Few things in a family case make parents more nervous than hearing that someone is going to come and assess them. A stranger will be watching how you speak to your child, reading your emails, calling the teacher and writing down an opinion for a judge to read. For some families, that kind of outside look is the only way to get to the truth of what is happening. For others, it is an expensive detour that delays a decision and adds to the strain.
In Ontario, this process is usually called a section 30 assessment, after the section of the Children’s Law Reform Act that permits it. It is a different thing from the services of the Office of the Children’s Lawyer, although the two are often confused. Knowing the difference, and knowing what the statute actually requires, helps a parent decide whether to ask for one, whether to oppose one, and how to prepare for one.
This article gives general information only and is not legal advice. Assessment orders are written for the specific case, so your order and your assessor’s process may differ.
What the statute says
Section 30 lets the court hearing a parenting or contact application appoint a person with technical or professional skill “to assess and report to the court on the needs of the child and the ability and willingness of the parties or any of them to satisfy the needs of the child.” Those are the two questions at the core of every assessment: what does this child need, and who can meet those needs?
The section includes several specific rules:
- Timing. The order can be made on or before the hearing, with or without a party’s request. A judge can raise it without being asked.
- Choosing the assessor. The court must appoint a person the parties agree on, if possible. If they cannot agree, the court chooses.
- Consent of the assessor. The person must agree to do the work and to report within the time the court specifies.
- Attendance. The order can require parents, the child and others who were given notice to attend.
- Refusal. If someone refuses to attend or take part, the court may draw inferences it considers appropriate about the ability and willingness of any person to meet the child’s needs.
- Report. The report is filed with the court, copied to the parties and to the child’s counsel if there is one, and it is admissible in evidence.
- Cross-examination. Any party, or the child’s counsel, may require the assessor to attend the hearing as a witness.
- Directions. A party can bring a motion asking the court for directions on how the assessment is carried out.
- Other experts. The appointment does not stop the parties from bringing other expert evidence.
Although this provision is in a provincial statute, parents in a divorce case in Brampton’s Superior Court will also hear about section 30 assessments, and the same general process tends to be used. Rule 20.3 of the Family Law Rules also deals with court-appointed experts more generally.
When a judge is likely to order one
An assessment is not a routine step in a parenting dispute. It is generally seen as intrusive, expensive and a cause of delay, and courts tend to keep it for cases where there is a real need for clinical input. Decisions in Ontario have said that an assessment is typically reserved for cases with clinical or especially complex issues, rather than high conflict alone. Parents who disagree strongly, even bitterly, do not automatically qualify.
The sort of concerns that can support a request include:
- a parent’s mental health or an addiction that affects parenting
- a child with significant emotional, developmental or medical needs
- serious allegations of alienation or a child’s resistance to a parent
- conflicting views from professionals who have seen the family
- a complicated history of family violence, where the effect on a child needs careful study
A court will usually want evidence that an assessment would help it answer a question it cannot answer otherwise. The fact that a judge could get the information from the parents’ own testimony, or from teachers and doctors, may count against making the order. You may also need to explain why a lesser step, such as a referral to the Office of the Children’s Lawyer or a focused report, is not enough.
Even with consent, an order is not guaranteed. The court still decides whether it would help. Having a named assessor and a proposed order ready, including how long it will take and who will pay, generally helps. There is a standard endorsement form for section 30 orders in Ontario, and your order should clearly state the questions the assessor must address.
How it differs from the Children’s Lawyer
Parents commonly mix up these two.
Office of the Children’s Lawyer (OCL). This is a government office. A court asks for its involvement, and the OCL decides whether to accept the case and what service to offer. Parents do not pay for its clinician or lawyer. OCL reports are often narrower, and the office’s resources are limited.
Section 30 assessor. This is a private professional, frequently a psychologist or a social worker, appointed by a court order. The parents pay. The work is typically much deeper, can include psychological testing, and may take many months. The report can go well beyond what the child says, and look at family dynamics.
The two can sometimes be options for the same case, and courts may consider whether one is more suitable. Children’s Lawyer involvement in a Brampton case does not prevent a parent from asking for a section 30 assessment, but the court will likely ask why both are needed.
