Position Paper: Frivolous and Vexatious Complaints Against Custody & Access AssessorsNovember 2016

The Action Group on Access to Justice (TAG) is catalyzing solutions to Ontario’s access to justice challenges by facilitating collaboration with institutional, political and community stakeholders. TAG is funded by the Law Foundation of Ontario with support from the Law Society of Upper Canada.

Unmeritorious/Unfounded Complaints Against Custody and Access Assessors

TAG Assessments Task Force Position Paper, November 2016

Introduction

This paper has been prepared by a subcommittee of the Task Force on Custody and Access Assessments which was formally launched in June of 2015 as an initiative of The Action Group on Access to Justice (TAG) to develop potential solutions to challenges regarding the provision of custody and access assessments in Ontario. TAG was convened by the Law Society of Upper Canada in June 2014 with an initial list of almost 200 individual and organizational participants in order to facilitate collaboration on access to justice initiatives in Ontario. The Task Force on Custody and Access Assessments includes representation from the Ontario Superior Court of Justice, the Ontario Court of Justice, the Ministry of the Attorney General, the Family Rules Committee, the family law bar, mental health professionals, the Office of the Children’s Lawyer, law professors and researchers. We have also sought and to some extent received input from the associations and governing bodies for the professionals who conduct these assessments. The principle contributors to this paper are listed in the attached Appendix A.

It is important to note as a preliminary matter that family law professionals have been attempting to make progress on the challenges that arise when family litigants make unmeritorious complaints of professional misconduct to an assessor’s governing body for many years. A discussion paper was released in 2009 by a multi-disciplinary group of Ontario family law professionals to bring awareness to this issue and to propose procedural reforms, largely in response to a complaint that had been made against a well-known Ottawa psychologist, which complaint was only dismissed after extensive investigation. A particularly apt excerpt from the executive summary of that discussion paper reads as follows:

… 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. Legal costs increase, families endure stressfully long wait-times and children suffer while their parents remain in tense custodial limbo due to excessive delays caused by a dearth in available assessors.

A copy of that discussion paper is attached as Appendix B. Unfortunately, it does not appear that any procedural or legislative changes were introduced in response to that work.

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More recently, in June of 2015, a presentation was delivered on this topic at the Association of Family and Conciliation Court’s 52nd annual conference in New Orleans, Louisiana by Task Force members Tami Moscoe and Dr. Barbara Jo Fidler, along with Dr. Graeme Clark (Alberta) and Dr. Jenni Neoh (Australia). As you will see below, research from that presentation helped to inform this position paper.

Background

Ontario’s family law legislation and Family Law Rules permit the Court to appoint an assessor in custody and access cases to help determine the needs of a child and the ability and willingness of each parent to meet those needs. These custody and access assessments are conducted by professionals who are trained as social workers, psychologists, or psychiatrists; for the most part on a private retainer basis. Apart from these assessments that are conducted by a private assessor, the Office of the Children’s Lawyer (OCL) may be appointed by the Court to conduct a clinical investigation and to report to the Court on matters concerning custody of, or access to, a child and concerning the child’s support and education. Social workers may also be appointed to provide services to assist legal counsel in representing a child through the OCL. Custody and access referrals to the OCL must meet certain criteria to be accepted. Assessments are also available in the child protection context; usually, but not always, publicly funded.

Assessments can play a significant role in resolving high conflict parenting disputes for many reasons. Perhaps most importantly, they help to create child-focused parenting arrangements that are tailored to a family’s particular circumstances and informed by the assessor’s specialized training, expertise, and experience. They do so by providing the parents and the Court with informed and independent evidence of, and analysis regarding, the child’s needs and the ability of each parent to meet those needs. This evidence and equally importantly this analysis helps to encourage negotiated resolutions and, where required, informs adjudicative decisions. These cases can be very difficult to resolve in the absence of input from a mental health professional with expertise relating to post-separation parenting issues.

It is important to acknowledge upfront that conducting custody and access assessments is difficult work. In many cases (although not all) the parents involved in these assessments fall into the high conflict parenting category, battling over the most important people in their lives; namely, their children. These are therefore very high stake circumstances for the parents, and assessors must work intensively with these parents to obtain the necessary information at this particularly challenging time in the parents’ lives. The assessor then has to formulate and relay to the parties and the Court his or her analysis and opinions about the parenting and related

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issues – which often gives rise to feelings of embarrassment, offence and defensiveness on the part of one or both parents.

The professional’s role when conducting an assessment is entirely different from his or her role in the context of a traditional therapist-client relationship. When acting as an assessor, the professional is appointed by and accountable to the Court in a forensic role. Moreover, his or her evidence and analysis will be subjected to the scrutiny of each parent (through counsel or, in the case of self-represented parties, directly) and, ultimately, the scrutiny of the Court. In other words, the court process already provides both parents with the opportunity to challenge the assessor’s process, as well as his or her views of the case and recommendations. It is then up to the Court to determine what weight, if any, the assessment report will be given when making either settlement recommendations or a ruling on the custody and access/parenting issues.

The assessment role is also different because the assessor must display neutrality to each parent as he or she evaluates their respective positions, which is in relative contrast to his or her approach and obligations to an individual when providing that person with therapeutic services.

High conflict family law cases frequently involve parents with problematic personality tendencies and/or personality disorders.1 Additionally, many of the family law cases that proceed to an assessment involve litigants who are deeply entrenched in the dispute. These cases are usually extremely difficult to resolve for many reasons, including the importance of the parenting issues to the parties, unrealistic expectations held by one or both parties, an inability for litigants to move from considering their own interests to those of the children, and, in many instances, the impact to some degree of a mental illness and/or personality disorder on the part of one or both parents. Consequently, it is perhaps not surprising that such litigants tend to question the conduct of the assessor when they are dissatisfied with the assessor’s recommendations, irrespective of whether or not the assessor has met his or her professional obligations.

Information from the College of Psychologists of Ontario shows that, historically, as many of 25%2 of all formal complaints made against its members relate to the provision of custody and access services or child protection services more generally, notwithstanding that these areas comprise only a small portion of the work of psychologists in this area. A 2007 report from the College indicated that complaints against members providing services to those involved in

1 Johnston J., Roseby V., Kuehnle K. (2009) In the Name of the Child: A Development Approach to Understanding and Helping Children of Conflicted and Violent Divorce (2nd edition). 2 Information from this College shows that 13 of 70 complaints received in 2015 related to the provision of services in a custody/access or child protection context.

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family law disputes were lodged more frequently than any other type of complaint. This figure has declined somewhat in recent years, probably at least partly on account of revised data collection practices, which now separate out assessments from therapy services in the custody/access population. Other possible explanations for the decline in complaints against Ontario psychologists who have conducted assessments may include (i) the fact that fewer of these assessments are being conducted than previously and (ii) increases in awareness and education for the professionals who provide assessment services.

Information from the Ontario College of Social Workers and Social Service Workers provides that complaints arising in the context of custody and access proceedings, including but not limited to assessment services, comprise between 35% and 40% of all the complaints received against College members. Moreover, there has been a recent increase in the total number of annual complaints received by this College, from between 50 and 60 to between 70 and 80.

In light of what was said above regarding the importance of the assessor in the resolution of challenging custody/parenting disputes, and all of the other surrounding circumstances in cases involving assessments, it should perhaps be expected that mental health professionals are the subject of a higher proportion of complaints when providing assessment services than they are when providing other professional services. Apart from these general points that may tend to lead to increased complaints being made against custody assessors, it is crucial to note that litigants may also be motivated to lodge complaints against assessors for collateral or strategic reasons; reasons which serve to advance the interests of the complaining litigant in some way regardless of their merit. More specifically, the true purpose behind a parent making such a complaint may be: (i) to delay or even thwart the assessment process, (ii) to harass the professional and draw them into the conflict (including, perhaps, to the point where the assessor withdraws); and (iii) to gain access to information through the complaints process that would not otherwise be available to the complaining party and that is not available to the other party.

The Task Force of course recognizes that there will of course be situations in which an assessor’s conduct will not be beyond reproach. Furthermore, we recognize and respect professional colleges’ obligations and actions to investigate and, where appropriate, educate and sanction members who fail to meet appropriate standards of conduct. That said, significant concerns remain about the unintended consequences and potential abuse of the current regulatory processes as these relate to complaints against custody and access assessors.

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The Regulatory Framework

In Ontario, section 30 of the Children's Law Reform Act (CLRA) provides the authority for the Court to order a custody and access assessment but does not provide a specific mechanism for dealing with complaints that arise in relation to that assessment.

Each regulatory college in Ontario bears responsibility for investigating and responding to complaints of professional misconduct against its members as part of its mandate to protect the public. As stated earlier, custody and access assessments are almost invariably carried out by one of three types of professionals: psychologists, social workers and medical doctors (more specifically, usually psychiatrists). For psychologists, the governing body is the College of Psychologists of Ontario. Social workers are governed by the Ontario College of Social Workers and Social Service Workers. Psychiatrists are governed by the College of Physicians and Surgeons of Ontario.

Subsections 26(4) and (5) of Ontario's Health Professions Procedural Code, Schedule 2 to the Regulated Health Professions Act3 ("RHPA Procedural Code") – which applies to psychologists, medical doctors and several other health care professionals – provide as follows:

26. (4) If the panel considers the complaint to be frivolous, vexatious, made in bad faith, moot or otherwise an abuse of process, it shall give the complainant and the member notice that it intends to take no action with respect to the complaint and that the complainant and the member shall have a right to make written submissions within 30 days after receiving the notice.

(5) If the panel is satisfied, after considering the written submissions of the complainant and the member, that a complaint was frivolous, vexatious, made in bad faith, moot or otherwise an abuse of process, the panel shall take no action with respect to the complaint.

