Custody/Access Assessments

INTRODUCTION

This article addresses some challenging matters connected with custody and access assessments. I will attempt to familiarize the reader with some of the important factors that must be considered before, during and after the completion of the assessment process. The following topics will be addressed:

What is an assessment?

According to Dr. Barbara Landau and others (Landau, Bartoletti, Mesbur: Family Mediation Handbook, page 22), "Custody-access assessment is a process whereby a trained professional prepares a report about the parenting arrangements that may best meet the child's needs, given the capabilities of the parents."

Of course, an assessment is much more than a report. It encompasses a very crucial aspect of one's case whereby information is given over to the assessor in a variety of ways: affidavits, letters, interviews, psychological testing, reports from other professionals such as teachers, physicians, and others. Based upon all the information received by the assessor, only then does he/she prepare the report. The assessment process may also include further meetings with the assessor either just before or just after the release of the report. The assessor's evidence may be required in court where it can be tested by cross examination.

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Authority to conduct an assessment

The authority to conduct an assessment with respect to the custody of and access to a child is found in Ontario's Children's Law Reform Act, section 30. Subsection 1 permits, but does not mandate the court, to "appoint a person who has technical or professional skill to access 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." [my emphasis]

Under section 112 of the Courts of Justice Act, the court may request the Office of the Children's Lawyer to conduct an investigation and report to the court on matters of custody, access, child support and education. Such a report may include recommendations. Such investigations are normally carried out by social workers on staff with the Children's Lawyer Office. These "assessments" are of a different breed than assessments conducted by private individuals pursuant to section 30 of the Children's Law Reform Act. My talk will centre principally upon the section 30 assessment, although some of my comments might also apply to the Children's Lawyer situation.

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Is an assessment always ordered when custody or access is disputed?

An assessment should not be ordered as a matter of course. The previous prevailing view was that if these issues were contested, then the court would order an assessment almost as a matter of course. Some judges may still hold to this view. In the Supreme Court of Canada decision of Young v. Young, [1993] S.C.R. 3 at 87, 49 R.F.L. (3d) 117 at 213, the wisdom of a knee jerk reliance upon experts was questioned by Justice L'Heureux-Dube (in a dissenting opinion):

In the absence of clear legal presumptions about the best interests of children, judges have increasingly come to rely on the recommendations of experts to determine custody and access issues, believing that such experts possess objective, scientific knowledge and can in fact "know" what is in the best interests of the child. However, expert testimony, while helpful in some and perhaps many circumstances, is often inconclusive and contradictory (Gelinas and Knoppers, at p. 17). That this should be so is not surprising, since such assessments are both speculative and may be affected by the professional values and biases of the assessors themselves.

Even where such expertise is valuable, there are impediments in such reliance. Assessments may occasion delays in resolving proceedings and may at times constitute a significant disruption in the lives of both parents and children. The cost involved in routinely hiring experts to establish the best interests of the child only increases the expense of custody litigation and is far beyond the resources of most divorcing couples. Furthermore, as Professor Bala points out, at p. 224, "much of what assessors ultimately recommend may simply be a matter of 'common experience and common sense' ".

Given these concerns, while the evidence of experts may form a valuable and necessary part of some custody and access decisions, most of the time they are unnecessary to an ordinary determination of the best interests of the child. Nor does the prospect of access restrictions inevitably require resort to expert opinion, as it may be apparent to the judge from the evidence of the parties and often the children themselves that access should only be granted subject to certain conditions.

(my emphasis)

A number of cases have held that the appointment of an assessor requires the court to exercise discretion. In other words, the order is not granted simply because one side asks for it. [Mantesso, unreported, 20 February 1991, Ont. Gen. Div., summarized in O.F.L.R. 4:084; Chapman (1985), 49 R.F.L. (2d) 47 (Ont. Dist. Ct); Hampel (1983) 31 R.F.L. (2d) 462 (Ont. Dist. Ct); Booth (1983), 33 R.F.L. (2d) 330 (Ont. H.C.); Saffin (1991), 35 R.F.L. (3d) 250 (Alta Q.B.).]

