07 December 2009

Website Begins Integration of New Rules

On 1 July 2010, the current Supreme Court Rules of Court will be replaced with two new sets of rules, one for general civil litigation and one for family law matters (PDF). This isn't the sort of tinkering we're used to seeing every summer, this is a stem to stern overhaul with brand new rules and new court forms. Even the names of the parties are changing!

The Rules of Court are tremendously important. They guide the conduct of every aspect of the law suits before the court, from how service is effected to the scheduling of applications to the production of documents and the remedies available when production is inadequate. When the rules change, it's a big deal. It also means that websites like mine need to have overhauls of their own to make sure that they stay current.

A new section of my website, Rules 101, offers an overview of the new family law rules and will be updated from time to time as I'm able to compile the information. So far, Rules 101 has a summary of procedure under the new rules, new rules' deadlines and timelines, and a description of the process for chambers proceedings.

My July 2009 post Government Announces Implementation of New Family Law Rules discusses the new rules and has links to all of the relevant background documents.

04 December 2009

More Cuts to Legal Aid, Part 2

I have just learned that a number of family law lawyers and criminal law lawyers in Kamloops have formed a committee and voted to withdraw duty counsel services in response to the recent cuts to legal aid including the closure of their regional Legal Services Society office, and the impact the cuts will have on access to justice. The spokespeople for the committee are Graham Kay (250-374-1989) and David Dundee (250-828-9998).

The strike will begin on 11 January 2010 and affect Provincial Court criminal law matters and Provincial Court and Supreme Court family law matters in Kamloops and Merit.

Read Part 1.

03 December 2009

Section 15 Reports

Important Update: The Family Law Act came into force in March 2013 and replaced the Family Relations Act, which is the subject of this post. The parts of the old act that talked about custody and access reports are now found at s. 211 of the new act, and those reports are now called "section 211 assessments" or "needs of the child assessments." I have added a brief comment on the new act to the end of this post.

"Custody and access reports," "custody assessments" and "section fifteen reports" are some of the names given to reports prepared pursuant to s. 15 of the Family Relations Act. The purpose and scope of these reports can be a bit confusing, because they seem to be treated differently in the Provincial Court and the Supreme Court, because different sorts of people prepare them, and because the scope of s. 15 is really quite broad.

The Family Relations Act

Section 15 says, in part, this:
In a proceeding under this Act, the court may, on application, including an application made without notice to any other person, direct an investigation into a family matter by a person who
(a) has had no previous connection with the parties to the proceeding or to whom each party consents, and
(b) is a family counsellor, social worker or other person approved by the court for the purpose.
(2) A person directed to carry out an investigation under subsection (1) must report the results of the investigation in the manner that the court directs.
I've highlighted the bits that are particularly important for this discussion. Essentially, s. 15 says that the court can order that a report on any family issue be prepared by any person, in whatever manner the court directs, and the court can make an order that a report be prepared on its own initiative or on the application of a party.

Most of the time, people want a s. 15 report for the assessor's recommendations about things like where the children should live most of the time and the optimum parenting schedule. It can happen, however, that people want the assessor to look at a specific problem such as a parent's drinking, mental instability, drug use or personality disorder, and comment on how the issue affects the person's capacity to parent.

Provincial Court

Most of the time, s. 15 reports prepared in matters before the Provincial Court are prepared by family justice counsellors, employees of the Provincial Court who have some training in conducting custody and access assessments, and usually have a background in social work or psychology.

These reports are free but they can take a terribly long time to complete, anywhere from six months to one year or more, depending on which courthouse the parties are at. (Surrey and Vancouver are notoriously overburdened courts.) A private psychologist or psychiatrist could probably get the assessment done faster, but they charge for their work and I'd expect that the cost would start at about $3,000 and go up to $9,000 or more, depending on the circumstances and the scope of the report.

The court can order that a s. 15 report be prepared at the first appearance, at any other appearance before trial and at a family case conference. The court generally won't order s. 15 reports at trial... by then it's too late, and ordering the report would only serve to delay the trial.

Supreme Court

Section 15 reports prepared for the Supreme Court are usually done by private psychologists and psychiatrists. Although they come at a pretty significant cost, they can usually be prepared within three to six months, depending on the issues.

The court can order that a s. 15 report be prepared at a judicial case conference or at any application brought before trial. The court will not order the preparation of a s. 15 report at or on the brink of trial.

Rules of Evidence

In the Supreme Court, s. 15 reports stand as expert evidence. "Expert evidence" is different than other kinds of evidence, because it offers an expert opinion about the best parenting arrangements for the children.

(Normally, the only kind of evidence allowed at trial is evidence of facts: "I saw Ted outside the bank," "I have a blue Chevy Pinto," "last year we went to Chilliwack for Christmas," and so on. Opinion evidence is usually about beliefs, assumptions and conjectures: "aliens live on Jupiter," "my cat is better than your cat," or "Jerry is a bad father." Expert opinion evidence is about an expert's professional conclusions about an issue or question beyond most people's knowledge: "foundations need to be drilled to a minimum depth of 6m in Prince George to avoid frost heaves," "gerbils have an average I.Q. of 15" or "the kinematic viscosity of single non-winter grade oils is measured at a temperature of 100 °C in units of mm²/s.")