These RHPA Procedural Code provisions thus require the applicable regulatory college to take no action vis-à-vis a complaint where the panel "considers" (when acting under subsection 26(4)) or is "satisfied" (when acting under subsection 26(5)) that the complaint is any of the following: frivolous; vexatious; made in bad faith; moot; or is otherwise an abuse of process. This is, on its face, a rather broad provision, and it would seem that what is being addressed in this position paper – namely, collateral, strategic, or otherwise unfounded complaints made against custody and access assessors – could easily fit within one or more of these categories. In fact, these types of complaints would seem to fit neatly into the "made in bad faith" and "abuse

3S.O. 1991, C. 18.

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of process" categories, and perhaps also the "vexatious" category. Provisions similar to these also exist in the regulatory legislation relating to social workers. Specifically, subsections 24(1) and (2) of Ontario's Social Work and Social Service Work Act, 19984 ("SWSSWA") (under Part III, headed "Complaints Committee, Discipline Committee and Fitness to Practise Committee") provide as follows regarding complaints:

24. (1) The Complaints Committee shall consider and investigate written complaints regarding the conduct or actions of members of the College

(2) Despite subsection (1), the Complaints Committee shall refuse to consider and investigate a written complaint if, in its opinion,

(a) the complaint does not relate to professional misconduct, incompetence or incapacity on the part of the a member of the College; or

(b) the complaint is frivolous, vexatious or an abuse of process.

As with the RHPA Procedural Code provisions, the SWSSWA provisions are mandatory ("shall") in nature, such that the Complaints Committee must not consider and investigate a complaint that is, among other things, frivolous, vexatious, or that constitutes an abuse of process.

Given these seemingly strong, mandatory provisions in the regulatory provisions, how is it that unfounded/unmeritorious complaints made by parents against assessors in family law proceedings are causing the problems we point out in this position paper? That is, why are these "frivolous and vexatious" provisions or tests (as they are sometimes known) not being applied by the regulatory colleges right at the outset to weed out and halt collateral or strategic complaints made against assessors, such that these complaints are saved from being subjected to full investigation and scrutiny? The answer seems to lie in the rather restrictive way that these provisions are presently being applied by the regulatory colleges. Addressing subsections 26(4) and (5) of RHPA Procedural Code, the author of A Complete Guide to the Regulated Health Professions Act, 19915 says in this regard:

An exception to the duty of the ICRC to investigate every complaint is if the complaint is frivolous, vexatious, made in bad faith, moot or otherwise an abuse of process. In that case the ICRC is permitted, following a fair procedure, to take no action on the complaint…

4 S.O. 1998, c. 31. 5 Richard Steinecke, A Complete Guide to the Regulated Health Professions Act (Carswell: Toronto (looseleaf)).

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The phrase "frivolous and vexatious" is the test used by the courts when deciding whether to restrict a person's right to use the court system. Generally, a legal proceeding is considered frivolous and vexatious only where it is repetitive, cannot succeed or would lead to no possible good. It also must be fairly obvious that there is little merit to the complaint and processing the complaint is unfair in the circumstances. For example, a complainant repeating, without any new evidence, a complaint that has been previously disposed of might meet the test. A complainant's history of making numerous complaints against other practitioners can be relevant to a determination of whether a complaint is frivolous and vexatious. If the complaint is "borderline frivolous and vexation", it is often just as easy to quickly process the complaint then to engage the frivolous and vexatious process. The panel should exercise this discretion cautiously as the courts and the [Health Professions Appeal Review] Board have been critical of regulators who have inappropriately refused to consider a complaint. Public confidence in the complaints process is fostered by investigating all specific complaints of misconduct.6

As the situation presently stands, then, it seems that regulators are very reluctant to rely on the "frivolous and vexatious" analysis to halt complaints from the outset. As a result, complaints against custody and access assessors – irrespective of whether they have been made for strategic, collateral, or otherwise nefarious purposes – are generally subjected to a full investigation by the regulatory college to which the assessor belongs.

Our Understanding Regarding the Outcomes of Complaints

Information from the College of Psychologists of Ontario7 shows that, between 2006 and 2011, 25% of all complaints (n = 71) related to custody and access and child welfare assessments. In 40% of these particular complaints (n = 29), the College took no action following a full investigation. Four of these complaints were deemed frivolous, vexatious, made in bad faith, or otherwise an abuse of process after some level of investigation. A further four were referred on to the College Discipline Committee, and resulted either in the imposition of a limitation in the Certificate of Registration (preventing authorization to continue working in the area) or a voluntary resignation from the College. In the remainder of these "full investigation" cases, the disposition was educational in nature with information provided to members for their future consideration.

6 Ibid. pages 5-10 to 5-11, emphasis added (footnotes from the text, containing citations of various cases, omitted). 7 College of Psychologists of Ontario E-Bulletin Vol. 3(1), February 2012.

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With respect to social workers, we have been advised by their College that:

• Only very small percentage (1-2%) of complaints are referred to the College’s discipline committee for a hearing. The rest appear to be resolved either informally or through the investigation phase.

• No complaint arising in the context of a custody and access proceeding has ever resulted in disciplinary action against a college member.

• Notwithstanding the above, the use of the "frivolous and vexatious" analysis by the College to dispose of any complaint, irrespective of the subject matter, is exceptional, and employed very infrequently.

These results do not appear to be unique to Ontario. Going back to 2001, a survey of 61 American state and Canadian provincial licensing boards over a 10 year period reported that only 1% of complaints resulted in findings of formal fault against the assessor8.

In summary, it appears that while the regulatory colleges that govern the professionals who conduct assessments are generally quite reticent to dismiss a complaint against an assessor without first subjecting it to a thorough investigation and, potentially, adjudicative processes, these complaints are often ultimately dismissed. Moreover, where disciplinary or remedial action is taken, the investigations rarely if ever result in a serious disciplinary outcome.

The Concerns

For the purposes of this paper, the Task Force has focused on four significant current concerns:

1. Fewer Qualified Assessors are Available In an informal survey of the family law bars of Ontario and Alberta that was conducted for the 2015 AFCC presentation, family lawyers consistently agreed that there was a shortage of mental health professionals willing to do this important work.

This is consistent with results from a recent survey conducted by a Task Force for the Ontario College of Psychologists9, which found that only 4% of its members reported doing a significant amount of custody/access assessment work.

8 Kirkland K., Kirkland L., Reaves R. (2004) On the Professional Use of Disciplinary Data. 9 Prepared by members of the Task Force on Psychological Service Provision in the Context of Disputes Concerning Child Custody, Access or Child Protection for the Council of the College of Psychologists of Ontario in (circulated in April 2015).

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In the 1980s, there was a network of family court clinics in Ontario, through which a generation of custody and access assessors were trained. This system was largely dismantled as government funding shrank in the 1990s and today few such clinics remain. Consequently, there is now a very limited breeding ground for new assessors.

Additionally, at present there are limited opportunities for education and, equally importantly, there are limited internships for, and clinical supervision of, newer assessors.

Moreover, an entire cohort of experienced assessors, many of whom trained at the above-mentioned family court clinics, has reached or is presently nearing retirement. As a matter of demographics, without a significant influx of new assessment professionals it will not be possible to supply enough assessments to meet the demand of Ontario families who need those services. Unfortunately, such an influx of new assessment professionals is not anticipated – at least not in the current "complaints-rich" environment.

2. The "Chill Factor" on Existing Assessors

The survey of Ontario psychologists also points to a “chill” in the provision of custody and access assessments by professionals on account of the current complaints environment. For example, many of those who identified in the survey as being qualified to offer services in family court-related matters stated that they choose not to take on custody and access related work. When asked why this was the case, the first answer was a lack of interest in providing these services, followed closely by the risk of a professional complaint.

American studies point to the lengthy, costly, and stressful nature of the complaints process. Assessors who have been the subject of complaint investigations work under a cloud of emotional and financial stress while the complaint is outstanding, often for many years, which naturally tends to discourage further practice in this area.10 A recent, cross-sectional, and extensive study of British medical professionals (generally not of custody assessors) indicated there were significantly higher rates of depression and anxiety among those practitioners facing current or recent professional complaints.11 It is not difficult to extrapolate that the same results would likely apply to professionals engaged as custody and access assessors.

Indeed, a significant proportion (30%) of the respondents in a US survey of custody evaluators (the American phrase for custody assessors) noted significant long-term negative impacts from

10 Bow J., Gottlieb M., Siegel J., Noble G. (2010) Survey of Licensing Board Complaints in Child Custody Practice. 11 Bourne T., Wynants L., Peters M., Van Audenhove C., Timmerman, E., Van Claster B., Jalmbrant M. (2015) The Impacts of Complaints Procedures on the Welfare, Health and Clinical Practice of 7926 Doctors in the UK: A Cross Sectional Survey.

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complaints, including decisions by the professionals to stop conducting custody evaluations or even to resign entirely.12

When asked under what circumstances they might consider providing these assessment services, Ontario psychologists who responded to their College’s survey provided the following top three responses:

• Increased professional supports • Decrease in the risk of college complaints • Decrease in civil/legal complaints

3. The Delays in Starting and Finalizing Assessments

A serious problem relating to many custody and access assessments is how long these take to start and/or complete. Several factors tend to lead to delays in the commencement of an assessment. One key factor is that, in many jurisdictions in Ontario, there are a very limited number of mental health professionals who do assessments, and many of those professionals will do assessments only as a small portion of their professional practice. The few professionals who are willing to do these assessments work are often overloaded with work, and therefore often have lengthy wait times before they can begin new assessments. Further, some of the few assessors who will take on these cases feel a sense of responsibility to take on several assessments at the same time, which may contribute to their delays in completing the assessments.

According to the survey conducted for the 2015 AFCC presentation, a significant majority of family lawyers across several Ontario centres agree that it takes too long to start and complete an assessment. Delays caused by the lack of assessors who are readily available to conduct assessments limits the Court’s ability to ensure that cases proceed towards a final disposition in a timely fashion. This leaves children and families in limbo while the dispute is pending. Further, research demonstrates that children suffer from persistent and sustained conflict between their parents post-separation, and that delays that prolong the conflict create further risk of harm for the children.13

12 Bow J., Gottlieb M.C., Siegel J., (2010) Survey of Licensing Board Complaints in Child Custody Practice. 13 Cummings, E.M., Davies P.T. (2011) Marital Conflict and Children: An Emotional Security Perspective and Emery R. E. (1982) Interparental Conflict and the Children of Discord and Violence. Psychological Bulletin, 92.