Some cases highlight the perceived necessity of not ordering assessments in every case.

  • Linton v. Clarke (1994), 10 R.F.L. (4th) 92, 21 O.R. (3d) 568, 76 O.A.C. 363 (Ont. Div. Ct) (Nb. Linton was questioned in Krames v. Krames, [2003] O.J. No. 1418.)
  • Children's Aid Society of London & Middlesex v. P. (A.) (1996), 22 R.F.L. (4th) 270 (Ont. Gen. Div.)
  • Fattali v. Fattali (1996), 22 R.F.L. (4th) 159 (Ont. Gen. Div.)

In one case, Linton was distinguished: Meldazy v. Zamparo (1996), 16 O.T.C. 406 (Ont. Gen. Div.)

Some cases suggest that one must show that there is some clinical issue upon which the court would benefit from the input of a trained professional. In Linton, the Divisional Court stated: "In my view, assessments should be limited to cases in which there are clinical issues to be determined, in order that such assessments can provide expert evidence on the appropriate manner to address the emotional and psychological stresses within the family unit in the final determination of custody." However, some of the other cases may take a less restrictive approach.

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Effect that the assessor's report may have on one's case

If the assessor followed correct methodologies, then the report will be entitled to very serious consideration. A comprehensive and persuasive report often results in a negotiated settlement. In my experience, most cases tend to settle following release of the assessor's report.

However, if the assessor made factual errors, if the assessor failed to gather pertinent information that would impact upon how a judge would decide the case, then the assessor's report need not be the end of the matter. The case should still be pursued so that the relevant evidence can be placed before the decision maker, before the judge, and a proper decision rendered.

Where the assessor does not interview the relevant parties, or where the assessor merely relies upon psychological tests without meeting the parties, or where the assessor failed to interview a number of interested persons who supported one parent, or where the assessor's recommendations are perceived to be contrary to the law - then the court is entitled to disregard the assessment:

  • Marple (1983), 5 F.L.R.R. 158 (Ont. H.C.);
  • Olver (1987), 6 R.F.L. (3d) 334 (Ont. C.A.);
  • Fasan (1991), 32 R.F.L. (3d) 121 (Ont. Gen. Div.);
  • Carlson (1991), 32 R.F.L. (3d)381 (B.C.C.A.);
  • Avitan (1992), 38 R.F.L. (3d) 382 (Ont. Gen. Div.);
  • M v. M. (1992), 40 R.F.L. (3d) 1 (Ont. U.F.C.)

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Importance of choosing the "right" assessor

It is exceptionally important to choose the "right" assessor. For example, if the allegation is that the other parent suffers from a serious psychiatric disorder that constitutes a danger to the children, you do not want to choose a social worker. Rather, you will try to find the best psychiatrist available. If there are no allegations of psychiatric or psychological disorder but rather, the allegations are that the other spouse is overly manipulative with the children, places the children's needs after her or his own, and leads a hectic and disordered life style - then a social worker may very well be appropriate for such a case. Each case must be examined with a view to hiring the appropriate type of professional to conduct the assessment.

A parent who was advocating a shared parenting or joint custody arrangement would not want to choose an assessor who had never recommended joint custody. A parent who is alleging abuse by one spouse against the other in the presence of the children, would not want to choose an assessor who believes that such abuse is not relevant to good parenting.

It is very important to know your assessor. One empirical study has examined the "procedures and beliefs of child custody assessors". [Caplan and Wilson: Assessing the Child Custody Assessors (1990) 27 R.F.L. (3d) 121.] Two hundred and twenty professionals responded to a questionnaire mailed to them by the researchers. The results were remarkable and shed much light upon the factors that clients and their lawyers should consider before deciding upon which assessor to retain.

