An Ontario psychologist who testified she has conducted more than 100 assessments as an expert in child protection cases — including some in which children were permanently taken from their parents — lied about her credentials and was unqualified to perform the work, a judge has found.

Nicole Walton-Allen had “intentionally misrepresented her qualifications” since at least 2009, according to a December ruling by Ontario Court Justice Penny Jones in a case in which the Hamilton-based psychologist gave an expert opinion supporting the Halton children’s aid society’s request that all five children in one family should be placed in its extended care.

Walton-Allen, who made the recommendations in a report known as a parenting capacity assessment, is authorized by the College of Psychologists of Ontario to practise in the area of school psychology, but had repeatedly passed herself off as a clinical psychologist to increase her credibility as a mental health professional, Jones found.

“I find that (Walton-Allen) does not have the qualifications to complete such a report given the complexities of the issues involved and given her educational and professional background,” Jones wrote after tossing the psychologist’s 280-page report.

The fact Walton-Allen’s reports had been accepted as expert testimony in other courts, “is not binding on me,” ruled Jones, a longtime family court judge who normally presides at Toronto’s 311 Jarvis St. courthouse. “I suspect that the same decision I have made would have been made by those other courts if the facts known to me were also known to them.”

In a system where losing a child to the state is described by lawyers as the “capital punishment,” the damning findings against Walton-Allen raise the question of whether children were permanently taken away from their parents based partly or entirely on reports prepared by a psychologist found to be unqualified.

The case also highlights the fact that there are no clear rules on the type of professional who should be conducting a parenting capacity assessment, which typically looks at whether parents can address the child’s basic needs and whether there are supports available to them. The judge urged the College of Psychologists to fix this, saying these assessments can be “very influential” on a case.

“This is another Motherisk,” said Novalea Jarvis, the lawyer for the mother in the Halton case, who brought Walton-Allen’s credentials to the judge’s attention.

Jarvis was referring to the Hospital for Sick Children scandal, uncovered by a Toronto Star investigation, in which drug and alcohol hair samples from the hospital’s Motherisk lab were admitted as evidence in thousands of child protection proceedings even though they did not follow testing gold standards.

Like with the Motherisk scandal, Jarvis is calling for an independent review of all cases in which Walton-Allen submitted an assessment.

“I think it’s exactly the same,” Jarvis told the Star. “You have faulty testing — it can be faulty testing on the child who died, it can be faulty testing by way of a hair follicle test or can just be someone who comes to court and doesn’t have the proper credentials, training, education and experience.”

Tammy Law, the president of the Toronto chapter of the Ontario Association of Child Protection Lawyers, echoed the call for a review, saying that after Motherisk the next area of serious concern in the system is parenting capacity assessments.

“We need to know what went wrong here, and why did we rely on so many of these assessments, and what was the decision-making process,” Law said. “Was there any finding that was not reasonable, based solely on her opinion? Or largely on her opinion? It’s really troubling.”

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The Ontario Association of Children’s Aid Societies — an umbrella organization representing the province’s children’s aid societies — said it no longer supports the use of Walton-Allen’s services for parenting capacity assessments. The association did not answer questions as to when it became aware of Jones’ ruling and whether there should be an independent review.

“We take Justice Jones’ findings regarding the court-appointed psychologist in this case very seriously,” Nicole Bonnie, the association’s CEO, said in a statement to the Star. “Ontario’s children’s aid societies’ priority is the safety and well-being of all children, youth, and families and we continue to support the use of authorized individuals and services to inform and support the work.”

A staff member at the company founded by Walton-Allen, Behaviour Innovations, confirmed the psychologist received the Star’s email of detailed questions for this story. The Star received no response from Walton-Allen.

The psychologist co-founded Behaviour Innovations, which has offices in Hamilton and Toronto, in 1998. According to its website, the private agency provides psychological services to individuals with developmental disabilities, including autism.

According to Jones’ ruling, Walton-Allen had been approved to be the parenting capacity assessor by a different judge in the Halton case based on her CV, which said she was a clinical psychologist. The children’s aid society had proposed Walton-Allen and the mother, who was represented by a different lawyer at the time, consented to the choice.

After Jarvis discovered from the College of Psychologists that Walton-Allen was only authorized to practise in school psychology, she requested additional trial time to cross-examine her on her credentials.

In court, Walton-Allen testified that she had completed more than 100 parenting capacity assessments since 1992, and had spoken in court on about 20 of those assessments. She acknowledged she was not a clinical psychologist, Jones wrote, but believed she was well qualified to prepare parenting capacity assessments.

Walton-Allen provided a variety of reasons in court for why so many materials listed her with that designation.

It was a staff member’s error that the title appeared on her CV, she said. (She later submitted a corrected CV to court.) When asked why two earlier reported court decisions referred to her as a clinical psychologist, she said she did not notice the error on her CV at the time and did not hear the judge in the case qualify her as a clinical psychologist.

She denied being aware that her LinkedIn page (which can no longer be found online) and company website listed her as a clinical psychologist. (The website, which no longer describes her as a clinical psychologist, did so as recently as August 2018, according to an online archive.)

“Her denials strained credulity,” the judge wrote in her ruling.

But the final straw for the judge was a letter that Walton-Allen “dictated, read and sent” to a psychiatrist in the Halton case. In it, she said: “I am the clinical psychologist assigned to do a court-ordered parenting capacity assessment.”

Walton-Allen could not provide the court with an explanation for how that could have happened, the judge found.

“I became convinced that she had been intentionally using the clinical designation to increase her credibility as a psychologist,” Jones wrote.