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4. The Impact on the Family Law Case

Once a complaint against an assessor is made to his or her regulatory body, the assessor may not be prepared or even able to continue the assessment process to its completion. In this regard, the assessor may be advised by counsel acting for him or her vis-à-vis the complaint to withdraw from the assessment because of the potential impact – whether actual or perceived – that the complaint may have on the professional’s analysis and opinion in the assessment. Where the assessor will not continue to act on account of a complaint and if the assessment is incomplete, both the family and the Court are effectively left with one of two undesirable outcomes: either (a) having to appoint a new assessor who may have to begin from scratch; or (b) having to proceed to have the custody and access matter resolved without the benefit of the assessment report.

Additional and significant costs and delays for the family will obviously result if a new assessor is appointed. Indeed, on account of their comprehensive and detailed nature, assessments are virtually always expensive (and sometimes very much so). Adding additional layers of expense can make the process entirely cost-prohibitive for all except perhaps the most well-to-do parties and this creates a patent access to justice problem.

5. The Potential Impact of Complaints on the Assessor's Analysis and/or Recommendations

Another concern vis-à-vis assessors is that the mere spectre of collateral or strategic complaints – which loom over custody and access assessors at all times – may be enough in and of itself to make assessors more tepid and tentative. By being less frank, open, and direct in his or her analysis, conclusions and/or recommendations, the assessor makes him or herself less apt to be a target of a complaint from a disgruntled parent. The problem with such an approach is patent. It means that uncomfortable truths may be compromised, glossed over, or put into softer focus, in a proactive attempt to appease the would-be complainant parent. It is obviously impossible to determine the extent to which this applies, and in fact it may apply (to the extent it does at all) at either a conscious or subconscious level on the part of the assessor. It is also a more amorphous concern than the other problems mentioned earlier, but that fact does not make it any less troubling because (again, to the extent it exists) it goes directly to the quality and integrity of the assessment. This can ultimately impact the parenting arrangements that are recommended, agreed upon by the parties or ordered by the Court post-assessment.

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Potential Improvements

A number of potential measures could be introduced with a view to reducing the risk of a further diminution in the availability of assessment services. The breadth and scope of these measures would depend on: (i) how far a jurisdiction wants to involve the family law justice system in the assessor complaints process, which is usually the sole preserve of the professional's governing regulatory body; (ii) in the resolution of these complaints, what special recognition is to be given to the unique context of a family law dispute; and (iii) what deference, if any, is to be proffered to the court-appointed professional who is providing assessment services.

As an overarching matter, it is the consensus of the members of this Task Force that more needs to be done to protect (i) separating parents and their children who require these assessment services, (ii) the integrity of the family court system, and also (iii) the assessor from the impact of meritless or strategic complaints. This protection is particularly important in the critical period before the assessment has been completed and a final court decision, if required, has been rendered.

Again, the Task Force is not saying assessors should be exempt from scrutiny by their respective regulatory bodies for potential misconduct. Rather, the Task Force is noting there are significant competing interests at stake in these cases (on one hand the "protecting the public" mandate of the professional colleges and on the other hand the need to maintain the integrity of the court process for challenging parenting cases). What this really boils down to is the need to ensure that assessments can be conducted in cases where they are required, and that they are completed when ordered rather than being derailed by unmeritorious complaints that have been launched by disgruntled parties in a family law dispute. The question therefore becomes what is the best way to achieve a more appropriate balance between these priorities?

As the starting point in considering possible solutions, the Task Force examined how the problem was treated in other jurisdictions both within and outside Canada. Within Canada, it is noteworthy that Alberta has already taken steps to tackle this issue in a meaningful way. A number of years ago the Alberta Court of Queen’s Bench worked with local mental health practitioners, lawyers, and the regulatory bodies of professionals who conduct assessments to develop Family Court Practice Notes 7 and 8. Practice Note 7 governs an Intervention Order, whereby a parenting expert is appointed in an evaluative (e.g., a parent psychological evaluation), therapeutic, or parenting coordinator role. Practice Note 7 describes the parenting expert as a friend of the Court and states that the expert is responsible to the Court and not to either party to the dispute. Practice Note 7 specifically provides as follows:

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Unless otherwise ordered, no complaint may be made to the professional body governing the practice of the parenting expert until the Intervention is complete.

Practice Note 8 governs assessments and provides as follows:

Unless otherwise ordered, no complaint may be made to the professional body governing the practice of the parenting expert until the Assessment is complete or the court has rendered its decision in the matter for which an Assessment has been ordered.

Alberta Practice Notes 7 and 8 therefore both require that a litigant first obtain permission from the family court before he or she can lodge a complaint against a parenting professional retained to provide the services stated in the Notes, unless the relevant service has been completed or, in the case of assessments, the Court has rendered its decision.

Provisions similar to Alberta’s Practice Notes exist in Western Australia, where leave of the Court is required to make a complaint against the assessor if the matter is before the Court, except in “exceptional circumstances”. Further, it is worthy of note that in Western Australia all documents in the assessment file remain the property of the Court, which prevents a significant problem that can arise in the Ontario context whereby the complaining party is able, through his or her complaint, to obtain documents held by the assessor (including their notes and, potentially, psychological test reports and third party records) to which the other parent does not have equal access.

In New Zealand, the Family Court is generally recognized as the best forum to deal with most complaints involving psychologist assessors, as part of its jurisdiction to regulate its own process and exercise the powers and functions conferred on the Court by statute. This generally includes the authority to deal with: (i) allegations of perceived bias; (ii) concerns about the assessment methodology used; (iii) allegations that one parent was treated differently than the other, without sufficient reason; and (iv) any matter relating to the content of the report. The governing body of New Zealand psychologists, on the other hand, typically deals with matters that go beyond the process of the Court and those that raise questions about professional competence, conduct, or ethics. The Family Court generally considers all complaints first (provided they have been made within 6 months of the conclusion of the case), and a judge decides whether the complaint relates to a matter within the court process or, alternatively, appears to be of sufficient seriousness to require a formal referral to the Board.

In Pennsylvania, legislation was introduced in 2011 providing that no party to a child custody matter in which the Court has appointed a licensed health care practitioner to assist the Court in determining or implementing a child custody agreement, may be permitted to file a

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complaint against the practitioner during the pendency of the matter and for 60 days thereafter.

Similarly, in New Mexico regulatory processes mandate that, for complaints against assessors to be lodged "mid-stream", the complainant must demonstrate “exceptional circumstances” requiring the governing board’s attention prior to the completion of the custody case.

In Arizona, until recently, a requirement existed for the Court first to find a “substantial basis” for the complaint before referring the complaint on to the board for consideration. This regime was recently changed, however, such that these complaints now go directly to a three member screening panel under the auspices of the governing body to ascertain whether the complaint may have merit or, alternatively, whether the complaint is limited to someone merely being dissatisfied with the professional’s decision. If the screening panel finds that the complaint indeed has merit, the complaint process then proceeds to the full Board for investigation and decision.

Another related issue is the extent to which the current forms required to initiate a complaint could be modified to recognize the unique nature of assessment services. For example, in both New Mexico and Arizona, complaints against assessors must be completed on a special form, differentiated from the usual complaint process form, to recognize the unique and complex nature of assessment work. Copies of these complaint forms are attached as Appendix C.

The Task Force was pleased to learn that the Ontario College of Social Workers and Social Service Workers has fairly recently developed a standard complaint form which, while not specific to assessments, does require the complainant to identify him or herself and to specify the particulars of the complaint and the circumstances in which the complaint arises. This complaint form specifically states (as a form of information or, in essence, "warning" to the complaining parent) that the College cannot “reconsider or instruct the reconsideration of a custody and access assessment or influence a matter that is, or has been, before the courts”. A copy of this form is attached as Appendix D.

Finally, in several other jurisdictions, a legislative presumption exists that the assessor has acted in good faith if he or she has met the governing body’s standards. This approach was undertaken by way of legislative amendments in Florida14 and West Virginia15. As summarized, their laws state as follows:

A psychologist who has been appointed by the court to conduct a child custody evaluation in a judicial proceeding is presumed to be acting in good faith if the

14 West's F.S.A. § 61.122 (2009). 15 W. Va. Code § 55-7-21 (2004).

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evaluation has been conducted pursuant to standards that a reasonable psychologist would have used as recommended by the American Psychological Association’s Guidelines for Child Custody Evaluations in Divorce Proceedings.16

The laws in these two American jurisdictions also provide that an administrative complaint against a court-appointed psychologist relating to a child custody evaluation may not be filed on an anonymous basis. Recommendations

The goal of putting forth the recommendations in this paper is to address, to the extent possible, the challenges that arise when family litigants make unfounded complaints of professional misconduct to a custody and access assessor’s governing body. As noted above, these challenges include an immediate impact on the family and family court process while the dispute is outstanding, as well as the broader issue of the chilling impact that complaints can have on the available supply of these assessments.

The Task Force specifically recognizes that any procedural reforms to be introduced must not preclude legitimate complaints from going forward at the appropriate time.

With this background in mind, there are several approaches that reform in Ontario could take, whether within the existing college complaints resolution process or else through the family court process, and these are explored below.

Potential Court-Side Reforms:

According to some members of the College of Psychologists of Ontario17, the Court is the most appropriate forum to address concerns with custody and access assessments in the context of on-going family law litigation. Task Force participants generally agree with this statement; although, of course it would be extremely beneficial for the various regulatory colleges to implement their own special procedures, too, for dealing with this important issue (as discussed in the next subsection of this paper).

