Can my child have a voice?
Children may have a voice in a family law disputes, through private assessments or, in Ontario, through the Office of the Children’s Lawyer.
Private Assessments
The role of a private assessment in a family law dispute, is to provide the Court expert evidence on what is in the children’s best interest. The Court is permitted to rely upon the report in determining the best possible parenting arrangement and decision-making order. The report prepared is one factor a judge can use in determining a parenting regime and will be given weight based on the circumstances of the report. It is important the report is prepared by a reputable professional that has experience in preparing reports in family law disputes.
In addition, consider the issues in your particular case, and ensure that the expert used to assess the children’s needs is an expert in the field. For example, if the issue being addressed in an assessment report is parent alienation, ensure the expert has some experience in this field. The greater the merits of the report, the greater weight a judge can place on the report.
Similarly, poorly drafted reports, completed by inexperienced professionals, can result in a report that will be given little weight by a judge.
When will private assessments be ordered?
At the outset, parties can agree to appoint an expert to complete a parenting assessment at any time. However, in circumstances where the parents do not agree to appoint an assessor, or perhaps disagree on which assessor should be used, the Court will have to make the decision.
In the event there is a disagreement as to the appointment of an assessor, evidence needs to be presented to demonstrate that an assessment would assist the Court in determining issues in the case. More importantly, the Court will likely need to be satisfied that the assessment would, overall, promote the best interests of the child or children.
Conversely, if you are opposed to the assessment, evidence would need to be lead, to demonstrate why the assessment should not be ordered. The focus should be on the best interest of the children. If, for example, there is evidence to suggest that the children could be harmed in some way by the assessment. One concern that could demonstrate harm is delay. If an assessment would unnecessarily delay a proceeding, it may be helpful in persuading a judge to dismiss a request for an assessment.
If the parties agree on assessment but disagree on who the assessor should be, typically the Court will order the appointment of the assessor who is more qualified. Deference will also be given to cost and timelines.
Who pays for an assessment?
The person who pays for the assessment is very fact specific. Typically, the assessment cost will be shared. However, if there is a large disparity in the income of the parties, the costs may be apportioned proportionately. In some cases, the cost of the assessment could be borne by only one party. It is important to get legal advice on the facts in your case to determine this issue.
