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In a custody and access dispute, the judge is given the important task of deciding what is in the best interests of a child, including who should have decision-making authority and how much time the child should spend in the care of each parent. A judge, however, is limited by the evidence presented to him or her in court. He or she does not get the opportunity to meet with the parties in a natural setting, conduct interviews with them, interview the child, and observe how the child interacts with each of the parties. Although some judges do conduct interviews with children when hearing a trial, the information that can be gathered from a short interview with a child is much more limited than what could be gathered from a full investigation into the child’s situation.

There is a method for having a professional third party gather this information and provide it to the court, along with recommendations, and that is by having the Court order a “custody and access assessment”, sometimes referred to as a “parental capacity assessment”.

A custody and access assessment is when the court orders an expert to assess and report to it on the needs of the child, and the ability and willingness of each parent to satisfy the needs of the child. The expert must be neutral (not biased toward either party), and sufficiently qualified to conduct such an assessment (usually a psychologist or social worker). Usually, both parties will choose a qualified neutral expert by mutual agreement but if the parties cannot agree, the Court can make the final decision.

Although the assessment is ordered by the Court, it is the parties themselves who have to pay for it. The costs of the assessment can be paid by one party or by both parties – in whatever proportion ordered by the Court. In an ideal situation, the two parties would have a discussion about requesting an assessment, and would reach an agreement about which professional they will use and how they will share the costs.

Once a custody and access assessment has been completed, the assessor will prepare a report of his or her findings and provide it to the Court and to the parties. The report will include the assessor’s expert opinion on what he or she feels would be in the best interests of the child. At trial, the report of an assessment is considered evidence and is part of the court record of the proceeding. Either party can call the assessor to testify as a witness at trial.

Assessments can be expensive – in the London area, you can expect to pay at least $5,000.00 and sometimes closer to $10,000.00 depending on the issues involved in your case, the experience and qualifications of your expert, and the fees or hourly rate that your expert charges.

You can expect a custody and access assessment to take up to a few months to complete. An assessment typically involves at least one interview with each party, at least one interview with the child, and observational visits of the children in each party’s care. An assessor will also review any documentary evidence that may be relevant and necessary to review, including the child’s school records, medical records, police records if there have been instances requiring police involvement, and records of the Children’s Aid Society if they have become involved with the family. The assessor may also decide to conduct interviews with third parties, such as for example a party’s spouse, a child’s grandparent(s), or a child’s counsellor or teacher.

If you believe the Court would benefit from an assessment of your child’s needs and the parties’ ability to meet those needs, but you do not have the financial resources to pay for an assessment, another option is to ask the Court to request the services of the Office of the Children’s Lawyer (“OCL”), and specifically for a clinical assessment to be conducted. The OCL is a publicly-funded entity that will cover the cost of an assessment if they agree an assessment is warranted, but they are not obligated to take every case referred to them. The OCL will receive and review the Court’s “request” that they become involved, along with any comments the judge may have made in his or her Endorsement requesting the services, but the OCL has the ultimate authority to decide whether they are willing to become involved in the case or not.

Although an OCL assessment has the benefit of being fully funded by the government, the parties have no say in which assessor is appointed to conduct the assessment. This may be a deterrent in some cases – for example, if one of the parties in your case suffers from complex mental health issues, you may decide to choose an assessor who is a clinical psychologist or psychiatrist, rather than a social worker.

Although custody and access assessments can be very informative and compelling, it is important to keep in mind that the judge hearing your trial will still be the one deciding your case and ultimately, he or she is not bound to follow the recommendations of the assessor.

If you have questions about this article or any other family law matters, please contact Nadine Russell at [email protected] or 519.660.7839.

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