The Vancouver child custody and child parenting time and access lawyers of MacLean Family Law whose offices are located in Surrey, Vancouver, Fort St. John, and Kelowna, would like to discuss what can happen after a s. 15 custody and access report is completed and given to both parties. S. 15 reports are reports done under s. 15 of the Family Relations Act to provide a parenting capacity assessment. They are done by independent experts who inform the court of their recommendations concerning access and custody. They are not finders of fact, and they are not deciders of law. Their purpose is to assist the court, not make up its mind for it. However, in most cases, s. 15 reports carry great weight and their recommendations are frequently followed at trial.
It can take family cases a long time to get to trial—usually about a year, sometimes longer. So the question is, what happens in the interim with a s. 15 report? M.D.L. v. P.T.M., 2012 BCSC 75, was a case concerning whether a s. 15 report should be adopted on an interim basis or not.
There are a number of cases that deal with the concerns in adopting a s. 15 report’s recommendations, though, of course, the party whom the report favours almost invariably pushes for its adoption as soon as possible.
The court laid out the appropriate considerations as follows:
[11] In some cases, the Court may decide to implement the recommendations contained in a s. 15 report in advance of trial. For example, advance implementation was ordered in D.S.W. v. D.A.W., 2005 BCSC 1822 (CanLII), 2005 BCSC 1822. It was declined in Johnson v. Skillen, supra and in McConachie v. McConachie, 2008 BCSC 130 (CanLII), 2008 BCSC 130. Each case is very much dependent on its own facts but, the following considerations are among those that can be taken from the cases:
a) the time between the delivery of the s. 15report and the date of trial;
b) whether a party has concerns about the s. 15recommendations and the seriousness of those concerns;
c) whether the s. 15 report recommends a change in the status quo and the significance of that change; and
d) whether there are other concerns about the reasonableness of the recommendations in the s. 15 report and the child’s best interests.
The court decided not implement the report for the following reasons:
1. Significant contradictions in the affidavits, the ultimate decisions regarding which may affect the degree to which the court is prepared to accept the report of the s. 15 assessor.
2. The report preparer had not been cross-examined.
3. A failure to interview appropriate collateral witnesses
4. The assessor accepted the other party’s explanation for a highly contentious move, which was the subject of some dispute, without an apparently clear reason;
5. An alteration in the status quo
6. Trial was five months away, with the possibility that the access arrangements might be changed following a trial.
When a s. 15 report comes out that is not in your favour, there can be a lot of pressure placed upon you for immediate adoption of its recommendations. Choosing how to proceed at that point should be done carefully, and with the full benefit of legal advice. Likewise, if it favours you, you’re going to want to try and do what you can to have as much of it adopted as possible—either route should be taken with the advice of a competent lawyer.
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