Ryan v Scott

In this case, the judge considered the appropriateness of ordering a custody assessment under section 30 of the Children’s Law Reform Act in a dispute over a toddler.

The parties are the parents of a little girl, E., born in 2010. When E. was six months old, the mother received court permission to move with her daughter from Ottawa to her home city of Toronto. In 2011, a judge ordered that the couple would share joint custody over the child, with the mother having primary residence and day-to-day decision making authority. The decision also provided for a review of the parenting arrangement once the child turned three.

Soon after E’s third birthday in 2013, her mother applied for sole custody and a reduction of the father’s access. The father, who now resided in Toronto, responded with a request for parallel parenting over decision-making and an equal time-sharing parenting schedule.

As part of her motion, the mother requested a court ordered custody assessment under s. 30 of the CLRA.

Section 30 Assessments

Section 30 allows a court to appoint a neutral third party with the necessary technical or professional skills to assess a child’s needs and the ability and willingness of either or both parents to satisfy those needs. After the assessment is completed, the expert will provide the court with a report to assist with crafting a custody arrangement that is in the child’s best interests.

The judge in this case, Justice Mesbur, had to determine whether such an assessment was warranted in the circumstances. She notes previous cases have ruled that assessments should not be ordered routinely in every instance. In making her determination, Justice Mesbur adopted the non-exhaustive criteria enumerated in Glick v Cale to decide whether or not to order an assessment. Justice Mesbur narrowed her evaluation to the seven of the most relevant and applicable criteria to the situation including:

• The parenting relationship before separation;
• Whether the parents could make decisions without court intervention;
• Whether one or both parents were unable to identify and act upon the child’s best interest due to the relationship between parents;
• Whether the parents have a mutual disregard for the other’s ability to parent;
• The age of the child at the date of separation and the date of the assessment request;
• Whether the child is manifesting behaviour that might be associated with stress caused by parental conflict;
• The existence of an alternative (i.e the Office of the Children’s Lawyer) to represent the child and ascertain her wishes and preferences;
• The cost of an assessment

Altogether, Justice Mesbur found that these factors were heavily in favour of ordering an assessment.

Determining the Appropriateness of an Assessment

The parties had never lived together nor co-parented. E’s exposure to her parents’ relationship was riddled with litigation and conflict; they could not even agree on who had pick-up and drop-off responsibilities. They constantly criticized each other’s parenting ability and foisted blame on each other.

In her young life, E. has known nothing but parental conflict and animosity. As she approached the age of four, her stage of development in 2013 is much different from what it was in 2011. The influence of her exposure to her parent’s constant conflict has begun manifesting in aggressive behaviour. E. often acted out and exhibited undue fatigue after spending time with her father as a result of the mother inappropriately discussing adult issues with her.

Her father also detrimentally lacked insight into the child’s needs and had a history of bad judgment and anger management issues. These problems brought into question his ability to parent. One such issue that Justice Mesbur noted specifically pertained to a blog the father maintained. On this blog, he publicly published disparaging comments about the mother along with his name, address, and telephone number. While E. was not openly identified, the judge was concerned about how easily a reader could do so from the readily available information.

Since E. was only three, there was no other viable alternative to an assessment as the Office of the Children’s Lawyer would not be able to do much with a toddler. An assessment and report also appeared to be affordable in the circumstances for both parties.

In addition to the above factors, Justice Mesbur found that a couple of issues raised by the father and his behaviour contributed to the appropriateness of an assessment. First, the father’s suggestions of parental alienation and the mother’s possible mental health issues raised concerns about the mother’s parenting ability. Second, the father had secretly recorded proceedings with a Dispute Resolution Officer to capture the mother’s ‘false allegations’ – which is very inappropriate conduct in a legal proceeding. Together, these issues were enough of a concern that Justice Mesbur felt an assessment was definitely appropriate and necessary.

Accordingly, Justice Mesbur ordered a section 30 assessment with the costs to be split equally between the parties.