WARNING

The court hearing this matter directs that the following notice be attached to the file:

This is a case under Part V of the Child, Youth and Family Services Act, 2017 (being Schedule 1 to the Supporting Children, Youth and Families Act, 2017, S.O. 2017, c. 14), and is subject to subsections 87(7), 87(8) and 87(9) of the Act. These subsections and subsection 142(3) of the Act, which deals with the consequences of failure to comply, read as follows:

87.— (7) Order excluding media representatives or prohibiting publication.

Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding, the court may make an order:

(c) prohibiting the publication of a report of the hearing or a specified part of the hearing.

87.— (8) Prohibition re identifying child.

No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child's parent or foster parent or a member of the child's family.

87.— (9) Prohibition re identifying person charged.

The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

142.— (3) Offences re publication.

A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

Court Information

Ontario Court of Justice

Court Files No.: Sault Ste. Marie 179/16 & 165/19

Between:

CHILDREN'S AID SOCIETY OF ALGOMA Applicant

— AND —

M.L., J.M. and D.P.

M.L. and J.M. Respondents

Before: Justice R. Kwolek

Heard on: May 13, 2019

Reasons for Judgment released on: June 5, 2019

Counsel

J. Rossi — counsel for the applicant society

T. Simpson — counsel for the respondent M.L.

S. McCooeye — counsel for the respondent J.M.

No appearance by or on behalf of D.P., even though served with notice.

L. Marshall — counsel for the Office of the Children's Lawyer, legal representative for the child O.

KWOLEK J.:

Summary of Issues

[1] The issue in this case is what documentation should be provided to the assessor once a s. 98 parenting capacity assessment has been ordered.

Factual Background

[2] In two related court proceedings involving children ten, three and one and a half years of age, motions were brought by the Children's Aid Society for a parenting capacity assessment report. The assessor has been chosen. The questions to be answered by the assessor have been determined on consent. Counsel for the father agreed, when the motion was argued before the court, that his client would consent to the parenting capacity assessment but wanted no other background information to be provided to the assessor prior to interviewing and testing the parents who were to be assessed. He argued that to provide the volumes of materials found in the continuing record, even in the form of affidavit materials, some of which was disputed, would create a confirmatory bias for the assessor prior to meeting with the parents. Similarly, he suggested that the assessor should not be provided with an opportunity to speak to the child protection worker.

[3] The Society opposed the suggestion that no background information be provided to the assessor. The Children's Aid Society argued that the lack of background information would, in the circumstances of this case, produce a report with little or no evidentiary value. The Society argues that they would not want a report completed without the information in the continuing record which totals several volumes of material involving the two older children and one volume involving the youngest child. The Children's Aid Society argues that for several years, the practice in our jurisdiction has been that all the documentation in the continuing record has been provided to the assessor and, in addition, the assessor meets with the child protection worker or other Children's Aid Society workers to gather information before the assessor meets with the parents and performs psychological and other testing and before observing visits of the children with the parents.

[4] The Children's Aid Society further argues that without background information, the assessment report would be of little value and prone to attack by parents' counsel on the basis that insufficient or inadequate information was provided to the assessor.

[5] Counsel for the father argues that just because the past practice has been to provide the continuing record to the assessor and to have the assessor meet with the child protection worker does not mean that such a practice of providing all the information in the continuing record is correct and the parties and the courts should assess what is the best way to ensure that the report is accurate and unbiased. The assessors are usually compensated by the Children's Aid Society which creates, to some extent, a perception of an apprehension of bias, and nothing further should be done which would create a report that may be viewed as biased or at least create a perception for the parents that the process is flawed.

[6] The parties and the court hope that the report of the assessor will assist the court to determine whether or not the parents are able to care for their children and what services need to be implemented to ensure the safety and best interests of the children.

Questions to be Posed in This Case

[7] The questions posed to the assessor are as follows:

1. Does the mother or the father have the ability or capacity to parent the children or any one or more of the children either together or separately?