  • Two percent of the 220 respondents described their sexual orientation as other than heterosexual while 21 per cent considered their sexual orientation to be relevant to their conduct of assessments. 22.5 per cent believe that the residential parent's sexual orientation should not be homosexual (but I wonder whether a survey conducted today would reveal different results).
  • 82 per cent felt that their professional discipline was relevant to their assessment approach.
  • 37 per cent felt that their age was relevant to their assessment approach.
  • 39.5 per cent felt that having English as their first language or "minority group" membership affected their approach.
  • 58 per cent of the respondents said they practiced their religion and 22 per cent described themselves as agnostics or atheists. 24.5 per cent of the respondents considered such factors relevant to their assessment approach.
  • Twenty and one half per cent said the reputation of, or their knowledge about, either lawyer affects their assessment while only 2 per cent regularly disclose to one side the number of cases referred to them by the other side's lawyer.
  • Nearly one half of the assessors who responded reported that they believed that infants and young children should live with their mothers. Nineteen per cent believe that female children should live with their mothers.
  • Less than one third believe that adults rarely lie when they say their ex- spouse has sexually assaulted or hit them.

The researchers conclude (at page 128) that some of the above factors "appear to be powerful indicators of biases in large proportions of assessors." Assessors may be biased. It is important, it is crucial, to know what biases a proposed assessor may have.

The methodology employed by the assessor is important. Given the wording of the Children's Law Reform Act, one would think that absent a court order to the contrary, the assessor's function is to simply "assess" and then report to the court. One would think that conducting a mediation - i.e. sessions whereby the professional attempts to assist the parties to reach their own negotiated resolution - would not be part of the process. Likewise, assessing and reporting does not include a mandate to effect change in a person's life. Nonetheless, the Caplan/Wilson study shows that only 20.5 per cent of the assessors inform the clients ahead of time that mediation is a standard part of their assessment and that the same percentage inform the clients that they see the assessor's role as effecting change. The question arises - do only 20.5 per cent engage in such practices and tell their clients or do most of them engage in the practice and only 20.5 per cent inform the clients of what is going to happen?

Other disturbing findings of the study are:

  • Eight per cent do not see the children.
  • Only 80 per cent regularly see each parent with the child.
  • Only 73 per cent regularly see the parents' new spouses or partners with the children.
  • Only 75 per cent regularly obtain third party information.
  • Only 71 per cent obtain information from previously involved clinicians.
  • Thirteen per cent do not inquire with respect to psychiatric histories of the parents.
  • 43 per cent do not request to see the relevant court documents.
  • Between one third and one half do not feel comfortable with their understanding of the law as it relates to mobility, homosexuality, child's wishes, AIDS, and child support.
  • Substantial portions of the respondents had not within the past two years read clinical literature that impacts directly upon the issues that they are asked to examine.
  • Twelve per cent report that they do not think through various parenting arrangements before making their recommendations.

The conclusions to be drawn from this study and from this speaker's personal experience are as follows:

  • An assessor may be biased.
  • Those who access the services of an assessor should attempt to ascertain those biases, beliefs and procedures in advance.
  • While more study and investigation of assessors is required, the lawyer and the client should make extensive inquiries of any proposed assessor and they should determine how the particular assessor's approach may impact upon the client's case.

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Can a second assessment be ordered?

An assessment report may be produced that is quite contrary to the position advocated by one side. If glaring procedural errors have been made and if those errors affect the substantive outcome, then effective cross examination of the assessor may be able to discredit the recommendations and no second assessment may be required.

However, there may be situations where it would be advantageous to ask the court to order a second assessment. The first assessment may be outdated. (Although in one case, an assessment report was one and half years old and the court declined to order an update. [Zapora, unreported, Ont. Gen. Div. 21 March 1991, Thunder Bay Action No. 353507999/89]) The first assessment may be of doubtful validity in light of further evidence presented to the court, and there could be other reasons that might convince a court to order a second assessment.

