The Honourable Mr. Justice Price gave an insightful decision (Ganie v. Ganie, 2015 ONSC 6330) on the weight given to the OCL’s report in temporary motions. Developing on the principles established in the Genovesi v. Genovesi decision, His Honour notes that the OCL’s recommendations should generally be restricted to use at trial, where they can be fully scrutinized. He states that there is an inherent danger in relying on an assessment report which has not been tested by cross-examination, regardless of the stage of proceedings.
Furthermore, His Honour pointed to the Court of Appeal’ decision in Strobridge v. Strobridge that noted that a court should not delegate its decision-making authority on parenting arrangements to an assessor. His Honour also cited the Court of Appeal’s decision in Behrens v. Stoodley, which emphasized that the OCL’s recommendations are only the starting point and not the last word determining the issue of custody and access. The weight that the court assigns to the clinical investigator’s recommendations depends on the nature and extent of the investigation and the facts upon which the assessor based her/his recommendations. The court should examine the assessment process, how many visits were involved, what tests were used, and whether the standard assessment guidelines were met. If the process is found to be suspect, the report may not be given significant value. Ultimately, it is the court, not the OCL that determines the issues of access and custody on the basis of facts that are presented before them.
http://www.canlii.org/en/on/onsc/doc/2015/2015onsc6330/2015onsc6330.html