2. If the mother or the father does not have the capacity or ability currently, will he/she be able to develop that capacity or ability, and what is the likelihood that they will do so and in what time frame?

3. Does the mother or the father have such cognitive concerns, mental health concerns or physical concerns that would impact his/her ability to parent the children? If such concerns or delays exist what impact would this have upon the mother's/father's ability to acquire the skills or abilities necessary to parent?

4. What is the psychological profile of the mother? What is the psychological profile of the father? Does either the mother or the father have personality or psychological characteristics that would impact their ability to parent and if so, specifically, in what ways.

5. What if any risk does the mother pose to the children? What if any risk does the father pose to the children?

6. What is the extent of the children's attachment and bonding to the mother and the father? Are the children capable of forming new attachments with someone other than the mother and the father?

7. Are there any recommended services to overcome any issues identified above and what is the likelihood that such services will be sufficient to overcome the identified issues?

8. Any other issue that the assessor, in the assessor's opinion should be addressed.

[8] The following are the concerns that have been identified by the Society relating to the parents' ability to care for their children:

1. The combination of the mother's mental health issues and the father's mental health issues;

2. The father's disregard for the mother's mental health issues;

3. The parents' inability to follow directions and instructions from the Children's Aid Society to ensure the safety of their children;

4. That the parents are unable to maintain their home in an uncluttered, hygienic and clean condition to allow the children to be safely returned to their home.

5. The parents' cognitive deficiencies are such as to impact on their ability to understand the safety and other issues posed by the conditions of the home;

6. Concerns regarding the parents' general neglect of the children and overall deficiencies in their parental abilities.

Historical Concerns

Factual Background

Court History

[9] The Children's Aid Society has been involved with this family since the birth of the oldest child. Initial concerns were raised with respect to the mother's parenting ability and her intellectual capacity to properly parent her oldest child. The mother appeared able to raise the oldest child with the assistance of the maternal great grandparents who had raised the mother, especially with the help of the maternal great-grandmother.

[10] The mother has admitted to the Children's Aid Society that the mother suffers from an auditory processing disorder and depression. The Children's Aid Society continued to be involved with the mother following the birth of their second child and court proceedings were commenced, for the first time with this family, when the parents were not voluntarily co-operating with the Children's Aid Society after the second child's birth.

[11] Court orders for Children's Aid Society supervision were obtained for these two children on 2016 for a period of nine months. The two children were found to be children in need of protection pursuant to ss. 37(2)(b)(i) and(ii) of the former Child and Family Services Act. The Children's Aid Society advises in its material that they were in fact hoping to terminate their formal court involvement with the family in 2017 prior to the birth of the third child.

[12] Following the birth of the third child E., the Children's Aid Society was contacted by the public health nurse expressing concerns about the mother attempting suicide and having suicidal thoughts in the month following the birth of the youngest child. When the Children's Aid Society worker attended, the child was found to be sleeping contrary to safe sleeping procedures on a large mattress covered with a large comforter and a heavy feathered pillow crowning her head. Under the pillow were extension cords with cords plugged in and a lighter.

[13] The child E., born in 2017, was apprehended with a warrant from the care of the parents in October 2017. The most significant factor precipitating the apprehension of this infant was the deteriorating mental health of the mother and her expressed suicidal ideation and an apparent suicide attempt the week before Society intervention when she had taken an additional three pills of her prescribed medication.

[14] The remaining two children, who were eight years of age and about one and one-half years of age at the time the youngest child was apprehended, remained in the parents' care. In November 2017, a final order was made placing the two older siblings in the care of the parents under Children's Aid Society supervision for a period of nine months.

[15] Following the apprehension of the child E., the parents engaged in services, met with the Children's Aid Society worker and were able to provide adequate care of the two older children, although there continued to be issues regarding the cleanliness of the home as well as issues regarding the middle child's weight gain.

