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An Ontario court recently assessed what impact a report from the Office of the Children’s Lawyer can have on a request for temporary custody.
What Happened?
The parents in question have two children together. In 2015, the parents agreed to an order that granted the father access to the children every Sunday, with the condition that the access could not take place at the paternal grandmother’s home.
In 2016, the court requested that the Office of the Children’s Lawyer (OCL) become involved in the ongoing dispute. The OCL’s subsequent report made seven recommendations including:
- the mother should have sole custody of the children;
- the father’s access be limited to once per week with professional supervision (either through the Supervised Access Centre or a private agency);
- the father should be able to call the daughters on Mondays and Thursdays for 5 minutes each to inquire about their week;
- the father should have the right to get updates as well as school and medical information about the children by calling the children, not attending their school or doctor’s office;
Following their receipt of the report, both parties requested a change to the original 2015 custody order.
The mother requested that the original order be set aside so that the recommendations by the OCL be implemented.
The father brought a motion to expand his access and to remove any conditions on that access. He argued that the issues the OCL identified should be addressed at trial, and that, in any event, the report was biased and could not be used to make a determination about the best interests of the children.
The Court’s Decision
Justice Parent had to determine what weight and relevance should be given to the OCL report in making his decision as to temporary custody.
In support of their respective positions, each parent had relied on the well-established principle that an assessment report should only be considered in exceptional circumstances where immediate action is deemed necessary and should not be relied on in interim/temporary proceedings (i.e. without a full trial) since there would be no opportunity to cross-examine the author of the report on critical elements such the author’s credentials, as well as his or her observations and recommendations.
Justice Parent noted that the OCL report would be seriously considered by the trial judge. The question on the interim custody motion was whether the concerns about the father raised n the report merited the acceptance of all, some, or none of the seven recommendations made. The Justice recognized that the OCL report was very thorough and highlighted the position of each parent vis-à-vis their marriage, the events leading to the separation, their post-separation relationship, their parenting abilities, the children’s adaptation post separation, and mental health issues, among other matters.
Justice Parent also noted that his knowledge about the assessor was limited to the fact that she was an accepted OCL clinician, but had no evidence about her training, experience, or knowledge about crucial issues such as child development, parental alienation and mental health. The Justice further noted that the father’s counsel had not raised any issues regarding the assessor’s qualifications, nor had they sought an adjournment to allow the assessor to the cross-examined, nor was there any indication that cross-examination had been requested before the motion hearing (all of which the father could have done).
Justice Parent found that the assessor had seriously considered the concerns raised by both parents and investigated them. In addition, Justice Parent found that the father had not specifically addressed his actions despite being fully aware of the concerns raised by the assessor in the OCL report. Rather, the father simply maintained his view that his actions were being “blown out of proportion”.
On review of the entire evidentiary record, Justice Parent noted that a serious basis for concern for the children existed and accepted that the OCL’s recommendations for continued supervised access as well as conditions on telephone access were required to protect the best interests of the children. Justice Parent was ultimately satisfied that the mother had met the threshold of establishing that “exceptional circumstances” existed so as to implement some of the OCL’s recommendations. The Justice stopped short of ordering sole custody to the mother at this stage.
If you have questions about child custody, or how to protect the best interests of your children following a separation, contact experienced Windsor family lawyer, Jason Howie at 519.973.1500 or contact us online
