Nicholas Bala, L.S.M., B.A., Fay Brunning, B.A., LLB, Barbara Jo Fidler, Ph.D.,C.Psych.,

AccFM, Robert Groves, Ph.D., C. Psych., Barbara Landau, Ph.D., LL.M., Cert.F.M.,

Arthur Leonoff, Ph.D., C. Psych., FIPA,David McLean, MD FRCP[C],

Martha McCarthy, LLB, and Jane Murray, B.Sc., LLB

The courts in Canada and the United States have evolved to rely, in part, on

assessments by mental health professionals serving as experts to bring some

objectivity to the determination of the best interests of the child (Bala, 2004).

Custody and access and child protection assessments (parenting capacity

assessments) are conducted by psychologists, social workers and psychiatrists

with broad child and family experience. Complaints to regulatory bodies by

disgruntled litigants against practitioners who conduct custody/access and child

protection assessments are frequent and on the rise. Next to complaints relating

to sexual misconduct, College complaints against assessors addressing family

law disputes occur more frequently than any other type of complaint (CPO

Bulletin, 2007; Kirkland & Kirkland, 2001). 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.

The family court oversees matters relating to family law disputes and ultimate

determinations of parenting arrangements believed to be in a child’s best

interests. We and the supporters of this proposal maintain, that under the

Social Workers and Social Service Providers (OSCWSSW) and the relevant

legislation, Colleges need to have clear legal criteria to apply before they launch

any investigation into a complaint filed by a disgruntled litigant against an

assessor, and before the assessor has to expend energy, resources and time to

respond to such a complaint. This test is essential to minimize the commonly

occurring vexatious complaints. The family law justice system is seriously

undermined every time a complaint is made by a disgruntled party to the College

against an assessor without any gatekeeping by the court or Colleges. Equally

important, the health discipline complaint process is undermined and loses

legitimacy. This is a major legal problem that needs to be remedied. Three

options for resolution of this problem are provided for consideration.

DISCUSSION PAPER - Protecting Custody Assessors

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over the care and custody of children. Families of divorce face multiple stresses;

adjustment can be seriously delayed, if not stymied, by prolonged litigation over

child care and control that can drag on for years. The implications for children are

immediate but also long term. Studies confirm long term impact such as adults

raised in divorced families tend to marry less and divorce more (Wallerstein &

Lewis, 2005). Parental divorce is also a key variable in predicting referrals of

school age children for mental health treatment (Felner, Stolberg & Cowen,

1975). It is estimated that 20-25 percent of children raised in divorced families

suffer emotional disturbance as adults as compared to the rate of 10 percent for

children raised in intact families (Hetherington & Kelly, 2002).

Assessments are principally ordered when clinical issues predominate and/or are

used by parents and legal counsel to resolve disputes before they actually go to

court. It has been estimated that assessors testify in less than 5 percent of cases

that are assessed (Austin & Jaffe, 1990). In reality, these assessments represent

an important tool for dispute resolution of custody and access conflicts between

the litigating parents.

Although there is controversy between the art and science of conducting family

assessments, pitting empiricism against clinical judgment, the courts in

determining the best interest of the child, have benefited from the consultation

with skilled, neutral assessors, who are knowledgeable in family law principles,

child development, adult assessment and family systems theory. Many

assessors work alone, bringing their professional training guidelines and

experience to address the questions posed by the family and the court. Other

assessors work in teams or family court clinics that harness the talents and skills

of different and multiple mental health professionals to assess complex family

problems referred by the court.

assessments. These may be ordered by the court pursuant to s. 30 of the Children’s Law Reform

Act, RSO 1990, c. C.12 as amended or; s.54 of the Child and Family Services Act, RSO 1990, c.

C.11 as amended. The court orders may be made on consent of the parties or following a

contested motion. Assessments may also be done outside the court process, voluntarily and

typically once the parties have obtained independent legal advice, clarifying process and other

terms using an assessment retainer contract. However many assessors require a court order

before proceeding, even when the assessment is on consent, in the mistaken belief that this will

offer the process some protection.