One option for court-side reform is to introduce an absolute gatekeeping function on the part of the Court where the family law case is being heard. Under such a model, family court judges would be required to screen all complaints relating to section 30 CLRA assessments as a first step, to ensure that the complaint meets a preliminary threshold before it can proceed for

16 Terrence Koller, (2005) Should There by Immunity for Custody Evaluators? Presented at the annual meeting of the American Psychological Association. 17 The College of Psychologists of Ontario e-bulletin 3(1) (2012), Complaints Regarding Assessments Undertaken in the Context of Pending Litigation.

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consideration by the assessor’s governing body. Under this model, a determination would need to be made, of course, as to the appropriate test to be applied by the Court in its gatekeeper role. For example, it may be that a complaint should only be permitted to proceed to the relevant college if the Court has found "some merit" to the complaint, as opposed to a higher threshold that the complaint can only proceed if it is found to have a "substantial basis".

This type of an approach would be consistent with the following comments in the 2009 discussion paper:

What the colleges or RHPA ignore and what is essential, in our view, is that the court itself is the foremost legal forum in which the public 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 his or her evidence and recommendations if the need arises. Absent a consensus of both parties that the assessor was unprofessional or incompetent 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 complainant faces in the family court system.

Placing this absolute gatekeeping function on the Courts may, however, impose too onerous of a task on the family court judges, who may not have the necessary expertise and/or information before them to make this determination. Further, the absolute gatekeeping model may not strike the necessary balance between the need to preserve the integrity of the court process on the one hand, and the need to protect the public from assessors who are not meeting their professional standards on the other. Indeed, two American jurisdictions (Arizona and Pennsylvania) have recently amended their legislation for that reason. Also, from a practical perspective, it would be virtually impossible to incorporate an absolute gatekeeping role in Ontario jurisdictions that do not have single judge case management for family law cases.

As an alternative, rules could be put in place preventing the filing of complaints against the assessor until (i) after the assessment report has been completed, (ii) while the family litigation is ongoing, or (iii) for a defined period of time after the litigation, without first obtaining leave of the Court. This approach would limit the Court’s role to a preliminary assessment of merit, permitting complaints to be launched directly to the Colleges afterwards. It would also make it more difficult for unhappy litigants to proceed strategically with a groundless complaint during the assessment and family law case and, as a result, would help the Court to maintain control over its process. Such an approach would not, however, provide the assessment professional with any assistance after the case has been concluded.

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Members of the Task Force agree that a complainant should be required to obtain permission from the Court before launching a complaint until the case has been resolved on a final basis. This will help ensure that the assessor’s evidence is available at trial (if the case does not settle in advance) and that the process is not derailed unnecessarily. It also provides the Court with the opportunity to weigh the assessor’s evidence in light of any concerns a complaining parent may raise.

At all times, it is the recommendation of this group that a presumption of good faith should apply to the professionals who are doing this important work, so that the onus falls on the complainant to show that the professional’s actions did not meet the applicable standard (as opposed to the other way around).

The Task Force is also interested in the New Zealand provisions that treat the assessor’s file as the property of the Court and give the Court the discretion as to when, and how, to release part or all of the assessor's file to the parties, based on the welfare and best interests of the child. This approach also protects the confidentiality of a child’s comments to the assessor or another third party, which comments may not otherwise be disclosed to the parties.

Potential College-Side Reforms:

The Task Force believes it is also important to introduce changes to college investigative and disciplinary processes that better preserve the integrity of the family court process and create an environment that is more conducive to the provision of these essential services, while still maintaining the integrity of the college's role as guardian of the public.

First and foremost in this regard, it is the Task Force's position that college complaint processes need to be amended to ensure that each complaint made against custody assessor is properly screened for inappropriate purpose (as defined by the “frivolous and vexatious” provisions referred to above), before those complaints are subjected to a full investigation. The Task Force believes that the introduction of a systematic screening requirement could give real, practical meaning and effect to the existing “frivolous and vexatious” provisions.

Screening and triage best practices and tools should be developed with consultation and collaboration between the colleges of the various professional disciplines involved in the provision of custody and access assessments, who have the benefit of input from experienced assessors. Such collaboration would be useful so that a uniform, or at least relatively similar, approach to these types of complaints would be taken by each of the relevant colleges.

The Task Force also recommends that each college introduce detailed and customized forms for complaints against custody access assessors. The idea here is to require a family litigant to explain the specific circumstances of, and background to, the complaint against the assessor,

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which would alert the College up front to relevant information that it might not otherwise have in the absence of such a customized form. This, in turn, would bolster the college screening process since it would ensure appropriate context is provided to those in the college who have been tasked with conducting the initial screening of the complaint.

Further, these types of customized complaint forms for cases involving custody assessments should be required irrespective of whether or not the family is in litigation, as similar issues may arise with assessors who have been appointed outside of the family court process (for example, in the context of a family law arbitration).

Recommendations by the Task Force as to what information ought to be sought in such a customized complaint form include: 18

• An overview statement of the complaints process • Identifying information of the complainant (preventing the anonymity of complaints) • Identifying information of the assessor • Status of the custody/access litigation • Status of the assessment process • Details of the litigation – court file number, parties, any court orders, agreements, or

arbitral awards relating to the assessment specifically or to custody and access matters generally, etc.

• A copy of any written recommendations/reports of the assessor delivered to date – which would obviously give the college investigator some insight into why the complaint was being made, if it were indeed a strategic complaint or a complaint made for collateral purposes).

• Explanation of the alleged exceptional circumstances that would require the college's attention to the complaint prior to the completion of ongoing custody/access litigation

• If the case has already concluded, information about the final settlement or any decision that has been made on the parenting issues

• Specific details of the nature of the complaint

The Task Force also would like to see all colleges provide public information to potential complainants to confirm that the college cannot influence a matter that is or has been before the courts (see above regarding the information provided to potential complainants from the Ontario College of Social Workers and Social Service Workers).

Background materials on high conflict parenting disputes should also be developed, ideally by the colleges with input from the experts in this area, for use by assessors who must respond to

18 These recommendations are taken largely from the complaint forms prepared by the Board of Psychologist Examiners of the State of Arizona and New Mexico.

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these complaints. This material could cover the nature of high conflict custody and access disputes and common personality characteristics/disorders associated with high conflict parenting, as well as information on the increased likelihood of complaints relating to assessments.

This would avoid the necessity of each assessor having to prepare this type of material for their response to the college. It could also help ensure that panel members are better informed regarding the context of these assessments. College members who serve on investigation panels should also receive training on the context of a high conflict parenting dispute and the role of the assessor in this context.

Task Force members note the College of Psychologists of Ontario’s 2014 document ‘Information For Consideration By Members Providing Psychological Services In The Context Of Child Custody Disputes And Child Protection Proceedings’ 19 which provides some assistance in this regard.

The Task Force also believes that it is important to implement a rule that the non-complaining parent be provided with notice of the complaint and a copy of the material that has been submitted by the complaining parent, and for the non-complaining parent to be entitled to receive copies of any disclosure that is provided to the complainant through the investigation process. This would avoid the complaining parent being privy to information that is not otherwise available to the non-complaining parent. This last recommendation is particularly important for family law cases that have not yet been resolved on a final basis, but it may also be important in some circumstances even where the family law case has already been resolved (for example, where a change to the existing parenting arrangements is being, or will be, sought).

It should also be noted that Task Force members are currently working on a number of related initiatives to encourage more mental health professionals to take on this important assessment work, including the need for more training, mentoring and internship opportunities. Suggested improvements that fall within these categories will be canvassed separately.

19 Prepared by the Custody & Access Task Force, Dr. Barbara Fidler (Chair), Drs. Sharon Francis-Harrison (Ottawa), Rob Rowe (Kingston), Marlies Sudermann (London). Mr. Barry Gang, Director of Investigations & Hearings, assisted the Task Force.

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A Combined Approach:

To summarize, the Task Force is proposing that changes be implemented to both Court and college processes, as follows:

1. Most importantly, a mechanism should be adopted as soon as possible that requires a litigant to obtain leave of the Court, in the jurisdiction where the family case is being heard, to launch a complaint against an assessor before the case has been concluded on a final basis.20

2. Colleges should require any individual who wishes to file a complaint arising from a custody and access assessment to complete a customized application form that identifies the complainant and requires the complainant to set out, in significant detail, various aspects regarding the circumstances in which the complaint arises, including the specific allegations as to the professional’s conduct and the status of the litigation.

3. Colleges should develop more systematic and informed protocols for screening all complaints against custody and access assessors, and for triaging them to an appropriate process for consideration.

4. Investigative and disciplinary processes should be modulated accordingly so that they are proportionate to the severity of the allegations made and the screener’s initial assessment of the likely merit of those allegations. Ideally, the several colleges whose members are involved in the provision of custody assessments services would collaborate so as to produce either standardized, or at least similar, protocols in this regard.

5. The other parent should be notified if a complaint has been made against the assessor and should be entitled to receive copies of the complaint and any disclosure that the assessor may provide from his or her file in response to the complaint.

6. Background information should be developed by each college whose members undertake assessments setting out the nature of high conflict custody and access disputes, common personality characteristics/disorders involved in high conflict parenting and the increased likelihood of complaints in this area of practice.

7. College members who serve on investigation panels should receive initial and ongoing education on the context of high conflict parenting disputes.

20 Ideally, this would be accomplished by an amendment to both the CLRA and the Family Law Rules.

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Conclusion

In putting forward these recommendations, the Task Force aims to strike a more appropriate balance between, on the one hand, the need to protect family litigants and the public generally from assessors who have not done their job properly and, on the other hand, the important goals of:

1. Recognizing the value of and need for these assessments services for separating parents and divorcing families and the Courts;

2. Recognizing, and maintaining, the integrity of the family court process and the need to minimize delays in that process wherever possible;

3. Limiting the influence on the court process of the launch of a complaint while the family law case is ongoing, unless it is clearly warranted; and,

4. Limiting the "chill factor" of complaints on the professionals who are willing to do this important work.

It is the Task Force's view, having carefully researched and considered the issue, that these two sets of goals – one college/regulatory body-focussed, and one court/family justice-focused – need not be seen as one against the other. Reform in this area need not be a zero-sum game. To the contrary, the Task Force believes that the implementation of the proposals set out in this paper would actually strengthen both sets of goals, and would resulting in improvements being realized by all the parties and interests affected by custody assessments: the parents and the children involved in these assessments; the family justice system; the regulatory colleges and the public they serve; and also the assessment professionals themselves, who take on this vital work.

