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Child Custody and Access Assessments
In the past, if requested in a contested child custody or access case, an assessment would normally be granted. However, since the mid-1990's, courts have been more reluctant to order assessments. This is due to the cost and delay of carrying out an assessment.
The case normally considered the turning point is Linton v Clarke, 21 O.R. (3d) 568 (C.A.). The court dismissed the mother’s appeal of an order denying her request for a child custody assessment. The court stated that:
Assessments should not be ordered in all cases as a vehicle to promote settlement of custody disputes. If the legislatures had intended that assessments were to be a vehicle to settle custody disputes, the legislation would have mandated assessments in all cases.
In my view, assessments should be limited to cases in which there are clinical issues to be determined in order that such assessment can provide expert evidence on the appropriate manner to address the emotional and psychological stresses within the family unit in the final determination of custody.
What are “clinical issues”?Linton v Clarke (supra) is one of the first times a case mentioned that there must be “clinical issues” to be determined for a child custody assessment to be ordered. What exactly a clinical issue is has not been well defined in the cases. As well, the cases have not been consistent in requiring there to be clinical issues for an assessment to be ordered.
Ottawa Judge, Madam Justice Blishen, in Glance v Glance,  O.J. No. 3244 (S.C.J.) listed some types of clinical issues, as follows:
- alleged manipulation of the child by one parent
- alleged physical abuse of the child
- alleged emotional abuse of the child
- alleged sexual abuse of the child
- child exhibiting behavioural problems or difficulties