“Both sides now”: The role of the law in the AFCC Guidelines for Parenting Plan Evaluations in Family Law Cases

• Published date: 01 January 2023
• Author: Brian J. Burke
• Date: 01 January 2023
• DOI: http://doi.org/10.1111/fcre.12692

COMMENTARY

“Both sides now”: The role of the law in the AFCC

Guidelines for Parenting Plan Evaluations in

Family Law Cases

Brian J. Burke

Burke and Co., Family Law Litigation and Advocacy Group, Toronto, Ontario, Canada

Correspondence

Brian J. Burke, Burke and Co., Family Law Litigation and Advocacy Group, 73 Simcoe Street, Suite 303, Toronto, Ontario,

M5J 1W9, Canada.

Email: brian@burkeandcofamilylaw.com

INTRODUCTION

Even a relatively cursory review of the AFCC Guidelines for Parenting Plan Evaluations i n Family Law Cases

1

will

reveal to the reader a robust emphasis on the legal dimensions of parenting plan evaluation work, standing in

relatively high relief to what was set out in the (excellent) AFCC Model Standards of Practice for Child Custody

Evaluation.

2

This increased focus on legal elements found in the new document can, at least in the view of the

present author, be seen as being both intentional and purposive. Putting the matter as squarely and simply as

possible, this new emphasis can be seen as serving to remind the reader of the new Guidelines—and, indeed, to

remind her or him frequently—of the signal importance of the legal arena and its principles, rules, and systems

vis-à-vis parenting plan evaluation work.

The principal purpose of this short paper is to set forth a defense—an apologia, of sorts—of this new focus-

sing in the Guidelines on various legal aspects. It begins by reminding the reader how, as a general and overarch-

ing matter, evaluations take place within a specific realm, being the legal realm. It then considers some specifics

of how various legal aspects are woven into parenting plan evaluations, including with reference to key sec-

tions of the new Guidelines. Next, it provides a justification as to why testing the work of evaluators through

cross-examination is so necessary and integral to the process, properly understood. Finally, it argues—including

by reference to specific provisions in the Guidelines—that it is incumbent upon attorneys, evaluators, and judges

in family law cases to engage with each other in a cooperative manner and in a spirit of goodwill in matters of

process in relation to the evaluation.

One word of caution: given page limits, this paper should not be taken as an attempt at a précis of “all the legal

parts”found in the Guidelines. Not only is that not its goal, but the legal dimensions found in the new Guidelines are

also sufficiently extensive that even a relatively expansive discussion of those dimensions would necessitate a much

longer paper; to have any hope of treating them fully and properly would require a book.

1

The “Guidelines”.

2

The “Model Standards”.

DOI: 10.1111/fcre.12692

© 2022 Association of Family and Conciliation Courts.

Family Court Rev. 2023;61:47–53. wileyonlinelibrary.com/journal/fcre 47