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Appendix A

Professor Nick Bala, Queen’s University, Faculty of Law Ida Bianchi, Counsel, Family Policy and Programs Branch, MAG Brian Burke, Epstein Cole LLP Dr. Irwin S. Butkowsky, Psychologist and Acc. FM Linda Chodos, Social Worker and Acc. FM Senior Family Justice George Czutrin, Superior Court of Justice Justice Adriana Doyle, Superior Court of Justice Dr. Barbara Jo Fidler, Psychologist and Acc. FM Cheryl Goldhart, Goldhart & Associates Jason Goodman, Martha McCarthy & Company LLP Martha McCarthy, Martha McCarthy & Company LLP Tami Moscoe, Counsel, Office of the Chief Justice, Superior Court of Justice Justice Sheilagh O’Connell, Ontario Court of Justice Dr. Peter Sutton, Psychiatrist Jacqueline Vanbetlehem, Social Worker and Acc. FM

Appendix B

DISCUSSION PAPER FOR LEGAL REFORM

PROTECTING THE INTEGRITY OF FAMILY LAW LITIGATION:PREVENTING VEXATIOUS COMPLAINTS AGAINST ASSESSORS

December 2009

Nicholas Bala, L.S.M., B.A., LLB., LLM., Fay Brunning, B.A LLB, Barbara Chisholm,MSW, RSW, ACSW, Linda Chodos, MSW, RSW, Barbara Jo Fidler, Ph.D.,C.Psych.,AccEM, Robert Groves, Ph.D., C. Psych., Barbara Landau, Ph.D., LLM., Cert.F.M.,Arthur Leonoft, Ph.D., C. Psych., FIPA, David McLean, MD FRCP[C], Martha McCarthy,LLB, C.S. and Jane Murray, B.Sc., LLB

Executive Summary

The courts in Canada and the United States have evolved to rely, in part, onassessments by mental health professionals serving as experts to bring someobjectivity to the determination of the best interests of the child (Bala, 2004).Custody and access and child protection assessments (parenting capacityassessments) are conducted by psychologists, social workers and psychiatristswith broad child and family experience.1 Complaints to regulatory bodies byparents against practitioners who conduct custody/access and child protectionassessments are trequent and on the rise. Next to complaints relating to sexualmisconduct, College complaints against assessors addressing family lawdisputes occur more frequently than any other type of complaint (CPO Bulletin,2007; Kirkland & Kirkland, 2001). As a result, those who are willing and able toconduct these assessments are dwindling. This exodus of available and qualifiedassessors is a significant problem facing family law lawyers and the courts inOntario, and most importantly, children and their families who are left at risk.Legal costs increase, families endure stressfully long wait-times and childrensuffer while their parents remain in tense custodial limbo due to excessive delayscaused by a dearth in available assessors.

The family court oversees matters relating to family law disputes and ultimatedeterminations of parenting arrangements believed to be in a child’s bestinterests. We, along with others who support this proposal, maintain that underthe provisions of the Regulated Health Professional Act Procedural Code,2andthe Social Work and Social Service Work Act, 1998 (in the case of the OntarioCollege of Social Workers and Social Service Workers),3 Colleges need to haveclear legal criteria to apply before they launch any investigation into a complaintfiled by a parent against an assessor, and before the assessor has to expendenergy, resources and time to respond to such a complaint. This test is essential

1Practitioners who conduct custody/access assessments and child protection assessments arereferred to as “assessors’ throughout this paper.2 Schedule 2 to the Regulated Health Professionals Act, 5.0. 1991, c.1 8.

1998,0.31.

DISCUSSION PAPER irecting CusIJdyiA4 ss and Parenting CapacityAssessors

to minimize commonly occurring vexatious complaints which significantly impacton the court’s capacity to optimally utilize family assessments and retain theavailability of qualified assessors. The family law justice system is seriouslyundermined every time a vexatious complaint is made by a parent to the Collegeagainst an assessor without any gatekeeping by the court or Colleges. Equallyimportant, the health discipline complaint process is undermined and loseslegitimacy. This is a major social and legal problem that needs to be remedied.Three options for resolution of this problem are provided for consideration.

A. Underlyinc Issue

Divorce can have many negative4 consequences, including intense legaldisputes over the care and custody of children. Families of divorce face multiplestresses; adjustment can be seriously delayed, if not stymied, by prolongedlitigation over child care and control that can drag on for years. The Implicationsfor children are both immediate and long term. For example, studies confirm thatpeople raised in divorced families tend to marry less and divorce more(Walterstein & Lewis, 2005). Parental divorce is also a key variable in predictingreferrals of school age children for mental health treatment (Felner, Stolberg &Cowen, 1975). It is estimated that 20-25 percent of children raised in divorcedfamilies suffer emotional disturbance as adults as compared to the rate of 10percent for children raised in intact families (Hetherington & Kelly, 2002).

B. Custody and Access and Child Protection Assessments5

Assessments are principally ordered when clinical issues predominate and/or areused by parents and legal counsel to resolve disputes before they actually go tocourt. It has been estimated that assessors testify in less than 5 percent of casesthat are assessed (Austin & Jaffe, 1990). In reality, these assessments representan important tool for dispute resolution of custody and access conflicts betweenparents.

In determining the best interests of the child, the courts have benefited from theconsultation with skilled, neutral assessors, who are knowledgeable in family lawprinciples, child development, adult assessment and family systems theory.

‘Austin, G. W., & Jafte, P. 0. (1990). Follow-up study of parents in custody and access disputes,Canadian Psychology, 31, 72-79.

We refer to custody and access assessments throughout this proposal as custodyassessments. These may be ordered by the court pursuant to s. 30 of the Children’s Law ReformAct, RSO 1990, c. C.12 as amended or; s.54 of the Child and Family Services Act, RSO 1990, c.Cii as amended. Court ordered assessments may be made on consent of the parties orfollowing a contested motion. Assessments may also be done outside the court process,voluntarily and typically once the parties have obtained independent legal advice, clarifyingprocess and other terms using an assessment retainer contract. However many assessorsrequire a court order before proceeding, even when the assessment is on consent, in themistaken belief that this will offer the process some protection.

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DISCLSSION PAPER - Protecting Custody/Access ana Parenting CapacityAssessors

Many assessors work alone, bringing their professional training guidelines andexperience to address the questions posed by the family and the court. Otherassessors work in teams or family court clinics that harness the talents and skillsof different and multiple mental health professionals to assess complex familyproblems referred by the court. Assessors quickly learn that the parents referredfor custody/access and parenting capacity assessments are not regular patients.They are litigants whose principal aim is to win a legal dispute. Thus, the usualtherapeutic paradigm does not apply and the relationship between assessor andparent is specific to the time-limited assessment process. There is no patient-doctor/health professional relationship and no presumed right of completeconfidentiality. By way of the order or the consent formalized into a consentagreement, the assessor’s report and recommendations become part of the opencourt record and are accessible to an inquiring public if they so choose. Theassessor serves as a consultant to a judge. The assessor is not retained by oneparent, but rather by both parents and other parties. Ultimately, the client isactually the court, which oversees the process aimed at determining the bestinterests of children. In this regard, the court is the ultimate defender of the publicgood and the assessor is a health or social service professional who agrees toserve as the court’s expert.

In the court process, the assessor’s findings, expertise and testimony may bevigorously tested through cross-examination before the judge prior to finaldetermination of the issue. In the end, the court’s use of the assessor’s reportand evidence is discretionary.

In other words, any health professional willing to serve in this capacity must beprepared to contend with the rigors of litigation. Lawyers and judges accept theimportance of this evidence but they also expect the assessor to ultimately beable to defend his or her findings and recommendations in court. No one knowsat the time of appointment if there will be settlement or if the case will proceed totrial. Lawyers for both sides can cross-examine the assessor at trial. Moreover,in some cases the parties will seek second opinions, critiques from otherevaluators, and/or assistance from their own privately retained experts inpreparing for cross-examination. Hence, the assessor already assumes awillingness to undergo professional scrutiny when appointed, to ensure thereliability that the court might place on the report and the evidence of anassessor. A well prepared, experienced and expert assessor accepts thatpossible scrutiny. The assessor serves as expert to the court in respect to bothparties and their children. It is vital work which has proven its value across NorthAmerica.

C. ComIaints to Regulatory Colleaes

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

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DISCUSSION PAPER - Ptecting CustodyiAccess and Parenting CapacityAssessors

a professional sucker punch and has no correlation to the skill, experience andsavvy of the assessor. This jeopardy arises from disgruntled parents makingcomplaints to the regulatory bodies that govern the health professionals. If aparent has been described in an assessment report in a way that the parentconsiders unfavourable and wants to discredit or even harass the assessor, thatparent is able to exploit the health discipline complaint process; psychologistsand psychiatrists, under the Regulations Health Professions Act 19916 (RHPA)and social workers under different legislation. Such a complaint may be madeafter the assessment report is prepared and before a trial occurs, or after a trial inwhich the parent receives an unfavourable result. Rather than for in addition to)challenging the report in the usual family litigation process (or appealing a courtdecision), a parent may file a complaint to the assessor’s College.

This is a process that is cost-free to the complainant involved litigation, who willbe treated the same as any other therapeutic client or patient. Thesecomplainants are given full rights to pursue the assessor through the College,without any recognition or protection arising from the fact the assessor was eitherappointed by the court or consented to by both parties, and open to full scrutinyunder that process.

