologist, Monik Kalia, to critique Blake’s assessments. Kalia’s opinions would form the basis of O’Connell’s concerns about Blake’s work.
Kalia did not speak to the mother or her lawyers about the case and based his critique solely upon Blake’s reporting, the judge noted.
According to O’Connell’s ruling, this was the third time that Kalia — who had also done parenting assessments — had given a critique of a parenting capacity assessment, but the first time he had “significant concerns” about the methodology of, and process used by, the assessor.
The Star asked Kalia to comment on this story but did not receive a response.
Many of Kalia’s concerns focused on the psychological or psychometric tests Blake used on the parents. Kalia testified in court that Blake had used older versions of two tests that had been discontinued many years earlier, calling them “obsolete.”
Blake had also used a shorter form of another test, known as the Parenting Stress Index test, Kalia noted. That version used 36 questions, rather than the full 136. Kalia testified that the short form, which takes about 10 minutes to complete, would generally be used by a family doctor to get a “rough idea” of what was going on with a parent, but that the long form should be used when doing a parenting capacity assessment.
Kalia testified that “a psychologist who is more familiar with the older tests can use them, but he did not think that this was ethical,” O’Connell wrote in her ruling. “According to Dr. Kalia, the psychologist must stay current and regularly update himself with the new tests.”
Agreeing with Kalia’s critique, O’Connell found that the two tests Blake had used were “obsolete and outdated” and had been unavailable for “approximately 18 and 20 years.”
Blake told the Star he disagreed with Kalia’s critique but said he couldn’t go into detail due to the confidential information contained in the assessment. He said he has conducted three other parenting capacity assessments since the 2016 ruling and no longer relies on older versions of the tests.
“I accept this feedback and I don’t want future cases affected by this finding,” he said.
While it’s “generally accepted” that a psychologist should use the most up-to-date versions of tests, it’s permissible to use older versions if there are “clinically valid” reasons to do so, he said. “In my case, there were.”
In a previous case, Blake said a judge had taken no issue with his use of an older version of one of the tests he used in 2016, even after hearing the criticism of another psychologist.
Blake used the older version of the second test, he said, because it included a subtest that could help measure abilities in parenting. And, he said, he used the short form of the parenting stress index test because, among other reasons, it can measure whether there is evidence of “parent-child dysfunctional interaction.”
O’Connell’s ruling, Blake said, was a “rare instance” in which a judge has found problems with his methodology and findings.
“Parenting assessments and court decisions are far from an exact science,” he said. “Different psychologists may come to different conclusions based on the same circumstances for a variety of reasons.”
According to the College of Psychologists’ standards of professional conduct, a psychologist must only provide professional opinions “that are based on current, reliable, adequate, and appropriate information.”
Registrar Rick Morris said he could not speak to Blake’s specific case. Speaking generally, he said if the use of older versions of tests is not appropriate, their use may be contrary to the standards.
According to O’Connell’s ruling, Kalia’s critique also highlighted that Blake had not spoken to “collateral” sources, such as the mother’s physician, her neurologist, the parents’ psychiatrists and the maternal aunt and uncle who would be taking in the children.
His decision not to interview more sources was “very concerning to the court,” O’Connell wrote, noting that Blake testified in court he hadn’t interviewed the medical professionals because he felt they would not have been objective, but he had spoken to the child protection workers. The assumption they would be objective “was problematic, particularly given that the society is a party in this litigation,” the judge found.
The case raises the question of how a parenting capacity assessment should be conducted in the first place and again calls attention to the fact that there is no outside monitoring of an assessor’s work or performance.
“No one keeps track of the competence of a given assessor, and it is uncertain how competence could be measured or evaluated, in any event,” wrote Ontario family court judge Carole Curtis in a 2009 paper published in Canadian Family Law Quarterly.
Neither is there a body that keeps track of an assessor’s recommendations, such as how many times an assessor has called for a child to be permanently taken from their parents and placed for adoption, Curtis wrote.
The 2008 article in the Canadian Journal of Family Law, written by law professor Nicholas Bala and psychologist Alan Leschied, recommended the government create an independent body to set qualifications and standards for assessors, and monitor their performances and provide education and training. The recommendation was never acted upon.
As of now, most assessments appear to be done by psychologists who are regulated by the College of Psychologists of Ontario. The regulator provides guidelines to its members for doing assessments in child protection cases, but nothing mandatory.
Assessors are appointed by the court and are supposed to be independent, though they are typically paid by the children’s aid society.
In the 2016 case, the mother’s lawyers were able to hire an expert to respond to Blake’s assessment.
Generally, however, it can be very difficult for parents’ lawyers — who are often funded through legal aid — to hire a private assessor to respond to a damaging report, Curtis said.
Of the 10 requests for critiques of assessments in child protection cases last year, nine were approved by Legal Aid Ontario, the provincial agency told the Star. The agency was unable to provide numbers for previous years and spokesperson Graeme Burk said it generally doesn’t track the number of requests for critiques, as they receive so few.
(It is unclear whether the lawyers in the 2016 case were paid through legal aid.)
Law, with the child protection lawyers’ association, said one of the main reasons more lawyers are not requesting critiques is because Legal Aid will only fund an expert for up to nine hours of work.
“It is impossible to hire someone to read the (assessment), review the background materials, review the testing and write a report in that amount of time,” she said. “Sometimes the assessments are hundreds of pages in length and it can take nine hours to read and review all the documentation.”
Another issue, she said, is the hourly rates paid to professionals are low. For example, the agency will pay $150 an hour to a psychologist, while the Ontario Psychological Association recommends its members charge $225 an hour.
She reiterated her call that the province must launch an independent, systemic review into parenting capacity assessments, and said the 2016 case involving Blake makes the need for that review even more pressing.
“It’s not enough to say ‘Well, maybe the results wouldn’t have changed.’ We don’t know that, and it’s not fair to the parents. They’re taking someone’s kid away. At least do it on fair, reliable evidence.”
CUSTODY from A1 “I did my job in my assessment and it is up to the judge to hear all the evidence and make a decision. It is not my job to second-guess what a judge decides.” MILTON BLAKE CLINICAL PSYCHOLOGIST