"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 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."

So reads section 30 of the Children's Law Reform Act of Ontario, very similar to s. 15 of the British Columbia Family Relations Act.

Many families disintegrate into disagreement on where a child should live, with which parent, and with what visitation or access rights to the noncustodial parent. With time, stepparents form part of the picture as will, increasingly, the views of the child.

Indeed, the older the child, the less relevant and helpful a custody and access assessment (see Views of a Child & Separated Parents: Living With Dad or Mom). But for younger children, certainly those 13 and younger, custody and access assessments can greatly enhance the knowledge available to the court in making a decision in this complex and gut-wrenching area of law. As one local supreme court judge recently said to me, and I believe it to be true, this is only one kind of case that keeps him awake at night.

Can you see the fiveAnalysis and dispute resolution in regards to families and children will never be a science. When the courts need assistance, they turned to social scientists, mostly psychologists, although where money is an issue, and with a bit of luck, a competent counselor or social worker might also be able to bring to bear the necessary judgment and wisdom.

A custody and access assessment is different from a views of the child report, the latter merely reporting a fact-finding mission as to the child's perspective.

Assessments Are Invasive

The first reality of custody and access assessments is that they are very invasive, often including IQ tests and other psychological and personality testing, and a review of personal information relevant to parenting, all of which is shared with an ex-spouse and possibly her new partner.

Custody and access assessments sometimes rely far too much on psychological testing, as opposed to good ol' common sense. If you can see the five in the image to the left, can you take care of your daughter?

Sometimes, but rarely, sexual history can be relevant to parenting in which case, the assessor will have to report on it.

Indeed, anytime information like this is put in a document, there are significant privacy issues. Recently, there was a local case where an extremely sensitive custody and access assessment had been found discarded in a public waste paper basket.

As far as the children go, there is no such as thing as super-kid.

No child is immune to the deep and profound impact the separation of their father and mother causes.

Many of these children are in a state of emotional turmoil, or already in counseling or therapy, when a custody and access assessment is thrust upon them. It is often the last thing they want; which they resent as further therapeutic treatment, or a parent's attempt to force something on them.

Frankly, sometimes a custody and access assessment can be the straw that breaks the child’s back; her or his goodwill towards essential therapy.

Conversely, custody and access assessments are not generally recommended if there are no clinical issues - so some therapy fatigue may be unavoidable.

In Linton v Clark:

"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."

If there are no pathological issues to explore, why thrust a child into such an assessment?

Dixon v Hinsley:

"The decision of what is a proper custody or access order is, of course, up to the judge and not to an assessor. A judge cannot delegate his or her decision-making power to an assessor. If there is no clinical issue requiring an expert’s evidence then an expert’s opinion is of no more persuasive weight than anyone else’s."

Children are often set up for custody and access assessments, either intentionally or unwittingly. Even the best-intentioned parent would want to tell a child what is going on before dumping the child off at the office of a custody and access assessor. Always ask the assessor what to say the child as a lead-up to the child participation in the assessment; do not wing it yourself because anything you say to the child may be parroted to the assessor and find its way into the assessment drawing an adverse inference against you.

In some jurisdictions, it seems like all you have to do is ask for an assessment and the order issues. One train of precedent is as set out by Justice Hood of the British Columbia Supreme Court who suggested that:

"The purpose of (an independent assessment in a child custody case) is to assist the Court in its task, and it is for the Court to decide whether such a Report will be of assistance, based on the subject matter, the evidence and the assertions of the parties before the Court. And when the family matter concerns the evidence or views of children, or their emotional state, matters of much importance to the Court, the threshold requirement for the obtaining of an Assessment and Report of a neutral ... expert, to assist the Court, should be minimal."

Assessments Are Expensive

A good custody and access assessment usually costs between $3,000-$8,000, depending on the going rate for the selected professional, travel time, testing required, etc.

Always get an estimate from the assessor before starting the process.

