“Should the court make a temporary order which would implement some of the recommendations made by an assessor in her parenting assessment or defer consideration of those recommendations until trial? The question arises in the context of parenting problems that have attracted eleven contacts by the Children’s Aid Society and thirteen by local police services since the parents separated in September 2019.
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This court has recently reviewed the law on the use of an assessment on a motion before trial. In J.D. v. N.D., 2020 ONSC 7965 the court stated at paras 17 to 19, 21 to 23:
[17] The legal landscape has also changed since Grant v. Turgeon, which itself followed an earlier decision in Genovesi v Genovesi, 1992 CanLII 8562 (ON SC), [1992] O.J. No. 1261. While its traditional test is still applied in some cases, for example Scutt v. St. Cyr, 2020 ONSC 1159 (child significantly impacted by parents’ inability to make timely decisions for child’s mental health); and Matteliano v. Burt, 2018 CarswellOnt 12417 (S.C.) (countless unsubstantiated allegations of abuse giving rise to parental alienation), other cases say that the jurisprudence has evolved. In Bos v. Bos, 2012 ONSC 3425 Mitrow J. stated at para. 23 and 27:
[23] … In my view, the jurisprudence has evolved to the point that although the general principle enunciated in Genovesi continues to be well founded, it is not so rigid and inflexible as to prevent a court on a motion to give some consideration to the content of an assessment report where that assessment report provides some additional probative evidence to assist the court, particularly where the court is making an order which is not a substantive departure from an existing order or status quo. In such circumstances, the court may consider some of the evidence contained in an assessment report without having to conclude that there are “exceptional circumstances” as set out in Genovesi. …
[27] It must be cautioned that the existence of an assessment report should not make it “open season” for parties to automatically bring motions attempting to implement some aspects of the report or to tweak or otherwise change existing interim orders or an existing status quo. Clearly, the facts of each case will be critical and will guide the exercise of the court’s discretion.
[18] The court in Bos v. Bos at para 26 set out the following alternative factors to consider in lieu of requiring exceptional circumstances:
a. How significant is the change that is being proposed as compared to the interim status quo?
b. What other evidence is before the court to support the change?
c. Is the court being asked to consider the entire report and recommendations, or only some parts, including statements made by children, or observations made by the assessor?
d. Are the portions of the report sought to be relied on contentious and if so has either party requested the opportunity to cross-examine the assessor?
[19] Other decisions agreeing with Bos include Chelsom v. Hinojosa-Chelsom, 2020 ONSC 6926; Krasaev v. Krasaev, 2016 ONSC 5951; and Calabrese v. Calabrese, 2016 ONSC 3077.
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[21] The mother accurately submits that there are many factual disputes between the parties reflected in the assessment. The question for the motion court ought not to be whether it can determine all the factual disputes between the parties, but whether it can determine essential facts showing whether or not a temporary change in the children’s living arrangements is in their best interests.
[22] Delaying a change in residential arrangements until trial is not always appropriate. Making a change sooner can be the better option. Courts have found this to be true in parental alienation cases. In Hazelton v. Forchuk, 2017 ONSC 2282 (CanLII) the court said:
[75] However, as noted at the outset of these reasons, there is one thing on which all participants agree – where parental alienation exists, it is manifestly important that steps be taken immediately. If they are not, the situation will only get worse. If the alienating parent continues to have unfettered access to the children, there is little doubt that the poisoning of the children’s minds will continue. At some point, the restoration of a relationship with the other parent becomes much more difficult, if not impossible.
See also Ma. M. v. A.W.M., 2019 ONSC 2128 (CanLII) where a finding of alienation was made at the interim stage and residential changes were made to address it.
[23] In my view the law has evolved to the point where the approach of deferring parenting changes to trial in highly conflicted cases characterized by family violence and / or child parent contact issues should be re-examined, along with the related approach of routinely deferring implementation of family assessments to trial. A reconsidered process of active judicial case management and timely single judge decision making may provide children more hope for better outcomes and at the same time provide procedural fairness to their parents.
In Matsinda v. Batsinda, 2013 ONSC 7689, [2013] O.J. No. 7869, Justice Chappel reviewed the case law and the principles that apply in dealing with assessment reports on an interim basis and added the following at para. 32:
32 The caution that applies with respect to the weight to be given to assessment reports at the interim stage of proceedings applies primarily to the conclusions and recommendations of the assessor, rather than the evidence and observations set out in that report. Information such as statements made by children to the assessor, the assessor’s observations respecting the parties, and their impressions regarding the parties’ interactions with the children may be of considerable value to the motions judge in their attempt to reach a decision respecting the best interests of the children, provided that the evidence appears to be probative (see Bos v. Bos, 2012 CarswellOnt 7442 (Ont. S.C.J.)”