January 14, 2025 – When Should a Section 30 Assessment Be Ordered?

“The determination of whether to order an assessment pursuant to section 30 of the Children’s Law Reform Act is a highly discretionary one that requires the court to carefully consider all of the circumstances of the parties, their parenting, their overall functioning and well-being and the particular needs of the child before the court.  Ultimately, the question to be determined by the court in a motion for a section 30 order is whether the court requires additional assistance from a qualified professional to determine the needs of the child before the court and the ability and willingness of the parties to satisfy those needs.

The caselaw outlines numerous factors that may be relevant in guiding the court’s discretion in deciding this basic question, but ultimately, the decision must turn on the unique facts of every case.

As I have indicated, the Applicant relies on the case of Glick v. Cale, 2013 CarswellOnt 1409 (S.C.J.) as setting out the relevant factors and considerations, and that case does indeed provide valuable guidance.  In addition to that case, I have considered the decisions in Baillie v Middleton, 2012 ONSC 3728 (S.C.J.); Hutchison v. Peever, 2021 ONSC 4586 (S.C.J.); Joseph v. Molnar, 2021 ONSC 4432 (S.C.J.); McDonald v. McMullen, 2021 ONSC 1001 (S.C.J), and Ross v. D’Oliveira, 2020 ONSC 7747 (S.C.J.).  In addition, I note that a reading of section 30 as a whole reflects that the section contemplates that the information provided by an assessor will essentially amount to expert opinion evidence respecting the needs of the child and the ability and willingness of the parties to meet those needs.  Accordingly, the factors relating to the admissibility of expert opinion must also be brought into the fold of the analysis in deciding whether to order an assessment under section 30.

Based on the caselaw respecting section 30 and the admissibility of expert opinion evidence, I conclude that the relevant principles, factors, and considerations on a motion for a section 30 assessment include the following:

1. 1. 1. 1. First, drawing from the law respecting expert evidence, before ordering a section 30 assessment, the court should be satisfied that the proposed assessment is likely to provide the court with evidence that is relevant to the parenting issues in the case, and that it will be necessary to assist the trier of fact.  Mere helpfulness of the proposed assessment does not satisfy this threshold (Fortier v. Oliver,2003 CarswellOnt 5397 (S.C.J.), and Baillie v Middleton).  Rather, necessity involves the court being satisfied of at least one of the following:

a.  The expert’s opinion will provide information that is likely to be outside of the experience or knowledge of the judge;

b.  The assessor’s opinion is likely to be necessary to enable the trier of fact to appreciate the matters in issue due to their technical nature or dimensions; or

c.  The matter in issue concerns something that ordinary people are unlikely to form a correct judgment about without assistance of the person with special knowledge.  In other words, the trier of fact is unable to draw their own inferences and conclusions about the issues in question based on the facts presented without the help of the proposed assessor (White Burgess Langille Inman v. Abbott and Haliburton Company, 2015 SCC 23 (S.C.C.)).

1. 1. 1. 2. The onus is on the moving party to satisfy the court that the proposed assessment is likely to provide the court with relevant evidence that is necessary to assist the trier of fact.
         3. The section 30 caselaw to date has focused extensively on whether there should be clinical issues involved in a case before an assessment is ordered.  However, it is more appropriate, in my view, to focus more broadly on the question of whether the proposed assessment is likely to be relevant and necessary in determining the parenting issues in the case within the meaning discussed above, whether because there are issues of a clinical nature or otherwise.  The existence of complex clinical issues that are likely beyond the knowledge and experience of a judge to process and apply properly to the facts of the case is but one reason why a section 30 assessment may be necessary.
         4. In determining whether the assessment is necessary to assist the trier of fact, the court should consider all of the family’s circumstances, including the overall dynamics and the needs of the child.  The list of factors enumerated by Kitely, J. in Glick v. Caleas being relevant to determining whether a section 30 assessment should be ordered is a helpful, non-exhaustive outline of some of the factors that the court should consider in deciding if the assessment is necessary.  These factors include the following:

 

a.  What was the parenting relationship like before separation?  Did the parents function at least adequately before the separation and the dysfunction arose after the separation?

b.  Are the parents unable to make any decision about the child’s needs without intervention by a court?

c.  Is the relationship between the parents so unhealthy that one or both parents is/are unable to identify the best interests of the child and act on it?

d.  Do the parents have a mutual disregard for the other parent’s ability to parent?

e.  Do the parents blame each other for the dysfunction each describes?

f.  Is there a clinical diagnosis that might impact on the parenting capacity of one or both parents?

g.  Is there a clinical diagnosis with respect to any of the children in the family unit that means the child is fragile and vulnerable to ongoing conflict and has special needs?

h.  What is the age of the child at separation and at the time of the request for the assessment?

i.  Is the child manifesting behaviour that might be associated with stress caused by the conflict between the parents?

j.  Is there an alternative?  For example, is the child of an age and maturity that his or her views should be known and if so, would it be more appropriate to ask the Office of the Children’s Lawyer to become involved and appoint a lawyer to act for the child?

k.  Are there other challenges in the family, and if those challenges are resolved, will the family dynamic be improved and avoid the necessity of an assessment?

l.  What is the nature of the issues that the court must decide? and

m.  Is an assessment in the best interests of the child?