[16] The infant child began spending more time with the parents although there continued to be some concerning parenting issues noted of the care of the middle child, the issue of the parents failure to regularly change diapers for the two youngest children, and the parents failing to take direction from the Children's Aid Society in not keeping track of formula consumed by the infant.

[17] At a temporary care and custody hearing, in a decision released in February 2018, Justice Dunn ordered the return of the child E. to the care of the parents but imposed some transitional provisions and preconditions prior to the child being returned, setting a date in April 2018 as the date for the return of the child to the parents' care "or such earlier date as agreed to by the Society and the parents."

[18] The child E. was formally returned to the care of the parents in April 2018.

[19] The parents moved into new accommodations and when the worker was able to attend in the home in May 2018, many items were still in boxes that were piled high. Such storage of boxes were viewed by the Children's Aid Society as posing a potential hazard to the children should the boxes topple over. The children's bedrooms appeared to be satisfactory.

[20] The oldest child, it was reported, began missing school for various reasons including that she was being bullied, to help with packing for the family's move and for other miscellaneous reasons offered by the parents.

[21] Dr. K. had indicated in a letter to the Children's Aid Society dated May 2018 that he was concerned about the mother's ability to look after the needs of the children and about her mental health as she had also missed her last three appointments with the doctor.

[22] The children O. and E. were reported by the doctor as doing fine. All immunizations were up to date for the children.

[23] Dr. K. did indicate concerns with the child C.'s lack of weight gain from September 2017 to March 2018.

[24] In May 2018, two other protection workers attended at the parent's home and observed the child C. to be filthy, with no shoes and socks walking on the sidewalk while the parents were visiting with their neighbours. In the home there were items and garbage on the floor and the condition of the entire home was observed to be a hazard.

[25] Later in May 2018, on returning to visit the home, the worker reported that there were "dirt, containers, food garbage, food wrappers, dirty diapers and used baby wipes scattered across the floor on the main level."

[26] The Children's Aid Society brought all three children to a place of safety with a warrant removing the children from the care of their parents.

[27] After obtaining the warrant, on attending at the home, the child protection worker observed that there was still a pile of clothing on the floor in the child E.'s room and E. was wearing no clothes but only a diaper which was sopping wet. C. was filthy wearing a dirty onesie; his hair was matted; the top of his head, arms and legs were sunburnt and fingernails were dirty. O. claimed to have been sunburned as well and there was an unpleasant odour coming from the child O. E. had a sunburn on her face, had a dirty neck and had cradle cap.

[28] The Children's Aid Society has identified concerns with the ability of the parents to maintain the home in a safe and sanitary manner or have the capacity to meet the ongoing needs of the children.

[29] The father in his affidavit material filed indicates that he will work co-operatively with the Children's Aid Society and deal with issues of concern.

[30] The home, the father advised, had been in a state of upheaval during the move. Other factual allegations were disputed by the father.

Legal Analysis

[31] The purpose of this parenting capacity assessment, based on the questions posed to the assessor, is to investigate the ability of the parents to care for their children. The report should also be used by the Children's Aid Society, the parents and the court to determine what services are needed and how can these services be provided to fashion a parenting plan in the best interests of the children. This inquiry would require some analysis and testing of the cognitive ability and psychological profiles of the parents and how this would impact on their ability to parent. There is nothing in the legislation or the regulations which describes what information must or must not be provided to the assessor for the preparation of the parenting capacity assessment report.

[32] The relevant provisions of s. 98 of the Child, Youth and Family Services Act, relating to such a report, are as follows:

98 (1) In the course of a proceeding under this Part, the court may order that one or more of the following persons undergo an assessment within a specified time by a person appointed in accordance with subsections (3) and (4):

1. The child.
2. A parent of the child.
3. Any other person, other than a foster parent, who is putting forward or would participate in a plan for the care and custody of or access to the child.

