Developing a Model Parenting Assessment Order in British Columbia

Parenting assessments, known as custody and access reports, custody evaluations or bilateral assessments elsewhere, are commonly used in family law disputes in British Columbia whenever there is a significant difference of opinion about the parenting arrangements best suited for a child. However, in the absence of standards guiding the professionals who prepare these assessments, whether psychologists, clinical counsellors or social workers, the methodologies used to assess and describe the circumstances of the children and the capacities of their parents are as varied and unpredictable as the reports themselves. Thankfully, the number of execrable reports is dwarfed by the number of excellent reports, a fact reflected in the distribution of condemnations and commendations among the case law commenting on parenting assessments.

The mixed nature and quality of these reports nevertheless prompted a number of British Columbia legal and mental health professionals — the Honourable Judge Patricia Bond, Ms Megan Ellis Q.C., Dr. Michael Elterman, Dr. Rebecca England, Dr. Mary Korpach, Ms Morag MacLeod Q.C. and myself — to get together and see if a model order could be developed that would have the effect of establishing some consistency. The lawyers in our group were particularly driven by case law, perhaps unique to British Columbia, holding that assessor’s findings of fact are prima facie proof of those facts, while the psychologists were especially motivated to obtain some uniformity in the terms of their retainer and payment expectations.

The intention of this model order is not to establish practice standards. Although we believe that practice standards of one sort or another, such as those promulgated by the Association of Family and Conciliation Courts, would be valuable, their development is more properly the province of the professional regulators, including the BC Association of Clinical Counsellors, the College of Psychologists of British Columbia and the British Columbia College of Social Workers.

The first draft of our model order was completed a few months ago, in the Before Times, and is now being distributed to judges, lawyers and front-line advocates for comment. We welcome your feedback as well.

Here is the model order. Headings are provided for reference only and would not be included in the order submitted to the court.

Appointment of assessor

1. [Name of professional], or, in the event [name of professional] is unable or unwilling to accept the appointment, [name of alternate professional], (the “Assessor”) is appointed to prepare a written report concerning the arrangements for the parenting of or contact with [names and birthdates of all children who are the subjects of the assessment].

2. In the event [name of professional] or [name of alternate professional] are unable or unwilling to accept the appointment, [name of professional] or [name of alternate professional] will forthwith advise the court in writing, and will copy the communication to the parties.

Purpose of assessment and due date

3. Pursuant to section 211(1) of the Family Law Act, the Assessor will assess and prepare a report concerning (check all that apply):

☐ the needs of the child(ren) in relation to this family law dispute.

☐ the views of the child(ren) in relation to this family law dispute.

☐ the ability and willingness of [names of adults who are the subjects of the assessment] to satisfy the needs of the child(ren).

4. The Assessor will make their best efforts to complete the report by [date]. If circumstances arise such that the Assessor will not be able to complete the report by the expected completion date, the Assessor will forthwith advise the parties and the court in writing.

5. The Assessor will concurrently give a copy of the completed report to each party, and give a copy of the completed report to the court.

Cooperation and communication of parties

6. The parties will meet with the Assessor, and take such steps as may be required for the child(ren) to do so, when and where requested by the Assessor.

7. The parties will promptly provide to the Assessor any information and documentation the Assessor requests.

8. The parties will promptly sign and return to the Assessor any releases of confidentiality or authorizations the Assessor may require, including for the release of the records of, or to speaking to, any professionals who have direct knowledge of the child(ren) or the parties, including any counsellors, therapists, doctors, teachers, social workers and other professionals, provided that the Assessor may only seek the release of the records of, or speak to, any mediators or counsellors assisting spouses to achieve a reconciliation of their relationship:

☐ BY CONSENT, in which case the parties will promptly sign and return to the Assessor any releases of confidentiality, authorizations and waivers of privilege required for this purpose, or

☐ where the test in M.(A.) v Ryan, [1997] 1 SCR 157 has been met.

9. Except when meeting with the Assessor as requested or otherwise directed by the Assessor, all communications between a party or their lawyer and the Assessor must be in writing and be copied to the other party or their lawyer.

10. For the purposes of the preparation of the report, any expectations or entitlements of confidentiality as between the Assessor and the parties and the Assessor and the child(ren) are waived, and the parties will promptly execute consents to this effect at the request of the Assessor.

Preparation of report

11. Subject to paragraphs 8 and 12 of this Order, the Assessor may interview any counsellors, therapists, doctors, teachers, social workers and other professionals who have direct knowledge of the child(ren) or the parties and who, in the opinion of the Assessor, are likely to have information that will assist the Assessor in the preparation of the report.

