When parents are going through a separation or divorce, determining parenting arrangements can sometimes be contentious. Sometimes, the Office of the Children’s Lawyer may become involved in a case and complete an assessment. This report may be used to make recommendations regarding what arrangements would be in the best interests of the children. In some disputes, this report may also be introduced as evidence which can significantly guide a court in determining what arrangements will be best for the children. However, there are instances where a party may seek to rely on the report regarding interim parenting arrangements before the trial. So, what weight can be given to a report on a temporary motion? Further, can a party challenge the use of the report?

Courts are Reluctant to Implement Recommendations on an Interim Basis

In Ontario, jurisprudence has shown that courts are generally hesitant to enforce recommendations concerning interim issues. In the case of Denomme v. Denomme, the father commenced an application regarding the parenting schedule and sought to rely on a report from the Office of the Children’s Lawyer (hereinafter referred to as the “OCL”). An OCL investigator had been appointed under section 112 of the Courts of Justice Act. The father maintained that he only requested a minor change to the current schedule. However, the change would reduce the number of exchanges between the parties and reduce potential conflict opportunities. Further, the change was recommended by the OCL.

Conversely, the mother sought to keep the schedule the same, and she objected to the use of the report. She alleged collusion between the father and the OCL investigator and claimed the OCL should not have made the recommendations it did.

The Court recognized that it should be cautious about implementing OCL recommendations on an interim basis. Prior cases, such as Grant v. Turgeon, held that when dealing with motions for interim parenting orders, it is preferable to maintain the status quo unless compelling reasons require a change to meet the child’s best interests. Further, courts have recognized that it is not generally in a child’s best interests to change the status quo parenting arrangements on a temporary motion, particularly if the status quo has been in place for a long time and is working well for the child, as was the case in Daniel v. Henlon.

Overall, Justice Piccoli found that “compelling reasons to change the status quo on a temporary basis pending a trial could include serious mental health issues in connection with one of the parents, drug or alcohol addictions on the part of one of the parents, the child being at risk of physical or emotional harm in parent’s care, or demonstrable evidence that the child is doing very poorly under the temporary parenting order.”

Assessments from the Office of the Children’s Lawyer Should be Evaluated

Generally, courts are cautious about relying on recommendations that are set out in an assessment report on a temporary motion pending trial or implementing recommendations at this stage. In Batsinda v. Batsinda, the Court warned about relying on untested assessment reports as “there is no opportunity at the motion stage to undertake a thorough analysis and evaluation of all aspects of the assessor’s report, including the assessor’s credentials, methods, observations, findings, theories, and recommendations.” Moreover, Justice Pazaratz explained in JLM v. PDAB that these reports are prepared for trial and will form part of the evidence, which provides opportunities for evaluating all aspects of the report. However, there is no opportunity for testing at the motions stage.

Despite the general principle, in some circumstances, the information in an investigator’s report may require immediate scrutiny by a judge to ascertain if the parenting schedule should be varied. Courts have also determined that there should not be a blanket prohibition against considering any aspect of an assessment report on an interim motion. Instead, in Bos v. Bos, Justice Mitrow listed several factors to consider when a court decides whether to change an existing parenting schedule based on an assessment report when there has been no finding of exceptional circumstances. These considerations require the Court to ask:

  1. How significant is the change that is being proposed as compared to the interim status quo?
  2. What other evidence is before the court to support the change?
  3. Is the Court being asked to consider the entire report and recommendations, or only some parts, including statements made by children or observations made by the assessor?
  4. Are the portions of the report sought to be relied on contentious, and if so, has either party requested the opportunity to cross-examine the assessor?

Evidence in Reports May be Considered

When evaluating an OCL report at an interim stage, courts have distinguished between the evidence in the report and the report’s recommendations.

In Miller v. Miller, the applicant’s mother sought to vary an earlier order based on the findings contained in an OCL report. Justice McDermot first explained the general principle that courts must exercise caution in relying on the recommendations in an assessment report which may change the status quo since a report is only a single piece of evidence which should be assessed at trial. Yet, the Court also recognized there is authority that the evidence within a report, rather than the investigator’s recommendations, may be relied on if it is compelling enough to warrant changing the status quo. For instance, in Krasaev v. Krasaev, the Court suggested that caution in weighing assessment reports prior to trial applies primarily to the conclusions and recommendations of an investigator rather than to the evidence set out in a report.

In the case of Miller v. Miller, the OCL report recommended that the mother should have sole decision-making authority and primary residence of the children, with the respondent father exercising weekend parenting time. The OCL investigator raised concerns about the father’s living circumstances, including “domestic issues” involving the father’s girlfriend. The investigator also obtained copies of police records detailing various instances of police attending at his residence, which the father had previously withheld from the Court. An earlier proceeding had increased the father’s parenting time, however, the judge who heard the motion was unaware of these incidents.

Although there was no change in circumstances, Justice McDermot found that there was jurisdiction to change an order when a Court made a decision based on incomplete evidence. The father continued to explain the circumstances under which the police visits occurred and did not acknowledge any problems in his home. However, there remained a risk that the children could be exposed to family violence when at their father’s residence. The information in the OCL report was also corroborated by other evidence, including statements from the children. Based on these findings, the judge decided to alter the status quo and limit the father’s parenting time.

Contact the Family Lawyers at NULaw in Toronto to Protect Your Parental Rights

If you are going through a separation and are experiencing child access and parenting time disputes with respect to interim parenting application, contact the experienced family lawyers at NULaw in Toronto. Our trusted and compassionate lawyers have extensive knowledge of provincial and federal family law rules and legislation, enabling us to provide comprehensive and honest legal advice on various matters, including interim arrangements and post-divorce modifications. To arrange a confidential consultation with one of our lawyers, fill out our online questionnaire or call our office at 416-481-5604.

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