DISCUSSION PAPER - Protecting Custody Assessors

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Assessors quickly learn that the parents referred for custody assessments are

not regular patients. They are litigants whose principal aim is to win a legal

dispute. Thus, the usual therapeutic paradigm does not apply and the

relationship between assessor and parent is specific to the time-limited

assessment process. There is no patient-doctor/health professional relationship

and no presumed right of complete confidentiality. By way of the order or the

consent formalized into a consent agreement, the assessor’s report and

recommendations become part of the open court record and are accessible to an

inquiring public if they so choose. The assessor serves as a consultant to a

judge. The assessor is not retained by one parent, but rather by both parents.

Ultimately, the client is actually the court, which oversees the process aimed at

determining the best interests of children, when the parents are separated and in

dispute. In this regard, the court is the ultimate defender of the public good and

the assessor is a health or social service professional who agrees to serve as the

court’s expert.

In the court process, the assessor’s findings, expertise and testimony may be

vigorously tested through cross-examination before the judge prior to final

determination of the issue. In the end, the court’s use of the assessor’s report

and evidence is discretionary.

In other words, any health professional willing to serve in this capacity must be

prepared to contend with the rigors of litigation. Lawyers and judges accept the

importance of this evidence but they also expect the assessor to ultimately be

able to defend their findings and recommendations in court. No one knows at the

time of appointment if there will be settlement or if the case will proceed to trial.

Lawyers for both sides can cross-examine the assessor at trial. Moreover, in

some cases the litigants will seek second opinions, critiques from other

evaluators, and/or assistance from their own privately retained experts in

preparing for cross-examination. Hence, the custody assessor already assumes

a willingness to undergo professional scrutiny when appointed, to ensure the

reliability that the court might place on the report and the evidence of an

assessor. A well prepared experienced and expert assessor accepts that

possible scrutiny. The custody assessor serves as expert to the court in respect

to both parties and their children. It is vital work which has proven its value

across North America.

There is a serious potential jeopardy that the custody assessor faces outside the

courtroom in the absence of the protection of the court. No amount of skill,

training or preparation can prevent or avoid this jeopardy. If it arrives, it feels like

a professional sucker punch and has no correlation to the skill, experience and

savvy of the custody assessor. This jeopardy arises from disgruntled litigants

making complaints to the regulatory bodies that govern the health professionals.

If a parent has been described in an assessment report in a way that the parent

DISCUSSION PAPER - Protecting Custody Assessors

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considers unfavourable and wants to discredit or even harass the assessor, that

parent is able to exploit the health discipline complaint process; psychologists

C.18 and social workers under different legislation. Such a complaint may be

made after the assessment report is prepared and before a trial occurs, or after a

trial in which the parent receives an unfavourable result. Rather than (or in

addition to) challenging the report in the usual family litigation process (or

appealing a court decision), a disgruntled parent may file a complaint to the

assessor’s College.

This is a process that is cost-free to the complainant who will be treated the

same as any other client or patient. Disgruntled litigants are given full rights to

pursue the assessor through the College, without any recognition or protection

arising from the fact the assessor was either appointed by the court or consented

to by both parties, and open to full scrutiny under that process.

In the case of the College of Psychology of Ontario (CPO), approximately onethird

of all annual complaints arise out of custody and access assessments (CPO

Bulletin, 2007). Complaining to a regulatory body is an increasingly common

tactic for disgruntled custody litigants. A survey of 61 state and provincial

licensing boards over a 10-year period reported that only 1 percent of complaints

resulted in findings of “formal fault” against the assessor (Kirkland & Kirkland,

2001).

Of course, there may be circumstances where assessors might be unprepared

and inexperienced and both litigants in the dispute file a complaint. It might be,

for example, a report unfinished after a lengthy period, an assessor who fails to

see all parties or who clearly lacks competence or essential knowledge, or a

practitioner assuming a dual role. In most cases, however, these complaints are

filed as part of a litigation strategy and/or to transfer the litigation activity to

attacking the assessor. Given that personality disorders or characteristics of

these disorders occur in about 60% of the high conflict separating or divorcing

parents (Johnston & Campbell, 1988), the disgruntled litigant may have a

personality disorder, and have perhaps been so identified by the assessor.

