Custody and Access Assessments
In many cases, parents cannot agree about what custody and access arrangements are appropriate for their children. It is not uncommon for one or both parents to make allegations about the other party’s parenting capacity and ability to satisfy the needs of their child or children.
Section 30 (1) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, provides as follows: “The court before which an application is brought in respect of custody of or access to a child, by order, may appoint a person who has the technical or professional skill to assess and report to the court on the needs of the child and the ability and willingness of the parties or any of them to satisfy the needs of the child.”
If the parties cannot agree, a court order for an assessment would be necessary. However, if both parties wish to proceed with an assessment, most assessors would proceed based on a consent agreement.
The assessor is a neutral third party, who would conduct interviews with the parties, including the child. A thorough assessment should also include the following:
1) Interviews with any other individuals living with the person seeking custody or access;
2) Contact with important third-party collaterals that have significant involvement with the child (i.e. teachers, family doctors, relatives etc.);
3) A review of significant reports or records regarding the children and/or the parents; and
4) If necessary, psychological tests on the parents and/or the children if the assessor is a registered psychologist.
The assessor has the necessary expertise and qualifications to provide recommendations that are designed to assist the parties, their counsel and the Court to determinate the needs of the child and the custody and access arrangements that will be in the best interests of the child.
Historically in jurisprudence, there was a long line of cases that reserved assessments to a situation where there were clinical issues or pathology. However, cases such as Glick v. Cale, 2013 ONSC 893, 2013 CarswellOnt 1409 and Ryan v. Scott, 2013 CarswellOnt 9783, have made it clear that an assessment may be ordered where there are no clinical issues.
In Glick v. Cale, the Honourable Justice Kitely listed the following non-exhaustive list of factors that can be considered by the court in determining whether or not to order an assessment:
“(a) What was the parenting relationship like before separation? Did the parents function at least adequately before the separation and the dysfunction arose after the separation?
(b) Are the parents unable to make any decision about the child’s needs (including education, religion, health, and activities) without intervention by a court?
(c) Without defining “high conflict”, is the relationship between the parents so unhealthy that one or both parents is/are unable to identify the best interests of the child and act on it?
(d) Do the parents have a mutual disregard for the other parent’s ability to parent?
(e) Do the parents blame each other for the dysfunction each describes?
(f) Is there a clinical diagnosis that might impact on the parenting capacity of one or both parents?
(g) Is there a clinical diagnosis with respect to any of the children in the family unit that means the child is fragile and vulnerable to ongoing conflict and has special needs?
(h) What is the age of the child at separation and at the time of the request for the assessment?
(i) Is the child manifesting behaviour that might be associated with stress caused by the conflict between the parents?
(j) Is there an alternative? For example, is the child of an age and maturity that his or her views should be known and if so, would it be more appropriate to ask the OCL to become involved and appoint a lawyer to act for the child?
(k) Are there other challenges in the family such as whether the family home must be sold? If those challenges are resolved, will the family dynamic be improved and avoid the necessity of an assessment?
(l) What is the basis upon which the moving party relies? Is it essentially a mobility case on which the court must hear evidence? Is the issue of custody or access?
(m) What is the estimated cost? Do the parents have the financial resources to pay that cost?
(n) Will the assessment cause delay that is not in the best interests of the child? In considering the impact of delay, is it more likely than not that the delay necessarily involved in an assessment will enable the parents to have a better understanding of the family dynamic and arrive at a resolution without a trial?
(o) Is an assessment in the best interests of the child?”
There is still no definitive decision on the issue from the higher courts, and judges are free to follow either line of authority in determining whether or not to order an assessment. Contact family lawyer in Toronto Baker and Baker Family Law Firm today.