With Walton-Allen’s report struck, and following a trial that heard from a number of witnesses, the children’s aid society conceded that the two youngest children should be placed in the mother’s custody with conditions, Jarvis told the Star.

Had the report been accepted, “I think my client may not have gotten the children back,” Jarvis said.

The mother had also consented to having her three oldest children placed in the society’s extended care, with access to them, due to their specialized needs, Jarvis said. She specified that Walton-Allen’s report had no bearing on that decision.

The mother, who is identified as J.B. in the ruling under the strict publication ban imposed in child protection cases, told the Star in a statement that she was “shocked” when she received Walton-Allen’s assessment. “How could the assessor say I could not parent any of my children safely when I had previously cared for my children for over 10 years on my own?”

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“I have now had my two youngest children in my full-time care since December 2018 and have been able to safely parent my children from then to the present contrary to the findings of Dr. Walton-Allen,” she said.

(The children’s father, identified as D.T. in the ruling, indicated he did not intend to participate in the trial, the judge said.)

A 2008 academic article in the Canadian Journal of Family Law found court-ordered assessments in child protection cases are “among the most challenging forensic assessments that mental health professionals undertake” and can be heavily relied on by the courts.

The result of a child protection proceeding was consistent with the recommendations of the assessor in almost 80 per cent of cases, according to a survey of 27 judges included in the article. Yet despite their critical importance to a case, there are no clear rules regarding who should be doing the assessments.

“Without accepted standards for professionals carrying out (assessments), there is a significant risk that some of those who are preparing assessment reports may not be competent to undertake the work,” wrote the article’s authors, Queen’s University family law professor Nicholas Bala and Alan Leschied, a psychologist and professor in the faculty of education at Western University.

The assessment analyzes the child’s attachment to the parents, the child’s “cognitive, behavioural and emotional adjustment,” the parents’ ability to provide for basic needs and whether they have any mental health or addiction issues, according to the article.

Jones’ ruling did not indicate how much Walton-Allen charged for the assessment. David Miller, treasurer of the child protection lawyers’ association’s Toronto chapter, told the Star that the society typically pays for the assessment, which lately can range in price from $3,000 to $5,000. Jarvis said that in her experience they can range from $13,000 to $20,000.

In the Halton case, Jones heard testimony from College of Psychologists registrar Rick Morris, who said that, to his knowledge, most parenting capacity assessments are done by clinical psychologists. He testified that a school psychologist probably wouldn’t have training to the same extent in more serious psychological disorders, including schizophrenia.

Morris also said in court there is no rule that states only clinical psychologists can do the assessments, something the judge said needs to change.

“I would urge the College of Psychologists of Ontario to review this policy in light of the recent miscarriages of justice that have resulted from unqualified expert opinion evidence being accepted by the court,” Jones said in her ruling.

Morris told the Star in an email that it is not the practice of the college to set specific qualifications or experience necessary to perform a particular type of assessment.

“Members of the College of Psychologists conduct a wide variety of assessments and utilize a very broad spectrum of intervention techniques. Each requires knowledge, training and skill specific to the nature of the assessment or type of intervention,” he said.

It is professional misconduct for a psychologist to intentionally make misleading public statements about their area of authorized practice, Jones noted in her ruling. (J.B. filed a complaint against Walton-Allen with the college around October 2018, her lawyer said, but has yet to get a decision as to whether it will be sent to a discipline hearing.)

The judge compared the college’s definitions for school psychology and clinical psychology in coming to her decision. She noted that a school psychologist would have training “in the administering of psychological testing with a focus on learning issues and an ability to perform an appropriate psychological assessment and be able to plan, execute and evaluate an appropriate psychoeducational intervention.”

A clinical psychologist can diagnose and/or treat individuals with disorders of behaviour, emotions and thought, the judge wrote. Clinical psychologists require knowledge of a number of areas and must be able to come up with a diagnosis and plan and execute an appropriate treatment program, Jones wrote.

Among other things, the court had tasked Walton-Allen with examining whether the parents had any “cognitive, psychiatric, psychological or mental health issues” which could affect their ability to parent the children.

Looking at the assessment, Jones concluded that it would fall within the clinical area of practice, as it made “far-ranging recommendations and comments about personality and psychopathalogy, abnormal behaviour and prognosis for change.”

Dr. Javeed Sukhera, the interim chair of the division of child and adolescent psychiatry at Western University, agreed that the assessments are traditionally done by child psychiatrists or clinical or forensic psychologists, due to the expertise required.

“It’s pretty complex, you need to have knowledge about the way the brain functions, knowledge about human cognition, knowledge about the concept of capacity, and how to make those assessments,” Sukhera told the Star. “But you also need to have a deep knowledge of child development and about how children and young people live and function in the world.”

Law, the head of the child protection lawyers’ association’s Toronto chapter, said she wants to know how many cases involving a Walton-Allen assessment did not end with a judge’s ruling — such as instances in which parents decided to settle.

“I question in cases that aren’t reported, whether parents were forced, coerced or pressured into agreeing to Crown wardship, or giving their children to family members,” she said. “There is a real concern about miscarriages of justice.

“But as we saw in Motherisk, it’s very hard to turn this stuff around. The child has been adopted. What do you do?”

In her statement to the Star, J.B. said that the children’s aid societies must investigate the credentials of the assessors they propose to the court, and must properly scrutinize the parenting capacity assessment when they receive it, as should all other parties in a child protection proceeding.

“I believe that there needs to be an investigation into any court matter wherein Dr. Walton-Allen was the assessor,” J.B. said. “There needs to be more protection for the public from experts who are not qualified.”

Jacques Gallant can be reached at jgallant@thestar.ca.

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