The Colleges take the position they must investigate all complaints, and treat all

complainants equally. Colleges may take the greater part of a year to gather the

information, schedule a meeting of the ICRC (Complaints Committee), evaluate

the grievance (which has likely blossomed into several letters and responses),

and prepare a decision for the member and the complainant. The complaints

exact a serious toll on the professional who may be functioning as a solo

practitioner, carrying the emotional and professional burden alone. There may be

appeals, and the process can drag on for years. Major college resources are also

consumed by these complaints.

DISCUSSION PAPER - Protecting Custody Assessors

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Who finances the cost of an assessor who is the subject of a college complaint?

Not the family justice system or the parties to the litigation. It must be financed

by the health professional or their insurer. Physicians have access to lawyers

through the Canadian Medical Protective Association (CMPA). Most

psychologists and social workers have the equivalent in legal services available

through group liability insurance, after a deductible is paid. There is no

information available as to the percentage of custody evaluators who retain legal

counsel to assist them through the complaint investigation. It is generally

acknowledged, however, that any complaint can have serious professional and

personal consequences, which include loss of reputation, a tarnished record and

personal humiliation even if the complaint is not referred for further investigation

and the professional is vindicated. Any future dealings with the College will lead

to repeat airing of past complaints to the complaint panels even if the earlier

complaints were never referred to discipline for adjudication. As a result, many

assessors retain counsel, often at their own expense, to provide representation

and assistance during the complaint process.

Many assessors refuse to act as assessors after they have been subjected to the

demeaning and expensive process of dealing with vexatious complaints. The

most concerning reality is that the family justice system has to contend with a

depleted pool of qualified assessors willing to do this important and valued work.

Professional license in our society is a privilege that is accorded to a specific

group in return for regulation in the public interest under defined ethical and

professional responsibilities. The Colleges have the clear mandate to protect the

public from their members who may be unscrupulous, incompetent, unethical or

irresponsible in carrying out their functions. In this drag net of regulation, the fact

that the complaint pertains to a health professional who conducted custody

assessments in a polarized legal context has been treated as irrelevant or

extraneous by the Colleges under their legal mandate. The hegemony of

regulation does not allow for any differentiation between complaints from

members of the public who were provided health or equivalent services as clients

or patients, from disgruntled litigants struggling with their ex-partners over the

custody or access of their children.

Furthermore, the current College procedure forces the custody assessor to

respond to the complainant, even though this may have a direct impact on an

ongoing legal custody process. The complainant may benefit from having such a

response from the assessor, to which the other parent has no concurrent access.

If one disgruntled parent makes a complaint to the College, the other parent has

no standing in the complaint process. If the custody or access issue is still before

the family courts when the complaint is received, the College proceeding can

interfere with the court’s ability to determine custody and/or another assessor

LaLonde, J.

DISCUSSION PAPER - Protecting Custody Assessors

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There is a contradiction between the court and regulatory body where both attest

to represent the public good. The assessor is caught between discordant worlds.

The family court may be fully satisfied with the contribution of the assessor while

the College is looking for possible misconduct at the behest of a retaliatory

litigant. It is a formula for dysfunction and distorts the important role intended to

be played by health discipline regulatory bodies.

No wonder qualified health professionals are increasingly reluctant to do this very

important work, highly valued by the courts and family lawyers. They are pushed

out of the field by disgruntled parents and zealous regulators who believe they

must demonstrate that they are carefully scrutinizing the work of assessors under

their broad powers as “protectors of the public.” From the custody assessor’s

perspective, the professional, financial and personal costs are simply too great.

Consequently, fewer qualified assessors are available, the delay to find an

assessor is lengthened and the costs increase, including the resulting human

cost to the children and parents of the continuing dispute.