Some examples of cases where additional assessments were ordered are as follows:

  • Britton (1991), 37 R.F.L. (3d) 253 (Ont. Gen. Div.): There were two contradictory assessments. The court ordered a third assessment.
  • S.P.M. v. M (W.B.) (1988), 15 R.F.L. (3d) 301 (Ont. H.C.): The first report appeared to be defective or incomplete.
  • Knockwood v.Smith, unreported, N.S. Fam. Ct, 27 May 1991, Doc. No. H-84-376/91: The judge ordered a second assessment, being of the view that the assessor's underlying conclusions may not have been valid because of a misapprehension of the father's life circumstances. A further reason for ordering a second assessment was that the father may not have "fully understood the nature of the procedural and technical requirements to adequately assist the lawyer present his case." The judge stated: "The sole purpose of taking this unusual step is the possibility that his full story has not been told. "

Whether or not a second assessment will be ordered involves not only an examination of the relevant case authorities, but also an examination of various factors including your own lawyer's cost, delay, the possibility that the additional assessment will be no more helpful than the first, the further stress caused to the family by the continuing indecision, and the possibility that a motion requesting the additional assessment may be lost with the consequent adverse court cost consequences.

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What preparation is required before commencing the assessment?

A great deal of preparation involving both the lawyer and the client must occur before and during the assessment process.

The lawyer must make sure that the assessor has a complete copy of the affidavits and other pleadings as well as all relevant documents that have been produced thus far in the litigation. The client should be fully familiar with the contents of the affidavits and other documents.

The lawyer and the client must fully discuss the purpose of the assessment and in what manner the client is to conduct him or herself in front of the assessor. The lawyer must let the client know what to expect during the assessment process. For example, if the assessor is to make a home visit, the lawyer should impress upon the client the importance of the home being presentable. A further example - the lawyer must explain to the client the neutral role of the assessor and how best to relate to the assessor who plays that neutral role. However, nothing I state here should be taken to suggest that the lawyer should be encouraging the client to present a false picture to the assessor; rather, there are ways that one can put his/her best foot forward and the lawyer can assist with that exercise.

The lawyer and the client should determine what collateral sources should be requested to be interviewed and what sources should write short letters to the assessor.

The lawyer must review with the client what facts are likely relevant and what facts are not relevant. The latter should not be raised with the assessor. The lawyer should advise the client that the assessment process is not an opportunity to attack the spouse. Rather, its purpose is to assist the court with determining what parenting arrangements are best for the children. Gratuitous attacks on the other spouse will only hurt one's own case. On the other hand, a frank acknowledgment of the other spouse's good parenting abilities serves to increase one's own credibility.

The lawyer and the client should discuss the nature of the parenting plan that the client will suggest to the assessor.

The lawyer must advise the client to refrain from manipulating the children in any way during the assessment process. Such manipulation will likely backfire.

The lawyer and the client must discuss the importance of remaining in touch during the assessment process so that the lawyer can monitor the progress and attempt to remedy any particularly disturbing matters.

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Conclusions

Some of what I have discussed may sound overly technical or confusing to the lay person. This hopefully brings home to the lay person that when you are dealing with such crucial issues as parenting arrangements for children after separation and divorce, a great deal of forethought, planning, strategizing and yes, soul searching, must go into what must be the joint team effort of the lawyer and the client.

We have discussed what the assessment process is.

We have touched upon the legal authority that permits such procedures to take place within our court litigation system.

We discovered that whether or not an assessment is always ordered depends upon the attitude of the judge and the judge's approach to the legal precedents.

We have learned that an assessor's report normally has a very significant effect upon the conduct of the litigation - resulting most often in settlement and sometimes in an attack upon the assessor's methodology.

Choosing the "right" assessor is an all important first step that is not given enough consideration by counsel and clients. One Canadian study informed us of some rather shocking biases and attitudes or predispositions amongst assessors in this country. This study impressed upon us the necessity of investigating your proposed assessor before retaining him or her.

We learned that sometimes the court will permit an additional assessment to be conducted. However, whether or not one seeks such relief from the court entails astute strategizing by the lawyer and the client.

Most recently, we discussed the considerable amount of preparation that a lawyer must invest with the client in order to maximize the chances that the relevant facts will be presented in a credible manner to the assessor.

Custody access assessments are very serious business. Assessments may very well determine the outcome of one's custody/access case. Careful attention to the dynamics of the process is required in order to maximize the chances of placing the best evidence before an assessor who will use it to the maximum advantage of the family.

NOTE: This article, like the other articles at this web site, does not constitute legal advice. As to how the law may affect one's own situation, one should consult one's own family law legal advisor.

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