Criteria for ordering assessment

(2) An assessment may be ordered if the court is satisfied that,

(a) an assessment of one or more of the persons specified in subsection (1) is necessary for the court to make a determination under this Part; and

(b) the evidence sought from an assessment is not otherwise available to the court.

Assessor selected by parties

(3) An order under subsection (1) shall specify a time within which the parties to the proceeding may select a person to perform the assessment and submit the name of the selected person to the court.

Appointment of person selected by parties

(4) The court shall appoint the person selected by the parties to perform the assessment if the court is satisfied that the person meets the following criteria:

1. The person is qualified to perform medical, emotional, developmental, psychological, educational or social assessments.
2. The person has consented to perform the assessment.

Appointment of a person not selected by parties

(5) If the court is of the opinion that the person selected by the parties under subsection (3) does not meet the criteria set out in subsection (4), the court shall select and appoint another person who does meet the criteria.

Regulations

(6) An order under subsection (1) and the assessment required by that order shall comply with such requirements as may be prescribed.

Report

(7) The person performing an assessment under subsection (1) shall make a written report of the assessment to the court within the time specified in the order, which shall not be more than 30 days, unless the court is of the opinion that a longer assessment period is necessary.

Assessment is evidence

(12) The report of an assessment ordered under subsection (1) is evidence and is part of the court record of the proceeding.

Inference from refusal

(13) The court may draw any inference it considers reasonable from a person's refusal to undergo an assessment ordered under subsection (1).

[33] In addition to the statutory provisions of the act, O. Reg. 115/18 provides further information relating to the assessment.

Court Ordered Assessments

Timing of assessment

34. (1) A court may order an assessment under section 98 of the Act if the criteria set out in subsection 98 (2) of the Act are satisfied and,

(a) the court has received evidence, held a temporary care and custody hearing and made an order pursuant to subsection 94 (2) of the Act;

(b) the court has made a finding that a child is in need of protection pursuant to subsection 74 (2) of the Act; or

(c) all parties to the proceeding consent to the order being made.

(2) An order under clause (1) (c) may be made at any time during the proceeding.

Contents of assessment order

35. (1) In an assessment order, the court shall include the following:

1. The reason the assessment is necessary.
2. The specific questions that are to be addressed by the person performing the assessment.
3. What questions, if any, specifically require recommendations.
4. The time period for completing and filing the assessment report.

(2) Without limiting the generality of the questions that are to be addressed by the person performing the assessment under paragraph 2 of subsection (1), the court may order that some or all of the following be assessed:

1. The parenting capabilities of the proposed participants in the child's plan of care, including those attributes, skills and abilities most relevant to the child protection concerns.
2. Whether the proposed participants in the child's plan of care have any psychiatric, psychological or other disorder or condition which may impact upon their ability to care for the child.
3. The nature of the child's attachment to a proposed participant in the child's plan of care and the possible effects on the child of continuing or severing that relationship.
4. The psychological functioning and developmental needs of the child, including any vulnerabilities and special needs.
5. The current and potential abilities of the proposed participants in the child's plan of care to meet the needs of the child, including an evaluation of the relationship between the child and the proposed participants in the child's plan of care.
6. The need for and likelihood of success of clinical interventions for observed problems.

Contents of assessment report

36. Without limiting the generality of the contents of an assessment report, every assessment report shall include the following:

1. A resumé of the person performing the assessment outlining,

   • i. the assessor's academic and professional qualifications and credentials, including any publications relevant to the questions being addressed, and
   • ii. information regarding the type and number of assessments previously conducted by the assessor.

2. A schedule setting out,

   • i. a summary of the instructions received, whether written or oral,
   • ii. a list of the questions upon which an opinion is sought, and
   • iii. a list of the materials provided and considered.

3. A schedule setting out the methodology used in carrying out the assessment, including the interviews, observations, measurements, examinations and tests, and whether or not they were conducted or carried out under the assessor's supervision.

