One-sided assessments are a no-no, for those who Mediate and/or Arbitrate Child-Related Matters, by (retired Justice) Cliff Nelson

For many years now, one-sided custody and/or access assessments have essentially been ignored by judges. By “one-sided”, I refer to assessments dealing with children, conducted by professionals, without the consent of both parties. This kind of assessment usually arises in high-conflict custody/access matters when one parent takes it upon him/herself to have a child assessed by a psychologist, without first obtaining the consent of the opposite party.

 These parents are often so self-focussed and so convinced that their grievances about the other parent are harming the child who is the subject of their fight, that they surreptitiously take the child to a professional to have their opinion confirmed.

This is wrong on so many levels that judges not only disregard these one-sided reports but also draw an adverse inference against the offending parent. This occurs even when one parent argues that the child needs professional help but the other refuses to consent to it.

What is truly surprising is that the parents who act without consent seem to be able to find professionals who quite willingly undertake to see children without input from both parents. For psychologists, at least, this is professional misconduct, subject to sanctions by provincial Colleges of Psychologists.

I shall refer to three cases, each following a similar pattern:

Ontario (College of Psychologists of Ontario) v. Dehganpour, 2019 ONCPD 1 (CANLII) ;
Ontario (College of Psychologists of Ontario) v. Rovers,  2018  ONCPD 1 (CANLII) ;
Ontario (College of Psychologists of Ontario) v. Antczak, 2017 ONCPD 1 (CANLII).

In each of these cases, the Ontario College of Psychologists had to decide whether the professionals who performed one-sided assessments were guilty of professional misconduct in circumstances where they examined a child and made recommendations, without first ensuring that both sides in a family law dispute had consented to their involvement. All three professionals were found guilty of professional misconduct and were publicly reprimanded. In addition, they were required to undergo a period of mentoring with another psychologist and pay for that exercise.

I am sure that no-one who is a member of FDRIO has ever found him/herself in this difficulty; however, even if a signed consent is procured, I would advise mediators/arbitrators to be super-vigilant and ensure, by speaking to both parties and their representatives, that both parents consent to the examination, assessment or treatment, before undertaking the work.

Until next time…..