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).