When a regulatory College ignores the context in which these complaints arise,

this has impact on the administration of family justice, and ultimately on the

welfare of children. Custody assessments are complex and multidimensional;

they arise in a particular context and serve a specific legal function. What the

colleges and/or the RHPA ignore and what is essential, in our view, is an

understanding that the court itself is the foremost legal forum in which the

public’s welfare is being served in custody disputes. In this regard, the family

court process already provides very significant scrutiny and oversight. The court

can disqualify an assessor, and the lawyers or parties themselves can assess

the work and cross-examine to require the assessor to defend their evidence and

recommendations if the need arises. Absent a consensus of both parties that the

assessor was unprofessional or incompetent (for example due to delay or other

incompetence), or a complaint from the judge or court, the College should not be

involved, in complaints brought by family law litigants. The college system does

not have any of the legal checks and balances or accountability that the litigant

faces in the family court system.

We believe that there needs to be recognition in the legislation that complaints

against assessors about custody/access and child protection assessments

should be handled differently than complaints arising out of direct therapeutic or

other services provided by a health professional to a patient.

Other jurisdictions in North America have recognized the seriousness of this

problem through statutory change. Colorado appears to be the only state or

province where such complaints against mental health professionals in court

ordered assessments are actually prohibited from being the subject of discipline.

DISCUSSION PAPER - Protecting Custody Assessors

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This approach is clearly intended to promote the concerns of the family justice

system. However, we believe that the Colorado model does not strike the right

balance between the needs for protection of all concerned.

We have identified three possible remedies, and perhaps some combination

thereof, for consideration with the hope of protecting children and families and

stemming the exodus of health professionals from performing family court

assessments. These possible remedies are as follows:

Ontario could change the RHPA to require the signed consent of both parents as

a precondition to the College proceeding with a complaint. Ontario could adopt

the model of the California Board of Psychology which states:

If the parent who is complaining is the parent who does not have legal custody,

the College must obtain the prior written consent of the custodial parent as well

to proceed with a complaint. In the case where both parents share legal custody

or where custody has yet to be determined, the complaint would still need to be

supported by both parents as there is a presumption of shared care and control.

This model recognizes that it is usually (although not always) a disgruntled

parent who does not have custody (or who loses custody after the assessment)

who makes a complaint to the college. This approach should also address the

fact that in the present complaint system, the custodial parent never receives

communications from the College, may not be made aware of the complaint, has

no standing with the College, and has no right to prohibit the personal health

information of the child/children from being given to the non-custodial parent

through the complaint system. Furthermore, if the custody order of the court is

under appeal, the custodial parent should be able to prevent this collateral attack

and/or to seek a role in the process.

DISCUSSION PAPER - Protecting Custody Assessors

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In the case of child custody or access and child protection matters, the College

should be required to assess the complaint against a clear legal test defining

what is vexatious, frivolous or an abuse of the family court process. Perhaps

there should be a presumption of abuse of process when a litigant files a

complaint against an assessor. Sometimes these complaints arise during the

assessment process, before the trial is even conducted. The onus should be

placed on the complainant to prove the complaint is not a litigation tactic or

otherwise vexatious. This gatekeeping function should occur prior to investigation

of the complaint itself by the ICRC, meaning before the member has been forced

to file his/her response.

In the case where the College considers the complaint not to be vexatious then

the practitioner should have the right of appeal on the preliminary issue of

jurisdiction to the Ontario Superior Court of Justice, being a court that also

administers the custody laws of the province. Likewise, if the College declines to

process the complaint, the complainant should have a right of appeal to the same

court. The College should be the respondent on the appeal in either case. The

possibility of costs being awarded should be determined in advance.

The advantage of these remedies is to preserve the role of the Colleges in their

regulatory function over provisions of health services to the public, but gives the

Colleges the necessary legal authority to apply clear tests in custody and access

and child protection assessments. It protects the assessor by assuming that

vexatious complaints will be identified and not processed by the College, with

supervision by the Ontario Superior Court of Justice.