12. The Assessor may not interview any family justice counsellors.

13. The Assessor may interview one or more people identified by the parties for the preparation of the report.

14. Subject to paragraphs 8 and 12 of this Order, the Assessor may obtain and review the records of any counsellors, therapists, doctors, teachers, social workers and other professionals who have direct knowledge of the child(ren) or the parties for the preparation of the report. The Assessor may, subject to any agreements between the parties or the further order of the court, review only the following additional documents for the preparation of the report (check all that apply):

☐ in the case of matters before the Supreme Court, the Notice of Family Claim, Response to Family Claim and Counterclaim or, in the case of matters before the Provincial Court, the Application to Obtain an Order, Application Respecting Existing Orders and Agreements and Reply,

☐ in the case of matters before the Supreme Court, the following Notices of Application and Application Responses or, in the case of matters before the Provincial Court, the following Notices of Motion: [identify documents],

☐ the following affidavits: [identify documents],

☐ the following orders, awards and agreements: [identify documents], and

☐the following other materials: [identify documents],

as well as such further and other documents as may be requested by the Assessor.

15. In addition to family violence and any other issues that the Assessor identifies, the Assessor must address in the report the following specific issues and allegations, and their impact, regarding (check all that apply):

☐ children resisting or refusing parenting time or contact with a party.

☐ the relocation of the child(ren), in light of the factors identified at sections 46 or 69 of the Family Law Act.

☐ substance abuse.

☐ other mental health concerns.

☐ [identify other issues or questions to be assessed].

16. The Assessor will observe the child(ren), and the child(ren) and the parties, for the purposes of the report, in a manner as comparable as possible, unless in the opinion of the Assessor an observation would be unsafe or is contraindicated. The observations will take place in an environment or environments in which the child(ren) are most likely to be comfortable, where practical and appropriate in the opinion of the Assessor.

17. The Assessor must identify in the report all persons they have interviewed and all documents they have reviewed in the preparation of the assessment.

18. The Assessor must identify any person whose statements are referenced in the report.

19. The Assessor will address in their report all of the factors identified in section 37(2) and (3), section 38, and section 41(a) to (h), (j) and (l) of the Family Law Act that are, in the opinion of the Assessor, relevant to the arrangements for the parenting of or contact with the child(ren).

Payment of Assessor’s fees and disbursements

20. [Specify party or parties responsible for payment of Assessor’s retainer] will pay any retainer or deposit requested by the Assessor to secure payment of the Assessor’s fees for the report no later than the date specified by the Assessor.

21. The parties are at liberty to apply at the final determination of this matter for a reallocation of the cost of the report.

22. The Assessor is entitled to be compensated for their time, including for any time required to prepare for or to attend court to be cross-examined, at the Assessor’s ordinary hourly rate. Subject to agreement between the parties or a court order, the party requiring the Assessor to attend court to be cross-examined will be responsible for the fees and any disbursements of the Assessor incurred.

23. If a party requires the Assessor to produce a copy of some or all of their file on the report, the Assessor is entitled to be compensated for the Assessor’s time spent reviewing the file as necessary to comply with their professional standards and for the reasonable cost of photocopying. Subject to an agreement between the parties or further court order, the party requiring the production of the file will be responsible for the fees and disbursements of the Assessor to do so.

24. Neither party may require the Assessor to produce copies of any psychometric tests that were administered to a party or to a child, and any materials related to those tests, that are protected by copyright, except to provide these materials to a registered psychologist qualified in British Columbia to administer and interpret those tests.

Bar on reports and complaints

25. The parties will be and are hereby restrained from

a) making complaints or reports about the Assessor to the Assessor’s governing professional body, consumer protection bureaux and similar organizations,

b) posting complaints, comments or reports about the Assessor on social media of any kind, and

c) posting complaints or reports about the Assessor to review websites, professional rating websites and similar websites

without leave of the court until such time as a final order or agreement addressing the arrangements for the parenting of or contact with the child(ren) is made and, in the case of a final order, until any appeals or appeal periods have concluded or expired.

Acknowledgement of Assessor

I, [name of professional], have reviewed and understand the draft order above. I am prepared to accept the proposed appointment, and conduct and complete an assessment, on the terms described.

Signed at [place], British Columbia on this [number] day of [month], [year].

___________________________

[Name of professional]

Please provide your feedback to me at jpboyd@boydarbitration.ca, or include it as a comment to this post.

For those who are interested in learning more about the background to the model order, and the other concerns that animated our small, ad hoc group, Megan Ellis and Morag MacLeod are hosting a webinar through the Trial Lawyers Association of BC on Tuesday 9 June 2020 at 12:45pm pacific that you won’t want to miss. More information about the webinar and registration can be found on TLABC’s website.