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BC Child Custody Parenting 211 Report Lawyers deal with BC child custody and access, BC child parenting time and responsibilities and child relocation and mobility cases. The Court must focus ONLY on the best interests of the child(ren) in making any decision on these difficult questions.

Family law Act Section 211 of the Family Law Act allows the court to order an assessment by a qualified forensic psychologist of both the best interests of the child and each parent’s comparative ability to meet those best interests focussing on:

  1. the needs of a child looking at their unique strengths and weaknesses,
  2. the views of a child with more weight given as the child gets older,
  3. the comparative ability of each party to meet the child’s needs, and
  4. the proposed parenting plans each party puts forward including child relocation issues.

Hiring a forensic psychologist to prepare a FLA section 211  best interests of the child and parenting capacity assessment is common in these cases. BC Child Custody Parenting 211 Report Lawyers explain the cost of these section 211 reports is usually over $10,000. Click here to find out from our award winning BC Child Custody Parenting 211 Report Lawyers if a section 211 is right for you and your children.

So how does a section 211 report get used in Court? Today’s blog explains trhe role of the psychologist, their report and how it impacts a decision a court makes on what is in the best interests of a BC child.

BC Child Custody Parenting 211 Report Lawyers 1-877-602-9900

In the recent case of A.P v. J.C Mr Justice Verhoeven explains the law and how a judge uses the psychologist as the eyes and ears of the court but still retains decision making authority. Lorne N. MacLean, QC founder of our team of top rated* BC Child Custody Parenting 211 Report Lawyers have high llighted the key points for you:

[116]     The context under s. 211 is not comparable to that of an expert retained by a party in a non-family case.  As observed by Parrett J. in Goudie v. Goudie, [1993] B.C.J. No. 1049 (S.C.), at para. 33:

[33] …The procedure anticipated by s. 15 is one in which the investigator interviews the people involved, observes the relationship and interaction between the spouses and the children and reports those observations, facts and impressions to the court. In the truest sense these individuals act as the courts eyes and ears in what are all too frequently highly emotional areas of conflict. The safeguards built into the process include the early delivery of the investigation reports, the opportunity to call the investigator to the witness stand and the opportunity to respond to the report generally by other evidence.

[117]     FRA s. 15 reports were not governed completely by the evidentiary rules which would be in effect when dealing with reports requisitioned by one of the parties from an expert: Wu v. Sun et al, 2006 BCSC 1891, at para. 3.  Similar legal principles can be applied to both s. 15 FRA and s. 211 FLA assessments or reports: K.B. v. J.B., 2015 BCSC 704, at para. 6.

Judge, Not Assessor Decides

[118]     The s. 211 author may provide an opinion, but it is for the court to decide the matters at issue: Johnson v. Skillen, 2009 BCSC 209, at para. 8; I.J.G.P.G. v. K.M., 2016 BCSC 1072, at para. 100; A.L. v. L.W., 2017 BCSC 964, at para. 8The court must not abdicate its role in favour of the recommendations made: King v. Borserio, 2018 BCCA 308, at para. 76. Regardless of the information that goes to the report writer, the court ultimately has the discretion to review the background information presented in the report, carry out an independent assessment based on the evidence at trial, and come to a different conclusion as to the best interests of the child: K.B. v. J.B., 2015 BCSC 704, at para. 10, citing T.C. v. S.C., 2013 BCPC 217, at paras. 143-144; Plant v. Kempton, 2011 BCCA 171, at para. 11.

[119]     In K.M.W. v. L.J.W., 2010 BCCA 572, Huddart J.A. stated (for the court):

[50] To aid the court and counsel in their respective tasks, in British Columbia, counsel and the court are permitted to seek the assistance of an independent and impartial investigator and to call on that investigator to make recommendations based on the results of that investigationFamily Relations Act, s. 15. The facts stated in the investigator’s report are prima facie evidence of their truth: B. v. B., 2004 BCSC 72 at para. 36; Goudie v. Goudie, [1993] B.C.J. No. 1049 (S.C.) [Q.L.] at paras. 33-4; Hamilton v. Hamilton (1983), 50 B.C.L.R. 104 at 109 (Prov. Ct.).

[Emphasis added.]

Recommendations Routine

[120]     Huddart J. uses the phrase “to call on that investigator to make recommendations”, which may suggest that such a request must specifically be made.  However, in view of fact that such recommendations have been routine for many years, and the importance and utility of them, in my view the ordinary expectation of the parties and court is that the report will contain recommendations, unless the court otherwise orders. 

[121]     In the same year Fawcett was decided (1999), in the trial decision in Van de Perre, T. P. Warren J. declined to follow the recommendations of Dr. Korpach pursuant to the s. 15 FRA report, that custody of the child should go to the father and his wife.  He granted custody to the child’s mother. This illustrates both that the practice of s. 15/s. 211 report writers making recommendations is nothing new, and that judges can and do disregard such recommendations. The trial decision was reversed by the Court of Appeal, and restored by the Supreme Court of Canada.

[122]     It could be awkward and artificial for the assessor to limit the report by avoiding recommendations or opinions as to the actual issue before the court.  This is such a case.  There was one essentially binary issue that Dr. Elterman was directed to assess: where should the children reside? A report written in a manner designed to avoid dealing directly with this issue would not be as useful, and could leave out important information.

Court Shouldn’t have To Guess Psychologist’s Opinion

[123]     Here, the portions of the report the father seeks to exclude set out Dr. Elterman’s recommendations, and, critically, his rationale. The combined presentation of both recommendations and reasons helps the court to easily and clearly understand and evaluate the assessor’s opinion.  Without the recommendations, and reasons, the parties and the court could be left guessing as to the assessor’s real opinion.  Where the stakes are as high as they are in relocation cases, that should not happen.

Report Can Aid Settlement

[124]     Another advantage of having the report writer provide recommendations is that, as recognized in Fawcett, the parties could choose to implement the recommendations, without going to court.  The report writer should not have to prepare two versions of the report.

[125]     The terms of the letter to Dr. Elterman from counsel could not limit his authority from that set out in the order of the court appointing him, even though the order was made by consent of the parties. The s. 211 assessor is appointed by the court, and derives his or her authority from the court order and the statute, not counsel’s instructions. In any event, the wording of the letter relied on is very limited. It does not state that the parties agree that Dr. Elterman must not make recommendations as to the relocation issue.

[126]     In summary, I consider Dr. Elterman’s opinions and recommendations admissible, and that the process has not been unfair or prejudicial to the father.  It is open to me to agree or disagree with the recommendations as I may see fit. More broadly, in my view it is appropriate for a s. 211 assessor to include in the report the author’s recommendations concerning the actual issues before the court, unless the court orders otherwise. If the parties wish to limit the assessor’s authority in this way, they should address that through the terms of the court order.

[127]     I observe that in this case I am particularly reliant on the s. 211 report, due to the fact that the parties have chosen to proceed by way of a summary trial. It is thus all the more critical that I have the benefit of a full and complete report.

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