In the case of the, College of Psychology of Ontario (CPO), approximately one-third of all annual complaints arise out of custody and access and parentingcapacity assessments (CPO Bulletin, 2007). Complaining to a regulatory body isan increasingly common tactic for complainant parents. A survey of 61 state andprovincial licensing boards over a 10-year period reported that only 1 percent ofcomplaints resulted in findings of ‘formal fault” against the assessor (Kirkland &Kirkland, 2001).

Of course, there may be circumstances where assessors might be unpreparedand inexperienced and both parents in the dispute file a complaint. It might be,for example, a report unfinished after a lengthy period, an assessor who fails tosee all parties or who clearly lacks competence or essential knowledge, or apractitioner assuming a dual role. In most cases, however, these complaints arefiled as part of a litigation strategy and/or to transfer the litigation activity toattacking the assessor. Given that personality disorders or characteristics ofthese disorders occur in about 60% of the high conflict separating or divorcingparents (Johnston & Campbell, 1988), the complainant may have a personalitydisorder, and this has perhaps been so identified by the assessor.

The Colleges take the position they must investigate all complaints, and treat altcomplainants equally. Colleges may take the greater part of a year to gather theinformation, schedule a meeting of the ICRC (Complaints Committee), evaluatethe grievance (which has likely blossomed into several letters and responses),and prepare a decision for the member and the complainant. The complaints

6 Supra note 1.

DISCU3ION PAPER - P tecting Custody/Access and Parenting CapacityAssessc s

exact a serious toll on the assessor who may be functioning as a solopractitioner, carrying the emotional and professional burden alone. There may beappeals, and the process can drag on for years. Major college resources are alsoconsumed by these complaints.

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 financedby the health professional or their insurer. Physicians have access to lawyersthrough the Canadian Medical Protective Association (CMPA). Mostpsychologists and social workers have the equivalent in legal services availablethrough group liability insurance, after a deductible is paid. There is noinformation available as to the percentage of assessors who retain legal counselto assist them through the complaint investigation. It is generally acknowledged,however, that any complaint can have serious professional and personalconsequences, which include loss of reputation, a tarnished record and personalhumiliation even if the complaint is not referred for further investigation and theprofessional is vindicated. Any future dealings with the College will lead to repeatairing of past complaints to the complaint panels, even if the earlier complaintswere never referred to discipline for adjudication. As a result, many assessorsretain counsel, often at their own expense, to provide representation andassistance during the complaint process.

Many assessors refuse to act as assessors after they have been subjected to thedemeaning and expensive process of dealing with vexatious complaints. Themost concerning reality is that the family justice system has to contend with adepleted 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 specificgroup in return for regulation in the public interest under defined ethical andprofessional responsibilities. The Colleges have the clear mandate to protect thepublic from their members who may be unscrupulous, incompetent, unethical orirresponsible in carrying out their functions. In this dragnet of regulation, the factthat the complaint pertains to a health professional who conducted assessmentsin a polarized legal context has been treated as irrelevant or extraneous by theColleges under their legal mandate. The hegemony of regulation does not allowfor any differentiation between complaints from members of the public who wereprovided health or equivalent services as clients or patients, and complaints fromparents struggling with their ex-partners over the custody or access of theirchildren.

Furthermore, the current College procedure forces the assessor to respond tothe complainant, even though this may have a direct impact on an ongoing legalcustody process. The complainant may benefit from having such a responsefrom the assessor, to which the other parent has no concurrent access. It onedisgruntled parent makes a complaint to the College, the other parent has nostanding in the complaint process. It the custody or access issue is still before

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DISCUSSION PAPER - F te:tir’7 Custod, Acces and Parenting CapacityAssessors

the family courts when the complaint is received, the College proceeding caninterfere with the court’s ability to determine the disputed issues and/or anotherassessor must be involved.7

There is a contradiction between the court and regulatory body where both attestto represent the public good. The assessor is caught between discordant worlds.The family court may be fully satisfied with the contribution of the assessor whilethe College is looking for possible misconduct at the behest of a complainant. Itis a formula for dystunction and distorts the important role intended to be playedby health discipline regulatory bodies.

When a disgruntled parent commences civil litigation against a custody assessor,the Superior Courts in both Alberta and Ontario have extended immunity againstcivil liability to the custody assessor. Recognizing the special status of theassessor as an expert witness in the family law custody proceedings, judgeshave granted protection to assessors from civil liability, including on asummary/preliminary motion. That judicial recognition of special status incustody disputes and judicial protection against abuse of process bydisgruntled parents, have not been similarly adopted by the Collegesin the complaint process..8

No wonder qualified health professionals are increasingly reluctant to do this veryimportant work, highly valued by the courts and family lawyers. They are pushedout of the field by complainants and zealous regulators who believe they mustdemonstrate that they are carefully scrutinizing the work of assessors under theirbroad powers as “protectors of the public.” From the assessor’s perspective, theprofessional, financial and personal costs are simply too great. Consequently,fewer qualified assessors are available, the delay to find an assessor islengthened and the costs increase, including the resulting human cost to thechildren, parents and other family members 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 thewelfare of children. Assessments are complex and multidimensional; they arise ina particular context and serve a specific legal function. What the Colleges or theRHPA ignore and what is essential, in our view, is an understanding that thecourt itself is the foremost legal forum in which the public’s welfare is beingserved in custody disputes. In this regard, the family court process alreadyprovides very significant scrutiny and oversight. The court can disqualify anassessor, and the lawyers or parties themselves can assess the work and cross-examine to require the assessor to defend his or her evidence and

Macintosh v. Macintosh (21 November 2007), Ottawa 54979197A (Ont. Sup. Ct.).See Boychyn v. Abbey, 2001 CarswellOnt 4112, (30 July 2001), Barrie 00-Bi 672 fOnt.

Sup. Ct.); and Smith (Next Friend of) v. Kneler (2001), 288 A.R. 144, 2001 ABQB 291(Alta. Q.B.).

DlS.USSlON PAPER - Protecting Custody/Access and Parenting CapacityAssessors

recommendations if the need arises. Absent a consensus of both parties that theassessor was unprofessional or incompetent (for example due to delay or otherincompetence), or a compJaint from the judge or court, the College should not beinvolved in complaints brought by family law litigants. The College system doesnot have any of the legal checks and balances or accountability that thecomplainant faces in the family court system.

D. Possible Legal Reforms

We beheve that there needs to be recognition in the legislation that complaintsagainst assessors about custody/access and child protection assessments

should be handled differently than complaints arising out of direct therapeutic orother services provided by a health professional to a patient.

Other jurisdictions in North America have recognized the seriousness of thisproblem through statutory change. Colorado appears to be the only state orprovince where such complaints against mental health professionals in courtordered assessments are actually prohibited from being the subject of discipline.The Colorado Mental Health Practice Act (1998) states:

“The provisions of this article shall not apply to mental health professionalsacting within the scope of a court appointment to undertake custodialevaluations in domestic relations cases in the courts of this state or tomental health professionals acting within the scope of a court appointmentto undertake domestic and child abuse evaluations for purposes of legalproceedings in the courts of this state (2-43-222, section 7).”

This approach is clearly intended to promote the concerns of the family justicesystem. However, we believe that the Colorado model does not strike the rightbalance between the needs for protection of all concerned.

We have identified three possible remedies, and perhaps some combinationthereof, for consideration with the hope of protecting children and families andstemming the exodus of health professionals from performing family courtassessments. These possible remedies are as follows:

1. Written Consent of Custodial Parent(s) to the College

Ontario could change the RHPA and the Social Work and Social Service WorkAct, 1998 to requite the signed consent of both patents as a precondition to theCollege proceeding with a complaint. Ontario could adopt the model of theCalifornia Board of Psychology which states:

“Complaints concerning child custody issues against a psychologistmust include, not only a release/consent signed by the complaining party,

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DISCUSSiON PAPER - V eurig C. stcdy;Access and Parenting CapacityAssessors

but a release/consent for each child involved signed by the adult with legalcustody.

if the complainant is the parent who does Lhave legal custody, the Collegemust obtain the prior written consent of the custodial parent as well to proceedwith a complaint. in the case where both parents share legal custody or wherecustody has yet to be determined, the complaint would still need to be supportedby both patents as there is a presumption of shared care and control. This modelrecognizes that the complainant is usually the parent who is dissatisfied with thecurrent custody and access arrangement, or is unhappy with changes to custodyand access flowing from the assessment. This approach should also address thefact that in the present complaint system, the non-complainant parent neverreceives communications from the College, may not be made aware of thecomplaint, has no standing with the College, and has no right to prohibit thepersonal health information of the child/children from being given to thecomplainant through the complaint system. Furthermore, if the custody order ofthe court is under appeal, the non-complainant parent should be able to preventthis collateral attack and/or to seek a role in the process.

2. Gatekeepina Test and Right of ADDeal

In the case of child custody or access and child protection matters, the Collegeshould be required to assess the complaint against a clear legal test definingwhat is vexatious, frivolous or an abuse of the family court process. Perhapsthere should be a presumption of abuse of process when a complainant files acomplaint against an assessor. Sometimes these complaints arise during theassessment process, before the trial is even conducted. The onus should beplaced on the complainant to prove the complaint is not a litigation tactic orotherwise vexatious. This gatekeeping function should occur prior to investigationof the complaint itself by the ICRC, meaning before the member has been forcedto file his/her response.

In the case where the College considers the complaint not to be vexatious thenthe assessor should have the right of appeal on the preliminary issue ofjurisdiction to the Ontario Superior Court of Justice, being a court that alsoadministers the custody laws of the province. Likewise, if the College declines toprocess the complaint, the complainant should have a right of appeal to the samecourt. The College should be the respondent on the appeal in either case. Thepossibility of costs being awarded should be determined in advance.

The advantage of these remedies is to preserve the role of the Colleges in theirregulatory function over provisions of health services to the public, while givingthe Colleges the necessary legal authority to apply clear tests in custody andaccess and child protection assessments. It protects the assessor by assumingthat vexatious complaints will be identified and not processed by the College,with supervision by the Ontario Superior Court of Justice.