It is the practice in Canadian law, though not a rule, that the litigants share equally in the cost of assessment. However, where one party does not have the ability to pay, it would be pointless for the court to order any cost-sharing. In that case, it should be the parent asking for the assessment that pays for it fully.

 

As Justice Granger said in Linton v Clark:

"The cost of an assessment and the length of time required to complete such an assessment must be taken into account by a ... judge when asked to order an assessment of the needs of the children and the abilities of each parent to satisfy such needs.

"Assessments should not be ordered in all cases as a vehicle to promote settlement of custody disputes.

"If the legislature had intended that assessments were to be a vehicle to settle custody disputes, the legislation would have mandated assessments in all cases."

It is not a fair system where only the rich have assured access to this sometimes useful tool, but the cost of these assessments is a very real difficulty in many family law cases, regardless as to how helpful either or both of the parents believe it might be.

Assessments Take a Long Time

A custody and access assessment rarely takes less than a month. My experience is that they generally take between 5-8 weeks. For time-sensitive situations, such as an imminent relocation, this can be a real problem. Conversely, I would not put it past certain lawyers to use a custody and access assessment as a delay tactic, as the assessment can suspend the trial clock by at least two months. In Sheikh v Sheikh, the mother wanted to relocate to England with the young child; the father was opposed. He asked for a custody and access assessment. In rejecting the application, the judge said it was a "delaying tactic".

The other difficulty is that an assessment quickly becomes dated such that if it takes too long to get to hearing, the recommendations may no longer make sense.

Assessments Rock!

Judges usually give considerable weight to the recommendations of a custody and access assessment.

In legal theory, it is the judge's job to decide what is in the best interests of the children; not a psychologist. However, practically speaking, a solid and well thought out custody and access assessment, particularly one where the assessor presents well in court, is usually persuasive.

You will sometimes see a party commission a critique of a custody and access assessment report that they do not like. The judicial reception of these critiques is mixed.

A custody and access assessment can be attacked on several grounds:

1 ► The assessment is sloppy or the assessor made errors such as in professional methodology or incorrect assumptions of facts or there was a lack of proper credentials to conduct the assessment.

Most provincial registration boards of psychologists have guidelines for custody assessments. In Canada, there is a national standard as adopted by Alberta which mandate consideration of the following "child-related factors":

  • The personality and character of the child;
  • The health and emotional well-being of the child, including any special needs for care and treatment;
  • The physical, psychological, social and economic needs of the child;
  • Education and training for the child;
  • Where appropriate, the views of the child;
  • Positive emotional bonds that exist between the child and each person to whom the child's custody may be entrusted, each person to whom access to the child may be granted, and, where appropriate, each sibling of the child;
  • The role of extended family in the child's life;
  • The child's cultural and religious heritage;
  • The length of time each child has lived in a stable home environment; and
  • The effect upon the child of any disruption of the child's sense of continuity.

Were criminal record checks done? Was an available child protection file canvassed? Were school records looked at?

As stated in R v McIntosh:

"(T)he courts are overly eager to abdicate their fact-finding responsibilities to ‘experts’ in the field of the behavioural sciences. We are too quick to say that a particular witness possesses special knowledge and experience going beyond that of the trier of fact without engaging in an analysis of the subject matter of that expertise."

2 ► The assessor demonstrates a bias or preconceived views which favour one of the parties. For this reason, a custody and access report that is done on the sly or arranged by only one party without a court order behind the appointment. An appointment order has the significant evidentiary advantage of making the report that of a Court-appointed expert and not that of an expert hired by one of the parties; or

3 ► The assessment is dated - too much time has passed since the assessment and the date of hearing.

Who Chooses the Assessor?

Over time, especially in smaller communities, family law lawyers tend to develop professional or personal relationships with custody and access professionals leading to a personal preference in selecting assessors. A litigant ought to always be on guard against this.

Another concern is where both parties present a different assessor, the court will be forced to choose between them which, of course, leaves a bad taste with the litigant whose assessor was not selected.


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