To assses or not assess and the dreaded one-sided assessment

For those who practice family law the issue of custody and access are almost always contested. It is the norm that a parent believes that it is in their children's best interest to be with them either on a full time basis, shared basis or every other weekend.

There had been trends in the case law relating to whether a professional assessment of custody and access was key to a trial on custody and access. More recently, there in this writer's experience a wide variety of reasons to or to not get assessors involved have emerged.

See Linton v. Clarke (1994), CarswellOnt 361 (Div. Ct.) for a comprehensive review of whether an assessment should occur or not.

Note at paragraph 12 of Linton that “expert evidence should not routinely [be] required to establish the best interests of the child….Common sense requires us to acknowledge that the person involved in the day-to-day care may observe behaviour, mood, attitude….The custodial parent normally has the best vantage point from which to assess the interests of the child, and thus will provide the most reliable and complete source of information to the judge on the needs and interests of that child.”

What if we have an assessment done without the consent of a party and without the involvement of the opposing party ?

Common sense would suggest that it is one-sided. How should a Court decide that issue. Well there are two cases that this writer believes are on point. S. (C.E.) v. S. (J.W.) (1993), 1993 CarswellOnt 1825 (Gen. Div.) and Koning v. Montgomery (2003), 2003 CarswellOnt 2028 (S.C.J.)

In both cases, the presiding judges reviewed that the assessor (the same one in both cases actually) did not canvass the issues with both parties and follow a standard format for the assessment. In the end, the presiding judges gave no weight to the assessments.

It would appear that before counsel start throwing around one-sided assessments that they read these cases; or if confronted with such a case, make sure you have these cases in your tool kit so that the trier of fact knows what weight to give them.

Comments are always appreciated by others who have dealt with this issue