Section 211 custody critique reports are used to dispute custody and parenting capacity Family Law Act section 211 reports. There are strict rules for whether or not a critique report will be accepted into evidence by the court in a child parenting time and responsibilities dispute. The goal in BC family law is to have a joint expert assist the court in coming to a proper decision.
In family law, the general rule is that joint experts are required where expert opinion evidence is to be presented to the court on a financial issue. Rule 13-3(3) of the Supreme Court Family Rules, importantly, allows expert opinion evidence on non-financial issues such as parenting to be presented either by a jointly appointed expert or one appointed by one or more of the parties alone.
Section 211 Custody Critique Reports
“Critique” or “rebuttal” Section 211 Custody Critique Reports are often obtained in situations where, for example, a party obtains a joint s.211 report on parenting capacity, disagrees with the report writer’s recommendations and/or conclusions and obtains a further expert critique from a different expert that attacks the methodology and professionalism of the section 211 report preparer. Courts are often reluctant to delve into a battle between competing experts and must assess whether the critique report is an admissible expert report in the first place that can lead to the section 211 report being rejected or weakened. Learn more about your parenting time rights and responsibilities by meeting with us.
In Dimitrijevic v. Pavlovich, 2016 BCSC 1529, the court set out a two-step test for determining the admissibility of expert opinion evidence:
[14] Critique reports are proffered as expert opinion evidence. The inquiry for determining the admissibility of such evidence is divided into two steps. At the first step, the proponent of the evidence must establish the threshold requirements of admissibility. These are the four factors set out in R. v. Mohan, [1994] 2 S.C.R. 9, namely relevance, necessity in assisting the trier of fact, the absence of any exclusionary rule, and the requirement of properly qualified expertise. Evidence that does not meet these threshold requirements will not be admitted. If the threshold requirements for admissibility are met, there then follows a second discretionary gatekeeping step; the trial judge must decide whether the expert evidence is sufficiently beneficial to the trial process to warrant its admission despite any potential harm or prejudice that may result: White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23.
Admittance Of Section 211 Custody Critique Reports
So, even if a critique report meets the requirements for admissibility, the court must still undergo a cost-benefit analysis weighing the benefits and prejudice of admitting a critique report. With this second step of the test, the court in Dimitrijevic outlined the following important concerns that militate against admitting Section 211 Custody Critique Reports:
- properly prepared and informed cross-examination of the s. 211 author is the usual and preferred process for testing the opinions and conclusions expressed in the report;
- the authors of critique reports tend to be neither independent nor neutral and very often simply present arguments in the guise of expert opinion;
- there is, in fact, no standard protocol for s. 211 assessments that has to be exactly followed in every case but rather the authors of the s. 211 reports are free, indeed required, to use their education, experience, and expertise as they consider appropriate for the purpose of assisting the courts in determining what is in the children’s best interests;
- where the authors of the critique reports have not themselves conducted any testing or data analytics, they are unable to assist the court with any informed conclusions or recommendations respecting parenting arrangements;
- allowing critique reports to become a regular feature of custody and parenting litigation will increase the time, expense and uncertainty of a process that is already laden with too much destructive adversity and animosity; and
- adequate alternatives already exist for securing a second s. 211 report if appropriate, commissioning a competing psychological or parenting assessment, and the presentation through experts of peer-reviewed, authoritative social science on the parenting issues in dispute.
Child Custody and Parenting Time Trial Lawyers
In T.E.A. v. R.L.H.C., 2018 BCSC 2515, after a s.211 report was jointly obtained and the report writer had been cross-examined by both parties at trial, the mother sought to introduce a critique report, authored by two third party experts, into evidence at trial. Though the critique report met the admissibility requirements, the court held that almost all of the Dimitrijevic concerns were evident in the critique report. The court had concerns about the lack of neutrality of the authors and the clear bias in favour of the mother. In particular, the court concluded that the large parts of the critique report were an argument in the guise of expert opinion and that the critique report authors made many inappropriate negative comments about the s.211 report writer. In the end, the court declined to admit the critique report into evidence at trial.
In the end result, a critique report can be used to cross-examine the section 211 report psychologist even if it is rejected by the Court. Contact us immediately if you have a parenting time, parenting responsibilities and guardianship dispute.
