“Courts are generally cautious about implementing assessment reports or OCL recommendations on an interim basis. It is usually preferable for the status quo to continue until trial, unless there is a “compelling reason” to change the arrangement in the best interests of the child: Benko v. Torok, 2012 ONCJ 401. See also, Grant v. Turgeon, 2000 CanLII 22565 (ON SC), [2000] O.J. No. 970 (Ont. S.C.J.) at para 15 and Daniel v. Henlon, 2018 ONCJ 122.
In general, interim implementation of OCL reports and assessments should be discouraged. There is usually no opportunity at the motions stage to undertake a full analysis and evaluation of all aspects of the report. It is preferable for disputed facts to be resolved in a trial setting with the benefit of cross-examination: Batsinda v. Batsinda 2013 ONSC 7869, per Chappel J., at para. 32 and JLM v. PDAB, 2012 ONSC 4696 per Pazaratz J.
However, there are cases in which a parent has been found to be engaging in potentially alienating behaviour and parenting arrangements have been varied on an interim basis: See, for example, WDC v. JLM, 2012 ONCJ 700 per Tobin J. See also O’Connor v O’Connor, 2017 ONCJ 48 in which the court implemented recommendations of the OCL pending trial.
While many cases refer to the requirement that there be “compelling circumstances” or “exceptional circumstances” to change the status quo pending trial, in Bos v. Bos, 2012 ONSC 3425, at para 26, Mitrow J. listed the following factors for consideration when a court is asked to change temporary parenting arrangements, based on an assessment report, without a finding of “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?
There should not be an “inflexible blanket prohibition” against considering any aspect of an assessment report on an interim motion, especially when that is the only independent evidence before the court. Taylor v Clarke, 2017 ONSC 1270, 2017 CarswellOnt 3586.”