Section 30 of the Children’s Law Reform Act allows courts to order the appointment of a third-party assessor to assist in deciding issues of decision-making responsibility and parenting time as well as contact time. The assessor’s recommendations can be used as evidence and help courts to determine the child’s needs and what parenting arrangements are in their best interests. However, these assessments are not routine and will only be ordered if certain conditions are met.

Assessments Should Not be Ordered Routinely

Section 30(1) of the Children’s Law Reform Act states that a court 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”. This assessment can then be used as evidence in a proceeding.

The case of Baillie v. Baillie identified two lines in the case law concerning section 30. Some courts interpreted the section liberally and were prepared to order assessments whenever it may be in the best interests of the child. For Justice Pazaratz, this emerged out of the “increasingly holistic approach to children’s issues” and a desire to use all available resources to help resolve a dispute. However, he determined that the prevailing and preferred approach was to view section 30 as providing a specific and narrow window to order assessments, which was consistent with Linton v. Clarke, which held that assessments should not be routinely ordered. Linton also warned that assessments should not be routinely used simply as a vehicle to promote the settlement of parenting disputes.

The party who is proposing an assessment has the burden of satisfying the court that the assessment is justified. In A.A. v. D.S., Justice Chappel noted that the decision on whether to conduct an assessment “is a highly discretionary one that requires the court to carefully consider all of the circumstances of the parties, their parenting, their overall functioning and well-being and the particular needs of the child”. The question is whether the court requires assistance from a professional to “determine the needs of the child” and the “ability and willingness of the parties to satisfy those needs”. Consequently, before ordering a section 30 assessment, a judge needs to be satisfied that the assessment will provide evidence that is relevant to the parenting issues and that would also assist the court. Courts have accepted that section 30 is a tool that can assist with decision-making, but as noted in Baillie, if courts have sufficient evidence and can decide the issues without the assistance of an assessor, an assessment should not be ordered.

Assessment Must Provide Insight on Parenting Issues in Case

Some courts have found that assessments should be limited to cases where there are clinical issues and expert evidence can address the “emotional and psychological stresses within the family unit”. Glick v. Cale specifically addressed whether a clinical issue is required before a judge can order an assessment. And in that case, the judge determined it is not. To begin with, it was not a criterion that was included in the statute. Moreover, judges are not trained to identify clinical issues, and Justice Kiteley found there was no basis for judges to be able to determine if clinical issues were present in a case. Consequently, it could not be a prerequisite for a judge to order an assessment under section 30. Instead, other courts have emphasized that the inquiry into ordering an assessment is “fact-driven and flexible”. Similarly, in A.A. v. D.S., the court suggested that instead of focusing on the presence of clinical issues in a case, it was more appropriate to focus on whether the assessment is likely to be relevant to determining the parenting issues in the case. The presence of clinical issues was merely one reason why an assessment might be necessary.

Considerations for Section 30 Assessment

In Glick, Justice Kiteley outlined a non-exhaustive list of criteria that can be considered when deciding whether a section 30 assessment is justified. This can include considering aspects such as:

– the parenting relationship before separation;

– the parents’ ability to make decisions about a child’s needs;

– whether the parents have mutual disregard for the other parent’s ability to parent; and

– whether the assessment would cause delay that is not in the best interests of the child?

However, in practice, the decision will depend on the unique facts in each case. In A.A. v. D.S., the court explained that the assessor would provide expert evidence concerning the child’s needs and the ability of the parents to meet those needs. Therefore, if a court is satisfied that it can decide the issues with the available evidence, an assessment should not be ordered. Instead, the assessor’s opinion should provide information outside the knowledge of the judge or help the judge “appreciate the matters in issue”.

Additionally, the benefit of expert opinion on the dispute must be weighed against any disadvantages. As noted in Baillie, assessments are expensive, intrusive, and time consuming, and the prospective benefits must offset any harm. Justice Pazaratz acknowledged the danger that assessments can make family dynamics worse, and warned that courts need to consider “whether an additional layer of investigation can be justified, bearing in mind the potential negative impact of having children further drawn into the court process”.

Assessor Can help Court Decide on a Parenting Plan

In Cibuku v. Cibuku the father sought equal parenting time with the parties’ two children. The mother objected and sought an assessment under section 30, which the father resisted. The judge looked to the suggested criteria set out in Glick to evaluate the request. Looking at their parenting relationship, it appeared the dysfunction between the parties arose after separation. They could not consistently make decisions about the children’s needs without court intervention and could not agree on issues such as the children’s education and enrollment in activities. In fact, the judge found that the relationship between the parents was so unhealthy that the father failed to act in the best interests of the children. He did not acknowledge the mother’s ability to parent, while the mother accused the father of harmful behaviour, such as denigrating her in front of the children. Both parents ultimately blamed the other for the dysfunction.

When it came to the presence of a clinical diagnosis that might impact the parenting capacity, there was no evidence of a diagnosis, but the children were “vulnerable to the ongoing conflict between the parents”, and one child was seeing a therapist for anxiety and anger issues. Justice Vella found there was an emotional or psychological issue that seemed to be associated with the dynamics between the parents. Additionally, as there were allegations of aggression and harmful behaviour, it was felt that independent expert opinion on the needs of the children and the parents’ abilities would be beneficial in determining a parenting plan. Looking at this holistic analysis, the judge was satisfied that a section 30 assessment was required.

Courts Must Balance Benefits Against Possible Harms

A section 30 assessment can assist judges in understanding the issues in a parenting dispute. But an assessment cannot be used simply to obtain a third-party opinion on what arrangements may be in a child’s best interests. These assessments are not routine, and in considering whether to order an assessment, the court must balance the potential benefits against the possible disadvantages.

Contact the Divorce Lawyers at NULaw in Toronto for Advice on Parenting Time Disputes

Whether you are contemplating a separation, or are prepared to commence divorce proceedings, it is important to consult with an experienced family lawyer who has experience with decision-making responsibility and parenting time matters. At NULaw in Toronto, our knowledgeable family law lawyers provide tailored and practical legal advice to empower clients to make informed decisions about their parental rights. Contact us online or by phone at 416-481-5604 to book a confidential consultation.

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