Arizona is one jurisdiction that has recently recognized that complaints to

professional colleges will not be allowed, regardless of the objectivity, balance or

accuracy of the assessments. Indeed, as has been outlined above, complaints

arise from the litigious, emotion-laden context of court-related assessments

occur. The rationale for judicial screening as a remedy is that the custody

assessment is essentially an extension of the court process. In this regard, the

court has assumed the obligation to protect the integrity of its procedures and to

safeguard the mental health professional who has agreed to serve in this

exacting role from vexatious complaints which are usually aimed at subverting

the legal process.

Arizona’s Revised Statute (32-2081) states:

DISCUSSION PAPER - Protecting Custody Assessors

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This solution places the gatekeeper function with the family court in respect to

the initial determination of whether there is to be any complaint. One major

advantage of this approach is that judges are already apprised of both parties

and their arguments/positions, as well as the context and likely motivation for

making a complaint. The judge is charged with an appreciation of the best

interests of the child, whereas a regulatory College has no prior or

comprehensive knowledge or special insight into these complex family law

matters. It also ensures that complaints that are forwarded to the Colleges are

actually worthy of regulatory intervention and are aimed at ensuring protection of

professional standards and conduct. A possible disadvantage is that it may be

perceived as limiting College jurisdiction with regard to the professional activities

of its members.

Mental health professionals, judges and family law lawyers all agree that

containing and hopefully resolving family law conflicts is essential if we really

seek to minimize risk and protect children in high conflict family disputes.

Providing due process with one hand (the court) and allowing unchecked abuse

of process with the other hand (unfettered complaints to the regulatory body) is

poor social policy. It exacts a huge individual and societal cost.

Qualified assessors are increasingly unwilling to serve as assessors due to the

high risk of a College complaint. The family courts have come a long way from

the rip and tear litigation of the past. Custody assessments expose the strengths

and weaknesses of the family system, the specific needs and adjustment of the

children, and propose a model for parenting arrangements (custody and access)

aimed to promote healthy long-term adjustment and well-being. Assessments

provide an objectivity that is otherwise missing when the litigation process occurs

solely between the two litigating parents, each trying to win in court. If qualified

assessors are not available, children are likely to suffer.

In the end, we all aim to serve and protect the public: custody assessors, judges,

lawyers and the Colleges. Our attempted solutions often become the problem.

We need to find a way to prevent working at cross-purposes, to identify and stop

the vexatious complaints, and to ensure that children and their families are the

true beneficiaries of our combined talents and expertise.

We need to confirm the existence of the problem and its impact. We would also

like you to consider the possible solutions listed above or to propose others. We

DISCUSSION PAPER - Protecting Custody Assessors

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need the stakeholders to participate. To provide your feedback, including to

confirm/question the existence of the problem and your reasoned assessment of

the possible range of solutions, please email your name, occupation/profession

and comments to the following email address designated for this purpose:

custodyassessorreform@sgmlaw.com. Your name and all the information that

you provide will be stored, collected and used by members of the committee

(authors of this discussion paper) to facilitate possible legal reform as

contemplated in the discussion paper. You may be contacted in the future by the

committee via the email address information that you provide. This committee

may use and disclose comments provided by email without disclosing the author.

However, if we would like to identify you to the Colleges and/or Ministers of the

Provincial Government, you will be contacted to obtain your permission to

disclose that you are the author. Please do not communicate any personal health

information nor identity of complainants to this committee, unless you have prior

written consent to do so.

Thank you for your assistance.

Bibliography

Bala, N. (2004). Assessments for postseparation parenting disputes in Canada.

Felner, R. D., Stolberg, A. L., & Cowen, E. L. (1975). Crisis events and school

Kirkland, K., & Kirkland, K.L. (2001) Frequency of child custody evaluation

complaints and related disciplinary action: A survey of the State and Provincial

174.

Wallerstein, J.S. & Lewis, M. (2004). The Unexpected Legacy of Divorce: Report