4. The reasons and factual basis for any conclusions drawn by the assessor.

5. A direct response to the questions presented to the assessor in the assessment order, or an explanation of why these questions could not be addressed.

6. Recommendations where these were required of the assessor, or an explanation of why recommendations could not be made.

[34] As there has been a temporary care and custody order made, the court has the authority to order such an assessment.

[35] However, as the parties have not agreed to the terms and preconditions of such a report, the report is not one that has been ordered on consent.

[36] Some reported decisions have referred to sources relied upon by an assessor in determining the report's efficacy.

[37] Counsel for the father provided the case of Children's Aid Society of Halton Region v. R.R.N., [2008] O.J. No. 870, a decision of Justice Zisman who made the following comments after a 16 day trial, at paragraphs 38 and 39, regarding documentation that was provided to the assessor and the purpose of the assessment:

As indicated to counsel throughout this proceeding, it was my view that the process followed in conducting this PCA by Dr. Benoit was significantly flawed. I see no basis for Dr. Benoit's perception that, just because this matter is proceeding pursuant to section 54 of the Act, [the predecessor to the current section 98 of the Child, Youth and Family Services Act] a joint referral letter and a joint agreement as to the issues to be assessed and what documents can be referred to should be dispensed with. If counsel cannot agree on such issues, the matter should be addressed with the case management judge.

…Assessments should be used by a court only as an aid or tool to assist the court in fact-finding and cannot alone determine a matter at trial. The weight to be given to an assessment report depends on the extent to which the assessor's observations and conclusions are supported by the totality of the evidence.

[38] In Children's Aid Society, Region of Halton v. W.(A), 2016 ONCJ 358 Justice Shelaigh O'Connell made the following comments:

Dr. Blake's assessment overwhelmingly, if not solely relied on the information provided to him by the child protection workers as his "collateral" sources of information. He failed to interview any other collateral source, other than the foster mother. The failure to personally speak to or interview the family doctor, and the three medical specialists treating the mother's seizure disorder, her Crohn's disease and her Major Depressive disorder, not to mention to the maternal aunt and uncle was very concerning to the court. Dr. Blake's conclusion that these medical professionals would likely not be very objective, while assuming without question that the child protection workers would be objective was problematic, particularly given that the society is a party in this litigation.

275 Dr. Blake did not gather information regarding the mother's developmental history. Dr. Blake testified that in his view, her marital history with her husband was more relevant than her childhood, educational and developmental history or family origin.

276 Dr. Blake did not provide any developmental history of the children in his assessment. He did not speak to the developmental paediatrician to the youngest child and relied upon the information from the foster parent regarding the child's special needs.

[39] In that case, the trial judge expected the assessor to investigate other collateral sources in addition to speaking with child protection workers and review of court documentation.

[40] Similarly, in the Nova Scotia family court decision of Minister of Community Services v. M.F. and D.F., 2009 NSFC 16, Justice Milner described at paragraph 85, the interviews completed by the assessor and the records that the assessor had at her disposal:

In preparing the assessment, the assessor reviewed the agency's records including the notes prepared by case workers over the years. She also conducted standard psychological testing with the parents -- to the extent possible with their intellectual limitations -- and she conducted extensive clinical and other interviews with the children, the parents, foster parents, teachers, case aides, and neighbours.

[41] Similarly, Justice Katarynych in Children's Aid Society of Toronto v. J.R., [2003] O.J. No. 2095, had the following to say about parenting capacity assessments at paragraph 48:

The utility of the assessment findings and opinion are only as good as the information upon which those findings have been based. Findings and opinions fuelled by histories taken by others put in issue the extent to which the histories themselves were an accurate depiction of circumstances and persons.

[42] In order for the assessor to evaluate the parent's ability to care for the children this would normally require the assessor to observe the parents in a caregiving role. Similarly, the issue of bonding and attachment would require the family to be observed.

