Section 30 of the Children’s Law Reform Act allows a judge to order a custody and access assessment in certain circumstances. As you will see in the discussion below, section 30 assessments are somewhat different than assessments conducted by the Office of the Children’s Lawyer.
Section 30 assessment orders are not routine; before a judge will order one, s/he has to believe there is a serious clinical issue. This is a higher test than the test for an OCL assessment, which simply requires that there be a dispute about custody and access for a judge to request the involvement of the OCL.
A clinical issue arises when there is a psychological issue with respect to the child that requires expert assistance for the judge to understand. It is up to the person requesting the section 30 order, generally one or both of the parents, to identify the clinical issue and provide evidence of it.
One case (Tammy v Oddy, 1998) describes a clinical issue as follows:
those behavioural or psychological issues about which the average reasonable person would need assistance in understanding [but] not limited to psychiatric illness or serious psychological impairment.
Generally, the younger the child, the more serious the clinical issue would need to be.
Where one parent has made allegations of alienation against the other, the court may feel an assessment is needed.
Justice O’Neil, in a relatively recent case (Korkola v Korkola, 2007), declined to order an assessment and noted:
the court ought not to assume that every assessment will raise new and pertinent evidence. The onus should be on the moving party to show at least some reason for the assessment. There should be some reason to expect that the assessment will add to the evidence . . . To order an assessment merely because the parties dispute the issue would render this section [of the legislation] in effect mandatory. There must be some evidence that the dispute is so intense as to prevent all the relevant factors coming out, or that there appears to be a parent/child problem that requires expert analysis and/or explanation or, finally, that the assessment is necessary to allow the parties to understand the needs of the child and the need for cooperation.
The law does not set out how the assessment is to be conducted or who is to conduct it other than stipulating that it must be a mental health professional, who must examine the needs of the child and the ability and willingness of the parents to meet those needs. Assessors are often psychologists, but can also be psychiatrists or, less commonly, social workers.
One key difference between OCL and section 30 assessments is that OCL assessments are publicly funded whereas section 30 assessments are private; ie paid for by the parents. The cost can range from a few thousand dollars to $20,000 or more.
As with an assessment conducted by the OCL, the assessor must remain neutral. Assessors in both situations tend to use the same approach: interviewing the child as well as parents and others who may have relevant information or observations.
In a private assessment conducted by a psychologist or psychiatrist, the parents may be psychologically tested, and the assessment report may contain a psychological or psychiatric opinion, which is not the case in an OCL assessment.
The parents can select the assessor they want to work with or, if they are not able to do so, the judge can appoint one.
Obviously, the choice of an assessor is an important one. For the women we support, finding an assessor who has an understanding of violence within the family, especially post-separation abuse and the impact of trauma, is critical.
The assessment report can contain recommendations about custody and access and is admissible evidence in the case.
If either parent is unhappy with the report, s/he can question the assessor at trial or make a complaint to the assessor’s professional governing body. In fact, either or both parties can cross-examine the assessor in any court proceeding. However, before the assessor can be called as a witness, s/he has to be qualified by the judge as an expert.
These reports carry significant weight with judges, as do OCL reports. The judge’s decision followed the recommendations in the assessor’s report 83% of the time according to research that looked at 43 custody and access cases that went to trial in Ontario in the early 2000s.
As with OCL assessments, it is important for the woman you are supporting to prepare herself. If your client has a lawyer, s/he should be closely involved in the process and should prepare the woman for her interactions with the assessor. However, if she is not represented, you can assist her to prepare:
- Make sure the woman understands the purpose of the assessment and the possible impact of the report and recommendations
- Discourage your client from trying to influence her children in any way; this will reflect very badly on her, especially if her ex-partner has raised allegations of parental alienation. It can be very tempting for a mother, who understandably feels protective of her children, to coach them, but this is not a good idea
- You can walk your client through any evidence she has already submitted to the court to refresh her memory and make sure the facts are front and centre in her mind. Help her prioritize what are the most urgent and relevant issues and facts for the purpose of the assessment so she does not clutter her interview with the assessor with minor grievances or irrelevant issues
- You can help her prepare a list of other people she thinks the assessor should talk to
- The woman should go to her interview with the assessor with a parenting plan clear in her mind or, perhaps, written down, so she can share it and discuss why she thinks this plan is in the best interests of the children
- If the assessor will be coming to the woman’s home, encourage her to ensure it is in presentable shape
- Perhaps most importantly, you can offer the woman emotional support as she prepares for the assessment process, while it is going on and after it is over.