1. 1. 1. 5. Turning to the 5^thgeneral principle, the assessment should not be ordered if the court is satisfied that it will be in a position to reasonably decide the issues with all of the currently available evidence, including that of professionals who have already been involved with the family (Kramer v. Kramer, (2003), 2003 CanLII 64318 (ON SC), 37 R.F.L. (5^th) 381 (Ont.S.C.J.), and Baillie v Middleton).  If the evidence that the moving party states is required from the proposed assessor is already readily available from other potential witnesses and professionals without the assistance of an assessment, then the assessment should not be ordered (Ross v. D’Oliveira, 2020 ONSC 7747 (S.C.J.), at para. 30).
         6. The court must be satisfied that the proposed assessor is qualified to identify and assess the needs of the child in question and the ability and willingness of the parents to address their needs (White Burgess).
         7. Assessments are not to be ordered routinely as a convenient means of promoting settlements of custody disputes (Linton v. Clarke, (1994), 1994 CanLII 8894 (ON SCDC), 10 R.F.L. (4th) 92 (Ont.Div.Ct.); (Baillie v Middleton).  Furthermore, they should not be ordered simply as a means of gathering all relevant available information from other potential witnesses together within the knowledge of one professional for the purpose of relaying the information to the court.  Necessity goes beyond organizing other readily available evidence to present it to the court in a comprehensive and cohesive manner.
         8. The mere fact that the parties are engaged in a high conflict parenting dispute does not in itself, justify ordering an assessment (Baillie v Middleton).
         9. The potential benefit of expert assistance in a particular dispute must be weighed against the fact that assessments are expensive, intrusive, and time-consuming. There must be evidence sufficient to satisfy the court that the reasons for requiring the assessment more than offset any harm that could be incurred by ordering the assessment (Butler v. Percy2009 CarswellOnt 4523 (S.C.J.); Hodgson v. Hanson 2000 CarswellOnt 3769 (O.C.J.); Johnstone v. Brighton 2004 CanLII 5851 (ON SC), 2004 CarswellOnt 3229 (S.C.J.), and Baillie v Middleton).
         10. In weighing the potential benefits of an assessment against the possible prejudice of an assessment, the court must consider whether the child in question has already been exposed to a great deal of stress, disruption, and exposure to professionals.  As Pazaratz, J. stated in Baillie v Middleton,an assessment is intrusive not only for the parents but also for children.  Accordingly, the court must consider whether a further investigation will have a negative impact on a child by drawing them further into the parental conflict in a court case (Root v. Root, 2008 CarswellOnt 3995 (S.C.J.); Baillie v Middleton).
         11. The court should also consider whether concerns about any delay involved in obtaining the assessment will outweigh any potential benefits of obtaining the assessment.  As Pazaratz, J. emphasized in Baillie v Middleton,where the parties are so entrenched and unyielding in their respective positions that nothing short of a trial will resolve the case, a marginally beneficial assessment should not be allowed to delay that final resolution. The issue to consider is whether the assessment will cause delay that is not in the best interests of the child.  In considering the impact of delay, the court should consider whether it is more likely than not that the delay necessarily involved in an assessment will enable the parents to have a better understanding of the family dynamics and arrive at a resolution without a trial.
         12. An assessment should not be used as a general fact-finding exercise by one parent hoping to obtain evidence favourable to their position (Haggerty v. Haggerty, 2007 ONCJ 279 (O.C.J.), at para. 7; M.(D.M.) v. L.(D.P.) (1999),1999 ABQB 37 (CanLII), 44 R.F.L. (4^th) 433 (Alta. Q.B.); Baillie v Middleton).
         13. The cost of the assessment will also be an important consideration, although not necessarily determinative.  However, in addressing the cost issue, the court must also weigh the potential for the assessment assisting the parties to resolve the issues in dispute and to avoid the cost of further litigation and a trial (Baillie v Middleton).
         14. The need for neutral and independent evidence about the views and preferences of the child may provide support for ordering a section 30 assessment.  However, where these views and preferences are readily available through other independent witnesses and/or professionals, the court may conclude that further evidence is unnecessary, and that the appointment of an assessor to address this point is not required.”

A.A. v. D.S., 2022 ONSC 1389 (CanLII)