[43] Depending on the issues being investigated some historical background or context would be of assistance to the assessor to determine how the parents have been able, in the past, to care for their children and what resources or services have been successful in the past. Some historical background would also provide a contextual framework to assist the assessor in focusing on the issues and questions that needed to be answered.

[44] Ideally, the parties should agree, in advance, what information should be provided to the assessor, either through an agreed statement of facts or by setting out what documentation, including affidavits or other reports, including medical reports, should be provided to the assessor.

[45] It would seem logical that there should be some communication with the assessor by the parties, in advance, to determine what information the assessor believes is required in order to complete the assessment.

[46] What documentation needs to be provided in a particular case depends on the questions that the assessor needs to answer and any specific testing or collateral information that is required. In some cases a detailed factual background may not be required and in other cases it may be crucial in completing a comprehensive report.

[47] What about the unique circumstances of this case? In this case, the parents both have retained counsel and have filed answers and plans of care as well as some responding affidavits disputing some of the factual material relied on by the Children's Aid Society.

[48] In the absence of agreement, does the Children's Aid Society need to provide all the information in advance that is set out in the affidavit material of the parties? Is it not more preferable that the assessor be provided with all the material that the assessor feels is needed rather than the Children's Aid Society, the parents, or the court, speculating as to what information the assessor requires? What documentation does the court feel needs to be provided to the assessor?

[49] The court will not accede to any request, for example, to deny the assessor any information that the assessor believes is necessary for the assessor to properly answer the questions that have been posed to him. Counsel for the Society argues that if the affidavit information is provided to the assessor and nothing more, there is some certainty and transparency as to what material is considered by the assessor in preparing his report. However, it is anticipated by the Children's Aid Society, and for that matter the court, that additional information gathered from interviews with the parents, collaterals, and Children's Aid Society workers will also be considered by the assessor.

[50] The court, at trial, will generally have additional information not otherwise available to or considered by the assessor, including detailed cross-examination of the parents and evidence of other witnesses.

[51] The purpose of the assessment is not to usurp the role of the trial judge in analyzing all the evidence that is placed before the court. The role of the assessor is to provide information to the court that in accordance with the legislation, s. 98(2) of the Child, Youth and Family Services Act, is necessary for the court to make its determination and is not otherwise available to the court.

[52] Pursuant to s. 98(12) of the Child, Youth and Family Services Act, the parenting capacity assessment report is evidence that shall be provided to the court. It is one piece of evidence that the court should consider in deciding whether the children or any one of them, can or cannot be returned to the care of the parents. It should also be used to help the Children's Aid Society to determine what services and what strategies can be implemented by the Society to reunite the family, if possible. This particular assessment, based on the questions posed, does not ask for questions to be answered relating to access by the parents if they are not successful in having the children, or any of them, returned to the parents. That is an issue that the court may have to address.

[53] The final question to be answered by the assessor, being question "8" is an open ended one, namely: "Any other issue that the assessor … feels should be addressed." Although it would have been preferable that such question would have been more specific, the court does not interpret that question as being a carte blanche for the assessor to embark on inquiries not related to the other questions.

[54] Unless deemed to be necessary by the assessor, there is no need for hundreds of pages of affidavit material to be automatically provided to him, in the absence of agreement. Some of the affidavit material suggested to be provided would be inadmissible at trial as hearsay and some allegations are denied or are otherwise contradicted by other evidence in the continuing record.

Conclusion and Findings

[55] In this case what evidence can the assessor provide that is not otherwise available to the court? There is no updated psychological or cognitive testing of the parents that has been provided to the court. The issues in this case relate to the ability of the parents to care for the children, especially in light of perceived deficits in their cognitive ability and as a result of mental health issues. There is some medical evidence that has been attached to Children's Aid Society material. The mother has advised the child protection worker that the mother suffers from some disability to understand and follow directions. She advised the Children's Aid Society that she suffers from depression and a "central auditory processing" issue.

