In today’s blog our team of Calgary Alberta Parenting Assessments Lawyers explains Parenting Assessments in Alberta and what the Factors & Considerations are in ordering these reports.
“Voice of the Child” reports are ever more common in high-conflict family law disputes these days. In fact, one recent Ontario Court of Appeal case (see: GR. v. GK., 2017 ONCA 108) stated (at para. 67):
“This appeal demonstrates the importance of the emerging movement to incorporate the voice of the child in all matters concerning minors.”
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Our top Calgary Alberta Parenting Assessments Lawyers know that “Voice of the Child” (VOTC) reports are only one form of parenting assessment used in family law disputes (for more on VOTC reports, see: Calgary Family Voice of Child Reports Lawyers. Parenting Assessments can range from a ‘triage’ assessment of immediate concerns to a full-blown ‘bi-lateral’ assessment of the whole family situation to determine a final parenting arrangement between the parents.
But are Parenting Assessments automatically obtained or ordered by the Court? What if one parent does not agree to getting a Parenting Assessment to help them (and more specifically the Court) decide their parenting arrangement? What then are the factors and considerations a Court will look at in determining whether a Parenting Assessment should, or should not, be ordered?
Parenting Assessments in Alberta
The Court’s authority to grant a Parenting Assessment varies by province. In British Columbia and Ontario, this comes from specific legislation (s.211(1) BC Family Law Act; s.30 Ontario Children’s Law Reform Act). In Alberta, this authority comes from the Court exercising its inherent parens patriae (meaning “to act in the stead of a parent for the protection of a child”) jurisdiction, specifically in the form of two (2) types of parenting assessment authorized under the Court of King’s Bench of Alberta’s Family Law Practice Notes, being:
Practice Note 7 (PN7) – a range of different levels of assessment (Evaluative or Therapeutic) designed to obtain recommendations on addressing a specific (or a number of specific) issues and questions regarding the parenting of children;
Practice Note 8 (PN8) – a full-blown bi-lateral assessment designed to give a detailed expert opinion on broader, longer-term parenting issues, including primary care and parenting arrangements.
But what are the specific factors and considerations Alberta Courts will look at in determining whether or not to order a Parenting Assessment? Our MacLean Law Calgary Alberta Parenting Assessments Lawyers point out One of the earliest Alberta cases to address this issue was the 2010 case of Gordon v. Towell (2010 ABQB 396) where Justice D. Lee, in refusing to order a Bi-Lateral Parenting Assessment, stated (at para. 62):
The decision to order an assessment is discretionary, and is based on the best interests of the child… It is the Court’s job to ascertain what is in the best interests of the child and so there should be good reason and the assessment should be expected to uncover evidence not otherwise discoverable because of, for example high conflict situations, or psychological issues. An assessment should not be used as a fishing expedition to find evidence to make a case.
Best Interests Of The Child
More recently, in the 2021 case of CMZ v. JLZ (2021 ABQB 700), Justice D.A. Labrenz, in noting the high conflict nature of the proceedings and the parties’ “proclivity for protracted disputes”, stated (at para.’s 80 – 85):
CMZ also questions the need for a PN8 and brought to my attention the statement made by Schutz JA in Bourgeois v Caldwell (citation omitted) that PN8’s should be reserved for the small minority of separated and divorced families where the families are at an impasse, an assessment is required, and the Court requires assistance from an expert…
While I agree that the trial justice will be tasked with deciding the best interests of the children and that the best interests of the children will be decided by the Court, not an expert, it is likely that the assistance of a parenting expert opinion as to parental capacity and the best interests of the children will be of great assistance at trial. I am of the view that the proposed PN8 evaluation will assist by providing an objective explorative evaluation of both parents in the context of their ability to relate to and parent their children. The PN8 evaluation, which is typically very thorough, will provide the added benefit of fully exploring the risks posed to the children by either parent and will provide necessary insight into the personality issues that are in conflict.
Finally, in the 2021 case of DCE v. DE (2021 ABQB 909), Justice K. Feth [while also setting out a useful review of the roles, issues and framework for the appointment of child’s counsel (at para. 25 – 41)], set out the relevant considerations as to whether a PN7 Evaluative Intervention and Voice of the Child report is “warranted”, including (at para. 45):
(a) the nature and complexity of the dispute between the parties;
(b) whether the child is old enough to voice an opinion;
(c) whether the child has any behavioural or psychological issues;
(d) whether the child has any special needs or developmental issues;
(e) whether a legitimate concern exists that the child is being harmed;
(f) whether one parent may be alienating the child from the other parent;
(g) whether the child is under the control of a parent in terms of formulating their views and preferences;
(h) whether an inexplicable rift has arisen between parent and child;
(i) whether any complex inter-personal dynamics between the parents are concerning; and
(j) whether the parents have the financial means to pay the cost of the Intervention.
However, in denying either an Evaluative Intervention or Voice of the Child Report under PN7 Assessment or the appointment of child’s counsel in this case, Justice Feth also went on to comment on the overriding necessity and concerns regarding obtaining a parenting assessment (returning the discussion full-circle back to the 2010 case of Gordon v. Towell), stating (at para. 13 – 15):
Hearing from an affected child does not necessarily require the appointment of independent counsel or an Evaluative Intervention, including a PN7 Voice of the Child report. Simpler alternatives may be available …
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The Court is also vigilant to avoid an abuse of its process, especially where high conflict domestic disputes descend into one parent using a child as an instrument for harassing the other parent, spying on the other parent’s activities, or coercing a settlement. Similarly, independent counsel or an Evaluative Intervention should not be ordered as a fishing expedition to find evidence or make a case: Gordon v Towell (cite omitted).
Accordingly, three (3) clear factors and considerations appear from the case-law regarding the granting of Parenting Assessments (PN7s and PN8s) in Alberta, being that they:
● are discretionary;
● must not be a “fishing expedition”, and;
● must be “in the best interest of the child(ren)” .
Recent cases demonstrate a difference of opinion of Alberta Justices about the usefulness of Parenting Assessments in resolving family disputes, often involving concern regarding the cost, delay and difficulty (due to increased complaints to their governing bodies) in finding qualified parenting experts in obtaining such reports [ie. see Justice D.L. Pentelechuk’s caution about the weight to be given a Patenting Expert’s opinion at trial in AJU v. GSU (2015 ABQB 6)].
Furthermore, a recent study has found that while significantly fewer Parenting Assessments appear to be conducted and used in Alberta than BC or Ontario (perhaps because of a greater use of mediation to resolve family disputes in Alberta), assessment recommendations are no more likely to be accepted in Alberta than in other provinces (they appear to be used more frequently and relied upon more consistently in BC) – see: Parenting Assessments and Their Use in Family Law Disputes in Alberta, British Columbia and Ontario, Boyd, JP (2017), Canadian Research Institute for Law and the Family.
So, are Parenting Assessments generally and “Voice of the Child” reports specifically a panacea for resolving family law disputes involving children, particularly in ‘high conflict’ matters? Are (should) they be incorporated in all family law matters concerning minors (as the Ontario Court of Appeal suggested)? No. But they are becoming an increasingly important factor and consideration (ie. useful “tool in the tool-box”) for Courts to use when called upon to apply the amorphous “best interests of the child” test in resolving parenting disputes.
Call our Calgary Alberta Parenting Assessments Lawyers early on in your parenting dispute if you have questions on the voice of the child, or views of the child in a Calgary child parenting dispute.