As expert evidence, s. 15 reports are often subject to the special provisions of Rule 40A about who is an expert and who isn't, introducing expert reports at trial and cross-examining the person preparing the report. The Supreme Court is usually very strict about how evidence is admitted at trial and how expert reports can be used.

Things are a bit different in the Provincial Court. Rule 11(2) deals with s. 15 reports, and this rule doesn't describe persons preparing s. 15 reports as "experts." In fact, the rule seems to treat s. 15 reports entirely differently than expert evidence, which is dealt with in Rule 11(3) to (8). This is probably why family justice counsellors are able to prepare s. 15 reports for Provincial Court: they are not expected to qualify as experts and s. 15 reports are treated differently than the usual sort of expert evidence.

Views of the Child Reports

Views of the child reports are a kind of s. 15 report in which the assessor is hired to meet with the child and report back to the court or the parents on the child's views and wishes. These reports can be prepared by experts (psychologists or psychiatrists) or by non-experts (lawyers, court workers and so forth). They do not recommend or suggest a certain parenting arrangement; they are primarily geared toward finding out what the child's preferences are, even though there's no guarantee that the court will do what the child wants.

Although it probably seems that these reports don't have a great deal of utility, in fact they are very helpful when a dispute is primarily focused on parenting issues, especially in the context of settlement discussions at case conferences. Parents can be profoundly influenced toward reason by a third-party's report of their children's wishes.

When these reports are prepared by experts, the expert will sometimes administer some tests to determine the child's truthfulness and honesty, and the expert may look at difficult issues such as whether the child has been alienated from a parent or whether the child has been coached to have a certain preference.

Non-experts don't have the special skills to administer tests like that or to give opinions about whether a child has been influenced by a parent or alienated against a parent. As a consequence, while their reports are much more limited in scope and usefulness, they are generally much cheaper and faster to obtain than expert's views of the child reports: you're not paying for an expert and the assessor isn't going into an expert's level of detail.

There is another difference between expert's and non-expert's views of the child reports that has to do with the previous discussion about evidence. Expert's views of the child reports are expert evidence that can be used in both the Provincial Court and the Supreme Court. Although non-expert's views of the child reports can be used in the Provincial Court because of the special provisions of Rule 11(2), non-experts won't meet Rule 40A's test for admissibility and can't be used as evidence in the Supreme Court.


Section 15 is really quite broad. It can be used to make an application for almost any kind of report in a family law case... (I was about to say "except for medical reports and financial reports," but nothing in s. 15 really limits the sort of report the court can order to just issues about children, does it?) ...but is most often used to get an assessment of the parenting arrangements that would be best for the children.

Custody and access reports can take a lot of time to process in the Provincial Court but they are usually free. Custody and access reports can be had much more quickly in the Supreme Court, but since they're done by private psychiatrists and psychologists they can be very expensive.

Views of the child reports are an underused species of s. 15 report, and are usually must faster and cheaper to obtain than custody and access reports, particularly where the report is prepared by a non-expert. They do not have the same persuasive effect on the court that custody and access reports have, however, and non-expert views of the child reports may not be admissible in Supreme Court matters.

Update: 24 August 2014

Lots has happened since I wrote this post in 2009. Most importantly, the Family Law Act has replaced the Family Relations Act, and what used to be known as "section 15 reports" are now known as "section 211 assessments" or "needs of the child assessments."

Assessments under the new law can be a lot more focussed than they were under the old law. The new law says that the court can appoint a family justice counsellor, social worker or "another person who is approved by the court," normally psychologists or registered clinical counsellors, to do report on the needs of a child, the views of the child and/or the ability and willingness of a party to meed the needs of the child. The old law just said that the court could order "an investigation into a family matter."

Here's what s. 211 of the new law says:
(1) A court may appoint a person to assess, for the purposes of a proceeding under Part 4 [Care of and Time with Children], one or more of the following:
(a) the needs of a child in relation to a family law dispute; 
(b) the views of a child in relation to a family law dispute; 
(c) the ability and willingness of a party to a family law dispute to satisfy the needs of a child.
(2) A person appointed under subsection (1)
(a) must be a family justice counsellor, a social worker or another person approved by the court, and 
(b) unless each party consents, must not have had any previous connection with the parties.
(3) An application under this section may be made without notice to any other person. 
(4) A person who carries out an assessment under this section must
(a) prepare a report respecting the results of the assessment, 
(b) unless the court orders otherwise, give a copy of the report to each party, and 
(c) give a copy of the report to the court.
(5) The court may allocate among the parties, or require one party alone to pay, the fees relating to an assessment under this section.
The new law improves on the old by:
  1. emphasizing the child-centred nature of the assessor's enquiry, 
  2. allowing the court to direct the assessor to consider the children's views, and
  3. focussing the enquiry on the ability of a party to meet the children's needs.
Beyond this, however, all of the old rules, standards and expectations that applied to s. 15 reports will continue to apply to s. 211 assessments.

On another subject, I had the good fortune of presenting with Dr. Phil Stahl, a highly respected forensic psychologist practicing in Arizona, about shared parenting after separation at a recent conference. Dr. Stahl spoke about the scientific standards which should be expected of people preparing needs of the child assessments at a later section, and his talk was fascinating, to say the least. Dr. Stahl has just just published a book on this issue, which I am happy to recommend. Forensic Psychology Consultation in Child Custody Litigation: A Handbook for Work Product Review, Case Preparation, and Expert Testimony is available through the American Bar Association.