[56] It is through cognitive and psychological testing, together with observation visits of the family, that the assessor can provide expert evidence that is not currently before the court, that is unbiased and is necessary in helping the court to determine the strengths and weaknesses of the parents and whether or not they have the capacity to care for the children with family and other supports.

[57] The court is satisfied that such an assessment is necessary for the court to make a determination under the legislation and the evidence is not otherwise available to the court. The court is also of the opinion, as agreed by the parties, that a maximum period of 90 days to prepare the report is appropriate.

Court Order

1) The court orders that Dr. Schmidt shall be appointed to do the assessment and that such assessment shall be completed within 90 days.

2) The following questions shall be addressed by the assessor:

(a) Does the mother or the father have the ability or capacity to parent the children or any one or more of the children either together or separately?

(b) If the mother or the father does not have the capacity or ability currently, will he/she be able to develop that capacity or ability, and what is the likelihood that they will do so and in what timeframe?

(c) Does the mother or the father have such cognitive concerns, mental health concerns or physical concerns that would impact his/her ability to parent the children? If such concerns or delays exist what impact would this have upon the mother's/father's ability to acquire the skills or abilities necessary to parent?

(d) What is the psychological profile of the mother? What is the psychological profile of the father? Does either the mother or the father have personality or psychological characteristics that would impact their ability to parent and if so, specifically, in what ways.

(e) What if any risk does the mother pose to the children? What if any risk does the father pose to the children?

(f) What is the extent of the children's attachment and bonding to the mother and the father? Are the children capable of forming new attachments with someone other than the mother and the father?

(g) Are there any recommended services to overcome any issues identified above and what is the likelihood that such services will be sufficient to overcome the identified issues?

(h) Any other issue that the assessor, in the assessor's opinion, should be addressed.

[58] It does not appear that the Children's Aid Society nor the parties have otherwise asked for recommendations from the assessor beyond the answering of the questions.

[59] The court is further satisfied that the named person is qualified to perform the assessment described above based on a reading of the assessor's curriculum vitae as attached to the Children's Aid Society material. No party disputes the qualifications of the assessor.

[60] It is important that the assessor have the information that the assessor believes is necessary to answer the questions that have been provided to him. The court finds that, in light of the objections of the provision of the affidavit materials to the assessor, and in light of the issues to be determined and the rationale for such a parenting capacity assessment report, it will not order, in the absence of consultation with the assessor, that all of such affidavit materials be automatically be provided to him in advance.

[61] However, it would be unsatisfactory to ultimately deny the assessor, prior to the completion of his report, information that he feels he requires in order to properly complete the assessment. Once the assessor begins and proceeds with the assessment he may very well request that additional affidavit material should be provided to him and my order shall allow and accommodate such a request.

Order — Regarding Documentation to be Provided to the Assessor

[62] The court orders that the following information should be provided to the assessor:

1. A brief summary of the issues and factual background of the case. If the parties are not able to agree on what should be included in such summary by June 14, 2019, then the court directs that the Reasons of Justice Dunn dated February 27, 2018, together with these Reasons, and my earlier typed endorsement dated August 7, 2018 shall be provided to the assessor.

2. The assessor should be afforded an opportunity to discuss with the child protection worker involved with the family, the nature of the Society concerns for the family, as well as to discuss with the children's worker any special needs relating to the children and any services that they may require.

3. The assessor should also get information directly from the parents and their collaterals relating to the questions that the assessor is asked to answer.

4. Such further material that may be requested by the assessor, as well as such further interviews of collateral sources that the assessor feels would be necessary in completing the assessment.

[63] I would anticipate that the assessor may wish to speak to, or obtain further reports from, the parents' physicians or parental supports, or even to review certain documentation or other affidavits, once the report has commenced, but I leave that decision in the discretion of the assessor.

[64] In addition, the court confirms that the existing order is to continue and the parties shall be free to proceed to the next step.

Released: June 5, 2019

Justice Romuald Kwolek, Ontario Court of Justice