The parties in Closner v. Closner 2019 ONSC 5708 are the parents of a five-year-old girl with a history of serious and persistent conflict between them when it comes to co-parenting.
The father obtained a custody and access assessment under section 30 of the Children’s Law Reform Act, also known as a “section 30 assessment”. After completing the assessment, the assessor provided a report to the parties wherein he recommended that they adopt a parallel parenting approach and obtain an updated assessment should parental conflict continue. After receiving the assessor’s recommendations, the parties did not implement a parallel parenting arrangement and their dispute remained highly conflictual.
As the matter moved towards a trial, the mother brought a motion and argued that an updated parenting assessment is necessary and appropriate as it would provide up-to-date information regarding the child. The father, on the other hand, opposed an updated assessment as the dynamics between the parties have remained unchanged since the original assessment and another assessment would only place the child in the middle of their conflict and subject her to further interviews and examinations.
Whether an updated assessment should be ordered depends on whether there have been significant changes since the last assessment, especially when one of the parties objects to having an updated assessment. Furthermore, in Kramer v. Kramer, the Court held that, given its intrusive nature, an updated assessment should not be ordered if the Court can reasonably decide custody and access issues without it.
The paramount consideration is always the best interest of the child and the impact an assessment would have on the child’s wellbeing and development. In this case, not only was there no change in the parties’ situation, the Court had evidence suggesting that the child is regressing in terms of her development as a result of the parties’ conflict. Knowing that the child is already in counselling, it would not have been in her best interest to be further involved in the litigation.
In any event, the trial judge will be in a position to receive evidence from the assessor who prepared the original assessment and have access to the assessor’s testimony as well as a substantial record of the parties’ interactions. As such, the trial judge would be able to determine the issue of custody and access based on the evidence available thus far, without the need for an updated assessment. Accordingly, the mother’s motion was dismissed.
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