DISCUSSION PAPER - Protecting Custody/Access and Parenting CapacityAssessors

3. Judicial Gatekeepini Resøonsibility

Arizona is one jurisdiction that has recently recognized that complaints toprofessional colleges will not be allowed, regardless of the objectivity, balance oraccuracy of the assessments. Indeed, as has been outlined above, complaintsarise from the litigious, emotion-laden context of court-related assessmentsoccur. The rationale for judicial screening as a remedy is that the custodyassessment is essentially an extension of the court process. In this regard, thecourt has assumed the obligation to protect the integrity of its procedures and tosafeguard the mental health professional who has agreed to serve in thisexacting role from vexatious complaints which are usually aimed at subvertingthe legal process.

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

“The board shall not consider a complaint against a judicially appointedpsychologist arising out of a court ordered evaluation, treatment orpsychoeducation of a person to present a charge of unprofessionalconduct unless the court ordering the evaluation, treatment orpsychoeducation has found a substantial basis to refer the complaint forconsideration by the board.”

This solution places the gatekeeper function with the family court in respect tothe initial determination of whether there is to be any complaint. One majoradvantage of this approach is that judges are already apprised of both partiesand their arguments/positions, as well as the context and likely motivation formaking a complaint. The judge is charged with an appreciation of the bestinterests of the child, whereas a regulatory College has no prior orcomprehensive knowledge or special insight into these complex family lawmatters. It also ensures that complaints that are forwarded to the Colleges areactually worthy of regulatory intervention and are aimed at ensuring protection ofprofessional standards and conduct. A possible disadvantage is that it may beperceived as limiting College jurisdiction with regard to the professional activitiesof its members.

E. Conclusion

Having qualified assessors prepare reports for use in the courts plays animportant role in resolving family law conflicts, hopefully without a trial. They areessential for minimizing risk and promoting the interests of children in highconflict family disputes. Providing due process with one hand (the court) andallowing unchecked abuse of process with the other hand (unfettered complaintsto the regulatory body) is poor social policy. It exacts a huge individual andsocietal cost.

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DISCUSSION PAPER - Protec;ting Custody/Acc..ess and Parenting CapacityAssessors

Qualified assessors are increasingly unwilling to serve as assessors due to thehigh risk of a College complaint. The family courts have come a long way fromthe rip and tear litigation of the past. Custody/access and child protectionassessments expose the strengths and weaknesses of the family system, thespecific needs and adjustment of the children, and propose a model for patentingarrangements (custody and access) aimed to promote healthy long-termadjustment and well-being. Assessments provide an objectivity that is otherwisemissing when The litigation process occurs between parents or other partiestrying to win in court. It qualified assessors are not available, children are likely tosuffer.

In the end, we all aim to serve and protect the public: assessors, judges, lawyersand the Colleges. Our attempted solutions often become the problem. We needto find a way to prevent working at cross-purposes, to identify and stop thevexatious complaints, and to ensure that children and their families are the truebeneficiaries of our combined talents and expertise.

F. Your Assistance is Needed

We need to confirm the existence of the problem and its impact. We would alsolike you to consider the possible solutions listed above or to propose others. Weneed the stakeholders to participate. To provide your feedback, including toconfirm/question the existence of the problem and your reasoned assessment ofthe possible range of solutions, please email your name, occupation/professionand comments to the following email address designated for this purpose:custodyassessorreform@sgmlaw.com as soon as possible. Your name and allthe information that you provide will be stored, collected and used by members ofthe committee (authors of this discussion paper) to facilitate possible legal reformas contemplated in the discussion paper. You may be contacted in the future bythe committee via the email address information that you provide. This committeemay 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 theProvincial Government, you will be contacted to obtain your permission todisclose that you are the author. Please do not communicate any personal healthinformation nor identity of complainants to this committee, unless you have priorwritten consent to do so.

Thank you for your assistance.

Bibliography:

Bala, N. (2004). Assessments for postseparation parenting disputes in Canada.Family Court Review, 42 (3), 465-510.

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DISCUSSiON PAPER - Protecting Custody/Access and Parenting CapacityAssessors

Felner, R. D., Stolberg, A. L., & Cowen, E. L. (1975). Crisis events and schoolmental heaLth referral patterns of young children. Journal of Consulting andClinical Psychology, 43, 305-310.

Hetherington, E. M., & Kelly, J. (2002). For better or for worse: Divorcereconsidered. New York: Norton.

Johnston, J.R. & Campbell, L.E. (1988). Impasses of divorce: The dynamics andresolution of family confl/cL New York: The Free Press.

Kirkland, K., & Kirkland, K.L. (2001) Frequency of child custody evaluationcomplaints and related disciplinary action: A survey of the State and ProvincialPsychology Boards. Professional Psychology: Research and Practice, 32, 171-174.

Wallerstein, J.S. & Lewis, M. (2004). The Unexpected Legacy of Divorce: Reportof a 25-Year Study. Psychoanalytic Psychology, 21:353-370.

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Appendix C

BOARD OF PSYCHOLOGIST EXAMINERS

New Mexico Regulation and Liconsing DepartmentBOARDS AND COMMISSIONS DIV1:ION

P.O Box 25101 * e’du 5703(505) 476-422 - ‘ax (505) 470-4545 -

CHILD CUSTODY EVALUATION PROCEEDINGS

COMPLAINT FORM

This form shalt be completed ONLY for complaints regarding child custody evaluations.

Please be advised that the Board of Psychologist Eamincr’s jurisdiction is limited. They

can only investigate complaints against psychologists licensed by (he Board and cannot

obtain refunds of money paid to licensees nor necessarily obtain the outcome you desire.

The Board can only impose disciplinary measures against a licensee found to have violated

the Professional Psychologist Act or Rules adopted by the Board.

This Complaint Form shall be completed in its entirety. The form may be typed or writtenlegibly. Please attach additional pages if necessary for additional information, explanation.and/or details and refer to the section(s) you are explaining.

1. General information:

Complainant’s Name:

__________________________________________________________

Mailing Address:

City:

___________________________

State:

____________

Zip:

_____________

Telephone Number:

___________________________________________________

Email Address:

Custody Evaluator’s Name:

__________________________________________________

Mailing Address:

City: _State: Zip:

Telephone Number:

______________________________________________________

Email Address:

Does this complaint involve a child custody evaluation? YES []No(ifyour answer is NO, please stop and contact the Board Administrator regarding the proper form touse.)

Was the evaluation Court ordered? LJYES LINO

2. The Board will entertain complaints pertaining to a custody evaluation on a case by

case basis. While the case is in progress, you have legal options other than a complaint

to the Board to deal with your concerns.

Have the custody and time-sharing issues in this case been resolved by the District Court?

DYES LINO

If your thiswer is NO and you decide you woutd like to continue with filing thiscomplaint, please explain the exceptional circumstances that require the Board’sattention prior to completion of the custody case. (Please use additional sheets toexplain further.)

3. The Bt)ard’s preference is to begin investigations of board complaints only when

other avenues of resolution have been reasonably exhausted. You have optionsother than a complaint to the Board when your concerns regard therecommendations.

a. Is your complaint based on a disagreement with the psychologist’s recommendations?

LI YES LI NO

b. Does your complaint involve the procedures used in your case?DYES LINO

c. Does your complaint involve fees or other financial matters?DYES LINO

d. Does your complaint involve the role the psychologist played in your case?DYES LINO

e. Have you informed your attorney that you are dissatisfied with the recommendations?DYES LIN0

f. If you do not have an attorney, please indicate in Section 6 how you have tried toaddress your dissatisfaction with the recommendations.

LI YES LI NO

g. Did you file objections to the recommendations? LI YES LI NO

h. Have you asked for a second opinion? LI YES LI NO

i. Has the Court ordered a second opinion? LI YES LI NO

j. If a second opinion has been ordered, has that evaluation been concluded?DYES LIN0

Pge 2oE3

4. Ethical Concerns and Procedures

Please refer to the latest edition of the American Psychological Association’s guidelines forchild custody evaluations when answering the following questions.

a. Did the Psychologist obtain your consent before beginning the evaluations?Refer to Guideline 111-9. YES NO

b. Did the Psychologist explain the limits of confidentiality and under what circumstancesthe information could be disclosed? Refer to Guideline 111-10.

LI YES LI NO

Psychologists use multiple methods of data gathering, including, but not limited to, some ofthe following procedures/guidelines. Please check the appropriate box if theseprocedures w’ere done.

c. Did the psychologist use a variety of sources in order to obtain information? Refer toGuideline Ill-il.

i. Both parents were interviewed LI YES LI NOII. The Child(ren) were observed with the parents LI YES LI NOiii. Step-parents were interviewed LI YES LI NOiv. Collateral sources were contacted (teachers, therapists, etc.)

DYES LIN0

d. Did the psychologist give an opinion about a person not interviewed or evaluated?Refer to Guideline ffl-13. LI YES LI NO

e. Did the psychologist explain fees and payment requirements prior to the evaluation?DYES DN0

f. Did the psychologist serve in multiple roles? For example, did the psychologist serve as atherapist or mediator and then as an evaluator? LI YES LI NO

5. Are there other areas of concern not covered or considered in the previousquestions? (Please use additional sheets to explain further.)

DYES DN0

Pagc 3 of3

State of Arizona Board of Psychologist Examiners

Instructions

1400 West Washington, Room 240Phoenix, Arizona 85007

Phone: (602) 5428l61

w.scliboard.a

CLAIM AGAINST A PSYCHOLOGISTWHO PROVIDED COURT ORDERED SERVICES*

This form is intended for use by individuals submitting a claim of unprofessional conduct against a psychologist whoperformed services ordered by the court. Please complete the form, attach your supporting documentation, as well asdocuments requested on pages 2 and 3 of this form, and return all materials to the Arizona Board of PsychologistExaminers office at the address listed above.

