Where Have All The Assessors Gone? Addressing Frivolous and Vexatious Complaints and Moving Towards Potential Solutions

Written By: Tami Moscoe, L.L.B. & Barbara Jo Fidler, Ph.D., C.Psych.

High conflict family law cases can be challenging to resolve without input from a mental health practitioner with specialized knowledge, training and experience. Custody/access assessments have an important role to play in resolving parenting disputes. Perhaps most importantly, assessments help to create child-focused parenting arrangements that are tailored to a family’s circumstances. Assessments provide informed and independent evidence about the child’s needs and the ability and willingness of each parent to meet those needs. This helps to encourage facilitated resolutions and informs adjudicative decisions where required.

An assessor’s role is entirely different from a traditional therapist-client relationship. The assessor is appointed by and accountable to the Court in a forensic role. Both parents have the opportunity in the court process to challenge the assessor’s findings, opinions and recommendations. It is then up to the Court to determine the weight that will be given to this particular piece of evidence.

Custody and access cases are extremely difficult to resolve for many reasons including the importance of the parenting issues to the parties, the unrealistic expectations of one or both parties, an inability for litigants to move from their interests to those of the child and, in many cases, the involvement of some degree of mental illness and/or personality disorders. Consequently, it is not surprising for a litigant to question the conduct of the assessor when they are dissatisfied with the opinions and recommendations, regardless of whether or not the assessor has met all of their professional obligations. The litigant may be motivated to advance a professional complaint for many reasons, including: (i) to delay or even thwart the process, (ii) to harass the professional and bring them into the conflict to the point they may withdraw, and (iii) to gain access to information through the complaints process before it is available to the other party.

A 2009 discussion paper was prepared by a multi-disciplinary group of Ontario family law professionals to bring awareness to these issues and propose procedural reforms, largely in response to a complaint against a well-known psychologist that was ultimately dismissed only after extensive investigation.  The paper states:

…As a result, those who are willing and able to conduct these assessments are dwindling.  This exodus of available and qualified assessors is a significant problem facing family law lawyers and the courts in Ontario and, most importantly, children and their families who are left at risk.  Legal costs increase, families endure stressfully long wait-times and children suffer while their parents remain in tense custodial limbo due to excessive delays caused by a dearth in available assessors.

Recognizing the dwindling pool of willing and available custody and access assessors, that significant challenges persist regarding frivolous and vexatious complaints against these professionals, and the importance of this work for the benefit of children and their parents, several AFCC-O members have been busy over the past year working to develop potential improvements. Tami Moscoe, Dr. Barbara Fidler, Dr. Graham Clarke (Alberta) and Dr. Jenni Neoh (Australia) presented on this topic at the AFCC conference in Los Angeles.

In addition, an interdisciplinary working group has developed a new endorsement form for custody and access assessments, which will be available shortly on the website of the Ministry of the Attorney General (MAG) located with the ‘court forms’, also found at http://ontariocourtforms.on.ca/en. Most recently, an interdisciplinary effort has continued under The Action Group (TAG) umbrella to develop proposed reforms to both family court and regulatory processes.  Stay tuned for more information.

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