Assessment Reports: Kirkham v. Kirkham

The parties in Kirkham v. Kirkham had two children of the marriage and separated in 2001. Since the time of their separation, the parties had shared parenting of the children on a week-about basis. At the Settlement Conference in this matter, a parenting Assessment of the wife was ordered pursuant to s.30 of the Children’s Law Reform Act. The Assessment was performed and ultimately recommended that the children reside with the father and have weekend access visits with the mother. As a result of this recommendation, the father brought an interim motion for implementation of the Assessment Report on an interim basis. The motion’s judge, however, followed the prevailing jurisprudence on the issue and resultantly dismissed the father’s case, holding that the status quo should appropriately continue until there is a full evidentiary trial on the matter. Only where an exceptional set of circumstances arises, for example where there is a lengthy period between the motion and the trial, should an Assessment Report be used on a motion to vary an existing custody arrangement.

This case simply reiterates the well established principle that a court will be reluctant to prematurely implement an Assessment Report in favour of a prevailing custody arrangement. Especially in a case, such as the one at bar, where the custody arrangement has been successfully in operation for quite some time, the Court will not be so willing to make haste alterations to it. Quite understandably, the Court would much prefer to take such a drastic measure only if a full trial of the issue with viva voce evidence and a cross-examination of the assessor has taken place.

This Post Has 2 Comments
  1. I believe that the judge was accurate in his analysis of the law; however, the outcome of this case makes for terrible public policy. My reasoning stems from the fact that in family law matters, trials do not proceed as quickly as they should, and even if they do proceed, they are frequently and purposely delayed by the party who is opposed to the implementation of the Assessment Report. As such, by the time the trial actually takes place, the Report may be dated and therefore the court may not rely on the report. Furthermore, the status quo is so highly enshrined and regarded in family law that judges may rely on the status quo rather than a dated report by an expert. At the end of the day, the status quo essentially hands over on a silver platter to the unfavourable party a brilliant reason to encourage trial delay.

  2. I believe that given the ages of the children and the fact that this was a motion to change, the matter could have been heard as a motion and not determined at a trial. Although I believe that these motions to change should be heard by way of a motion and not as a trial, the Court of Appeal feels differently. As such, in following the law, this matter ought to be heard at trial. Given the usual delay in reaching trial this might have had an unfortunate result, however, in this case as the trial was approximately two months after the motion was heard it made sense to wait. In most cases, however, the delay could be numerous months to years and the information obtained at the assessment would no longer be current or useful. This case was properly decided, but will not be helpful as a precedent.

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