Child Custody and Access (DA); Parentage, Guardianship and Contact (FLA) - Custody and Access Reports

The FLA and the rules of the Supreme Court and Provincial Court provide for the evidence of expert witnesses in family matters to assist the court.  Previously, the reports were called “Section 15 Reports” when referring to the FRA.  Section 211 of the FLA provides the court with the power to appoint a person to assess one or more of the needs of a child in relation to a family law dispute, the views of a child in relation to a family law dispute and the ability and willingness of a party to a family law dispute to meet the needs of the child.  The person appointed by the court must be a family justice counselor, a social worker, or other person approved by the court.  The other persons would usually be psychologists or registered clinical counselors.  The court also has the power to allocate the fees relating to an assessment between the parties. The purpose of the Report is to assist the court in its determination of what is in the best interests of the child, particularly where the positions of the parties and their views of the evidence are sharply divergent.  Reports prepared by psychologists will cost at least $5,000.00 and often as high as $10,000.00.

It is critical that the expert be neutral and unbiased. Where the parties cannot agree that a s. 211 report should be prepared, either party may apply to the court.  The threshold for ordering a s. 15 Report was very low, particularly where the emotional wellbeing of the children is in issue. It can be expected that the same threshold will continue under the FLA.  Experts preparing custody and access reports have special standing as the court’s own expert (rather than the expert of a party) and are expected to be non-partisan.

For children older than five, a less expensive route may be to request a “views of the child” report prepared by a psychologist or even by a layperson, such as a lawyer with special training in interviewing children. This can be a simple way to give the court access to the child’s views, without having to involve the child in a protracted and stressful process. Views of the child reports prepared by psychologists will offer expert evidence about the strength and consistency of the child’s views, while reports prepared by laypersons will simply repeat the child’s views without offering opinion or commentary. In certain situations, judges may interview older children, with or without counsel being present, but a court official will at all times be present during such sessions (see LEG v. AG, 2002 BCSC 1455 and BJG v. DLG, 2010 YKSC 44).

Community Discussion

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I am familiar with the custody and access reports (and was successful counsel in the LEG case) in a challenge against a jointly retained psychologist who had failed to meet the criteria set out by the College of Psychologists - which counsel should be familar with in determining who might be the best person to undertake this type of report.  I stress to the client the cost, but also the invasiveness of the process, the length of time involved and the unpredictablity of the recommendations.  Many clients feel it will be a "slam dunk" in their favour, which has turned out in some cases not to be the outcome.

"Views of the Child" reports are useful but one must be alert to the possibility that the children have been unduly influenced, particular when there has been incidents of family violence and/or a child becoming an ally of one or another parent.

Where one party does not like the results of the report, he or she may seek to submit a "critique" of the original report by a second expert.  This second report focuses on the alleged errors and omissions made by the original assessor.  It is not a proper custody and access report based on all the required information and interviews, and is usually one sided, in favour of the party who obtained it.  The admissibility of such a "critique can and often should be challenged.      

I have found in my family cases that the most difficult custody and access cases to litigate, are those cases where children have been intentionally alienated or coached either by a parent and/or grandparents. In these cases views of the child reports cannot be used. However, even a psychologist working on a  detailed "custody and access" report will find difficulties in ascertaining whether alienation/coaching has ocurred and to what extent the children have been affected. One must warn the client prior to undergoing such an expensive report, that the report could go "either way" and is never a "slam dunk". 

One way to get around costly 211 reports is to get an order simply that a 211 report will be prepared by a Family Justice Counsellor; and the order can then be forwarded to the centralized FJC reporting writing service in Vancouver.  Such reports are free, but can take upwards of 8 months to prepare, particularly in remote areas.

After shopping around, I paid $15,000 for a psychologist report in August 2019.  The prices are rising.

I agree with Judah about the Family Justice Counsellors.  The psychologist report adds some insight, but the cost is significant.