Legal “Truisims” Exposed?: Custody and Access Reports

[Mother]

Hi All,

Interesting to note in Cozzi v. Smith, 2013 ONSC 3190 (CanLII) the Justice relied upon not only the assessment report but, had full access to the assessment notes and the psychological evaluations and notes from those professionals in this matter and relied on them quite often.

This is why I encourage everyone to obtain the disclosure of ALL THE NOTES from any OCL/Section 30 assessment. They often demonstrate MORE than the "report" itself. As assessments are open so are the notes and other materials for which the assessor relied upon to make their "recommendations".

My advice as always, is to not rest on the "report" alone in any matter. The notes are equally and often in contested situations, more valuable than the summarized "report" or "recommendations" from the assessor.

Justices need the entire record before them to make a determination in accordance with Rule 24 of the Children's Law Reform Act of Ontario. Don't rest your entire case on a condensed "report". Rely upon the full record that was used to create the final (summarized) report.

Often, there is conflicting situations in the notes and other supplemental materials not filed with the "report" that can be leveraged in cross examination of assessors.

Good Luck!
Tayken

Tayken, can you please explain what is the process of getting the notes? How to request their release?

Thank you

[Tayken]

Tayken, can you please explain what is the process of getting the notes? How to request their release?

Thank you

Hi Mother,

Just request them in accordance with the disclosure Rules in the Family Law Rules 20.1 and/or 21. If you are calling the OCL as a witness then you can request in accordance with the Rules their notes for which their report is dependent on. Just make a formal request for disclosure to the clinician requesting that they provide all the notes for which the report relied upon.

Generally, a good report would include these as appendices. Often the bias of a assessor is quite relevant in their personal notes. Many professionals fail to realize that their conduct, just as much as the two parties for which they are investigating and providing recommendations is being reviewed by the courts as well.

Good Luck!
Tayken

[Tayken]

From: http://www.ccla-abcc.ca/uploadedFile...gal_Reform.pdf

As a result, those who are willing and able to conduct these assessments are dwindling. This exodus of available and qualified assessors is a significant problem facing family law lawyers and the courts in Ontario, and most importantly, children and their families who are left at risk.

I wonder if the authors of this paper ever contemplated the following statement from the Honourable Mr. Justice Pazaratz and as to why their numbers are "dwindling". Have the authors ever considered that the expectations of the court and their clients are much higher than the quality of work they have been delivering possibly? That complaints to clinical bodies are not the reason they are "dwindling" but their own failure to evolve with jurisprudence and the expectations of the judiciary on the services they provide?

When identifying the problems with a custody and access report from a clinician:

416. I find it troubling that he seemed to ignore so many obvious signs of manipulation and deception. We now know that much of what the Applicant told a motions judge in her December 2, 2009 affidavit was untrue. And yet those lies changed everything, not only for the Respondent, but also for the child. A new status quo was created. With profound implications.

417. Given the fact that the social worker predicates his sole custody recommendation on his “assumption” that the mother will be properly motivated and better behaved in the future, it is unfortunate that he failed to test or challenge any of the Applicant mother’s manipulative and self-serving behaviours – in circumstances in which the Respondent virtually pleaded with him to look beyond the surface.

418. Creating a favourable status quo through falsehood and misrepresentation is not just a matter of litigation strategy: It is often tantamount to child abuse. It goes to the heart of “best interests” considerations; Parental judgment; The ability to sacrifice self-interest for the sake of the child; Awareness of the child’s need to have maximum contact with both parents.

419. If past behaviour is a predictor of the future, assessors and courts have an obligation to address – and seriously sanction – common and predictable strategic behaviours intended to create an inappropriate status quo.

My hypothesis is that the number of "professionals" willing to engage in custody and access assessments is "dwindling" because these professionals are not up-to-date with current jurisprudence (mobility, "truisms", et all...). Could it be that most of these "professionals" are out of touch with recent jurisprudence such as the one quoted above and unable to meet the expectations of the courts?

In addition, the advent of the internet and significant access to information once only held by these "professionals" has become "common knowledge". This, more than "complaints to their colleges" I suspect is the reason they are being engaged less... Not because they are "victims" of highly conflicted litigants... In fact, it may because litigants are educating themselves with all the access to this common public knowledge and doing things like this:

The Respondent was one of the most skilled and well-prepared self-represented litigants this court has seen. He was meticulously organized, and consistently demonstrated a working knowledge of the relevant provisions of the Children’s Law Reform Act, Family Law Act, the Courts of Justice Act and the Family Law Rules. Under cross-examination he was responsive but unflappable. His own cross-examination of the Applicant and the OCL social worker was respectful, understated – and at times devastating.

Good Luck!
Tayken

[Mother]

Hi Mother,

Just request them in accordance with the disclosure Rules in the Family Law Rules 20.1 and/or 21. If you are calling the OCL as a witness then you can request in accordance with the Rules their notes for which their report is dependent on. Just make a formal request for disclosure to the clinician requesting that they provide all the notes for which the report relied upon.

Generally, a good report would include these as appendices. Often the bias of a assessor is quite relevant in their personal notes. Many professionals fail to realize that their conduct, just as much as the two parties for which they are investigating and providing recommendations is being reviewed by the courts as well.

Good Luck!
Tayken

Tayken, thank you for explaining.

Some other questions.

Say one week was given by the OCL to try to settle and then they'd file the report. There is no way to settle the case in one week because both lawyers are busy (just one reason out of a few). If case is not settled within this one week, does it have any negative effect on both (or one) party?

Who has to present an offer: an applicant to a respondent or a respondent to the applicatin? Does it matter anyway?

Can you suggest a link to a very good sample of an offer (general) or wording and what is the most important thing to be included besides the obvious terms.

Can something like this: if any party fails to follow this agreement, the police can be called to enforce blah, blah, blah - be included in the offer?

If not settled in one week, then what? Is a settlement conference a must or parties still can reach an agreement before a SC scheduled?

Thank you muchly.