Assessment Reports: Kirkham v. Kirkham

The parties in Kirkham v. Kirkham had two children of the marriage and separated in 2001. Since the time of their separation, the parties had shared parenting of the children on a week-about basis. At the Settlement Conference in this matter, a parenting Assessment of the wife was ordered pursuant to s.30 of the Children's Law Reform Act. The Assessment was performed and ultimately recommended that the children reside with the father and have weekend access visits with the mother. As a result of this recommendation, the father brought an interim motion for implementation of the Assessment Report on an interim basis. The motion's judge, however, followed the prevailing jurisprudence on the issue and resultantly dismissed the father's case, holding that the status quo should appropriately continue until there is a full evidentiary trial on the matter. Only where an exceptional set of circumstances arises, for example where there is a lengthy period between the motion and the trial, should an Assessment Report be used on a motion to vary an existing custody arrangement.

This case simply reiterates the well established principle that a court will be reluctant to prematurely implement an Assessment Report in favour of a prevailing custody arrangement. Especially in a case, such as the one at bar, where the custody arrangement has been successfully in operation for quite some time, the Court will not be so willing to make haste alterations to it. Quite understandably, the Court would much prefer to take such a drastic measure only if a full trial of the issue with viva voce evidence and a cross-examination of the assessor has taken place.

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