What the process usually involves
An assessor has a good deal of freedom in how to go about the work, subject to any order or directions. A typical assessment may include:
- An intake and retainer, which sets out the rules, the fees and the limits on confidentiality
- Interviews with each parent, often several, about family history, parenting, concerns and proposals
- Interviews with the child or children, in a way that fits their age
- Observation of the child with each parent, in the home or in an office
- Interviews with new partners or others living in the household
- Contact with collaterals, such as teachers, doctors, therapists, caregivers and sometimes the Children’s Aid Society
- Review of documents, including court material, medical records and school reports
- Psychological testing, if the assessor is qualified and thinks it is useful
- A final meeting with parents or counsel, in many assessments, to go through findings before or after the report is delivered
Plan for it to take a substantial amount of time. The court sets a period in the order, and delays are not unusual, particularly when assessors are in short supply, or when one parent is slow to respond or pay.
Nothing here is confidential
An assessment is not therapy. What you tell an assessor can end up in a report that is filed with the court. If you are in counselling, ask how your own therapist’s records and role may be affected. If you sign consents for an assessor to speak to your doctor or therapist, be aware of what you are authorizing, and talk to your lawyer about it first.
Who pays
Section 30 says the court must require the parties to pay the assessor’s fees and expenses, and must specify in the order the proportions or amounts that each party pays. Courts often set a split based on income or an equal share, and may revisit it at the end of the case. The court can relieve a party of responsibility for the fees if payment would cause serious financial hardship.
These assessments often cost many thousands of dollars, and they can cost considerably more in complex cases with testing and several collaterals. Assessors’ rates vary, so get a written estimate before the order is made. Ask what happens if one parent does not pay their share. If an assessor will not start or finish because a retainer has not been paid, the whole case can stall.
Preparing without performing
You will not be able to fake your way through an assessment, and trying to is often the worst thing you can do. Assessors do this for a living. They are looking at patterns over time, and at whether what you say matches what other people report. These are more useful habits.
Focus on your child. Talk about your child’s friends, fears, routines and what they need next year. Parents who can only talk about the other parent’s failings send a message of their own.
Acknowledge what the other parent does well. A court cares about a parent’s willingness to support the child’s relationship with the other parent. Saying something fair about your former partner is not a concession. It is evidence.
Own your mistakes. If you have made them, say so, and explain what you have done about them. Denying everything tends not to be believed.
Do not coach your child. Don’t rehearse, and don’t question them afterward. Tell them only something short and calm: this person is helping the family and the judge, you can say what you think, and you won’t be in trouble.
Be prompt and organized. Return calls and forms on time, provide a clear list of the people who know your child, and pay your share on schedule.
Be factual about serious concerns. If you have safety concerns, say so clearly, with dates and documents. If you are worried about being alone with the other parent, tell your lawyer and the assessor at the outset.
Keep your day-to-day behaviour consistent. Your texts and emails with the other parent may be reviewed. Assume that everything you write will be read by the assessor, and eventually by a judge.
If you disagree with the report
Reports carry significant weight, and parents often adjust their positions and settle after seeing one. Judges are not bound by them, however. A court can accept all, part or none of an assessor’s opinion in light of the rest of the evidence.
If you get a report that you think is wrong, get legal advice right away. Options can include:
- Requiring the assessor to testify. Section 30 lets any party do that, so that your lawyer can cross-examine on the facts, methods and conclusions.
- Getting a critique. A second expert may review the methodology, but this is generally a different thing from a whole new assessment. Section 30 allows other expert evidence, although such evidence must meet the requirements of the Family Law Rules on experts, and judges decide how much weight it gets.
- Identifying factual errors. A specific list of incorrect facts, supported by documents, is a much stronger response than general outrage.
- Asking for an update. If significant time has passed since the report, things may have changed. An older report may no longer reflect the child’s current situation.
What not to do: do not show the report to your child, do not circulate it among family members and friends, and do not confront the assessor with angry messages. A complaint about a professional’s conduct may be possible through their regulatory college, but that is a separate process from your court case, and it will not quickly solve your problem. Discuss it with your lawyer first.
Should you ask for one?
Before you ask for an assessment, or agree to one, it helps to think through these questions:
- What specific question do I need answered that the court cannot answer without this?
- Is there a cheaper or quicker way, such as a Voice of the Child report, a treating professional’s records, or a focused expert?
- Can we afford the fees, and how long can our child live with this uncertainty?
- If the result goes against me, can I accept it, and will I settle?
- Could my own conduct or history become the focus of the report?
Think too about your child. An assessment means more interviews and more adults asking questions. For many children, that is a real burden. For a few, it is the first time that an adult has looked closely at what they are living through. Which applies to your child may be the most important thing to weigh.
If an assessment has been raised in your case, it is worth getting advice before you respond. Our custody and parenting page gives a general overview of how parenting decisions are made, our family law team handles these matters, and you can contact the office to arrange a consultation.