Process

Pursuant to A.R.S. §32-2081(C), the claim will be independently reviewed by three members of the Board (‘Reviewers”),including one public member. The Board office may contact you with follow up questions or to request additionaldocumentation. Each Reviewer wilt review the claim and will independently make a recommendation to the Board’sExecutive Director regarding whether there is merit to open a complaint. If the three Reviewers independentlyrecommend not opening a complaint, a complaint will not be opened. If, however, one or more Reviewer(s) recommendopening a complaint, a complaint will be opened and an investigation will follow. You wilt be notified of the outcome of thereview. The psychologist will be notified of the claim pursuant to A.R.S. §32-2081(E).

Please tvc or print In ink and answer all questions. Return an oriqinal and one Copy of all documents submitted.

Psychologist Information:

Your Information:

Name

Address Contact Phone ( )Where you wish to be contacted during business hours

City State Zip Code

Business Name Business Phone

Business Address

City State Zip Code

Name

*Note. Pursuant to A.R.S. §32-2081(8) complaints filed by individuals charged with offenses under Title 13, Chapter 14, mustfirst be reviewed by the Court. Pursuant to ARS. §31-261 an inmate must exhaust internal grievance proceduresestablished by the Arizona Department of Corrections before filing a complaint with the Arizona Board of PsychologistExaminers.

Fax: (602) 5428279

Lymnnechapman@yboadpv

Caim F,rm and Irmtructiolls (11/2015) -1-

Questions (Please print)

1. Please provide your court case number

2. Please name the opposing party In your court case.

__________________________________________

What is your relationship to the opposing party?_____________________________________________

3. _Yes __No Did the psychologist perform services ordered by the court?

If yes, please provide a cony of the court order that orders the services tobe provided.

If yes, please identify the services nrovided, such as custody evaluation,parenting coordination, therapeutic intervention, etc.

4. _Yes __No Did the psychologist have documents that required your signature andexplained fees for the service provided, the nature of the serviceprovided, the psychologist’s duty to report abuse or harm, and otherinformation? (This may be called “Informed Consent,” “ServiceAgreement,” or something else)

If yes, please provide a copy of the documents.

5. _Yes __No a. DId the psychologist issue reports, evaluations, recommendations, orother documents as a result of the services provided to you?

.Yes __No b. If yes, did you receive a copy? If yes, please provide a copy of anyreports, evaluations, recommendations, or other documents issued bythe psychologist.

_Yes _No c. If you did not receive a copy, did you request a copy?

6. — Yes ___No Did you communicate with the psychologist in writing, such as email,text, letters, etc?

If yes, please provide a copy of all written communication between thepsychologist and you.

7. — Yes — No Has the psychologist completed hislher work on this case?

8. Over what period of time were services provided by the psychologist?

Start date

_____________________

End Date

_____________________

9. Yes No Has the Court tendered a final decision in this case?

Ca’m Form and Instructions (11/2015) -2-

10. Please p.Lovide the Judge’s final order(s), if issued, including all of the following that apply:

Custody

Visitation

Parental Fitness

— Therapy

Other (please identify)

11. ,Yes _No Have you flied a complaint(s) against this psychologist with the Court?

If yes, please provide a copy of the complaint(s) and any decision(s)rendered, (If a decision has not been yet been rendered, please notify theBoard Office of the final outcome when issued.)

12. _Yes No Have you filed a lawsuit(s) against this psychologist?

If yes, in what court was the lawsuit(s) filed?

If yes, on what date was the lawsuit filed?

Please provide a copy of the Complaint filed in your lawsuit.

_Yes __No Is the lawsuit pending?

Yes No Did the Judge issue a final ruling In the lawsuit?

if yes, please provide a copy of the final decision.

13._Yes No To your knowledge, has anyone else involved In your case filed aComplaint(s) or lawsuit(s) against this psychologist?

If yes, please identify the agency, organization, or court with which it wasfiled.

14. SUMMARY OF CLAIM:

Include specific details (who, what, when, where, how, why). Include the type of service provided and date(s) ofservice. Attach a copy of the documents identified in the Instructions section of this Claim Form. Please useextra sheets of paper, if needed. Please print clearly as the review of your claim will be delayed if we cannotread your writing.

CIm form and Instructions (11/2015) 3 —

C) 11 0 C UI 0 S U) C 01

3s.

(Attach aUditiona pages if necessary.)

I am the person who prepared this Claim. The information given herein is known to me to be the truth, or is true to the bestof my knowledge and belief, without any reservations.

Signature of Person Filing the Claim DateClaim Form and Inslrjction3 (11/2015) 5 —

Appendix I)

Compbint FormSocial Service Workers Toronto ON M4W lEG

To make a complaint, please complete this form and mail, fax or email it to the College at the address provided at the end of the form.

If you would like to talk to someone about the conduct of a social worker or social service worker or about the complaints process beforelodging a formal complaint, please contact the Complaints and Discipline Department staff at 41 6-972-9882 or 1 -877-828-9380, ext. 210 or 223.

What the College cannot do:c Address complaints about individuals who were never registered with the Ontario College of Social Workers and Social Service Workers: Address complaints about institutions or agenciestt Award money or damagesi Consider anonymously placed complaintsz Process complaints without notifying the Member about the complaintii Reconsider or instruct the reconsideration of a custody and access assessment or influence a matter that is, or has been, before the courts

A. PERSON FlUNG TUE COMPLAINT

First Name: Cast Name:

Address:

City: Province: Postal Code:

Phone: Email:

Anonymous complaints cannot be processed

If you are not the client of the Member to whom the complaint relates, please describe your relationship to the client and provide details about theclient in Section B.

B. CLIENT INFORMATION (if different from person filing the complaint)

First Name: Last Name:

Address:

City: Province: Postal Code:

Phone: Email:

Date of Birth:

If you are filing a complaint on behalf of another individual, the College may require the individual to provide consent to access personal information related to the complaint.

TEL 416-972-9eBZ I TOLl. FREE: 1-87?-82a-9380 I FAX: 416-972-1512 I www.ocswssw.org JULy O5

cOiUPT FOOM

C. MEMBER AGAINST WHOM THE COMPLAINT IS BEING MADE

Li Social Worker Li Social Service Worker

First Name: Cast Name:

If the name of the Member is unknown, please provide sufficient details so that by reasonable inquiry the College can determine the name of the

Member.

Complaints against Members who cannot be identified or individuals who are not Members cannot be processed.

Where did you see this Member? (check one)

LI Hospital LI Agency LI Centre LI Private Practice Li School or University

LI Other (please specify):

Date(s) you saw this Member:

If you are filing a complaint on behalf of another individual, “you” relates to the person you are filing the complaint on behalf of.

D. PLACE WHERE SERVICES WERE RECEIVED (Hospital; Centre; Agency; Private Practice)

Facility Name:

Address:

City: Province: Postal Code:

Phone: Email! Website:

E. DETAILS OF COMPLAINT

STEP #1: Please provide the following details relevant to the complaint:

When did the incident(s) occur? Date: Time:

Where did the incident(s) occur?

STEP #2: Please provide a general description of the circumstances from which your complaint arises:

TEl.: 415-972-98132 TOLL FREE, 1-1377-828-9335 FAX. 410-972-1512 I www.cswssw.orq

C()MPLIUNT FORM

If you requite additional space you may attach a separate sheet.

STEP #3: Based on the information you provided in steps 1 and 2, please list the concerns about the Member’s conduct or actions that you wish theCollege to investigate in the numbered spaces below:***NOTE: Please ensure that all of your concerns about the Member’s conduct or actions are included below. Any concerns notincluded on this Form may result in the College being unable to process those concerns.

Concern #1:

Why are you concerned about this?

Concern #2:

Why are you concerned about this?

Concern #3:

Why are you concerned about this?

If there are more than three areas of concern, please attach on a separate sheet.

TEl.: 416-912101321 TOLL FREE: 1-1311-828-93001 F4X. 416-9)2-1512 www ocswsw.orq

COMPLAINT FORM

You may provide to the College materials or documents that are relevant to the complaint. However, you indicate how eachdocument relates to your complaint.

Have you reported the incident to any other body or authority (i.e. police; Members employer)? Q Yes U NoIf yes, when was the incident reported and to whom?

What was the outcome of your report?

Have you taken any steps to resolve this matter? If so, what?

E ACKNOWLEDGEMENT AND SIGNATURE

I have read and I understand the following:I understand that the Ontario College of Social Wotkers and Social Service Workers (OCSWSSW) may obtain my relevant personal information(including the clinical notes of the Member) as part of the investigation. The College may share some or all of the information and documents that itreceives from me and other parties with the Membet complained about.

The information on this form is collected under the authority of the Social Work and Social Service Work Act, 1998. The intormation provided will beused to process my complaint.

I understand that if this complaint is referred to the Discipline Committee, personal information and other information collected during theinvestigation must be disclosed to the Member and may be considered during a hearing of the Discipline Committee, which is a public forum.

Print Name: Signature: Date:

Any questions regarding the collection or use of this information should be directed to the Complaints and Discipline Department at the College.

Please mail, fax or email the signed Complaint Form and any related documents to:

Coordinator, Complaints and DisciplineOntario College of Social Workers and Social Service Workers250 Bloor Street East, Suite 1000Toronto, ON M4W1E6Fax: 416-972-1512Email: Investigations©ocswssw.org

All correspondence from us will be sent by regular mail to preserve confidentiality.

TEL 416 972 9682 I TOLL FREE 1 877 828 93801 FAX 416 9?2 15121 www ocswssw org J LV 1j

COMPLAINT FORM

Checklist

Have you provided the tollowiuçj?Full name(s) and address(es) of the social worker(s) or social service worker(s) involved

1 Complete description of the complaintYour name and a number where you can be reached during the day

f. Signed and dated acknowledgement section

TEL: 416-972-0882 TOLL FREE: 1-077-828-93801 FAX: 418-012-1512 I www.ocswssw.org JULV 1U1i