Written by Tanya Thakur, Family Lawyer at Crossroads Law, Vancouver
Navigating family law in British Columbia can be daunting, particularly when dealing with child-related disputes. One key aspect that may arise is a court-ordered assessment under Section 211 of the Family Law Act, commonly referred to as a Section 211 or 's.211' report. This report assesses the views and needs of the child(ren) involved, and the parents’ ability to cater to those needs.
What is a Section 211 Report?
A Section 211 report provides an in-depth evaluation, offering expert insights on the most beneficial parenting arrangements for the child(ren) involved. This report not only takes into consideration the child(ren)'s perspective but also critically examines the parenting capacities of the adults involved. Crafted to serve the best interests of the child(ren), the report guides decision-makers in situations where parental roles and responsibilities need to be clarified or resolved.
Section 211 reports must be prepared by a qualified professional, such as a family justice counsellor, social worker, psychologist, or psychiatrist, following a comprehensive assessment. However, in the context of the BC Supreme Court, these reports are most often prepared by a qualified psychologist.
A report writer is likely to review relevant case documents, and there may also be a request for a list of other people (aka "collaterals") who can provide insights about the child(ren) involved. Collaterals may include teachers, doctors, or other individuals who interact regularly with the child.
The conclusions drawn in a Section 211 report often play a significant role in determining parenting time and arrangements, particularly in highly contested cases or where a parent's ability to meet their child(ren)'s needs is questioned.
How are Section 211 Reports Ordered?
The court can order a Section 211 report independently, or a party involved in the dispute can request one. If a party requests a Section 211 report, they are responsible to demonstrate to the court that the report would be potentially beneficial in determining the child(ren)'s best interest. Though the threshold for admitting a Section 211 report is relatively low compared to other expert reports, the ultimate decision to order this type of a report rests with the judge hearing your case.
Section 211 assessors serve as unbiased intermediaries, offering clear, impartial views to the judge, drawing upon their professional knowledge and experience. Unlike other expert reports, a Section 211 report doesn't need to meet a rigorous standard for acceptance. Typically, this report is accepted as valid without needing to pass the four-step "Mohan Test," which is a benchmark for most expert evidence. Unlike other expert testimonies that are often initially presumed to be invalid, Section 211 reports are seen as crucial and valuable, often referred to as "the eyes and ears of the court" (as noted in the case of Goudie v Goudie, [1993] BCJ No. 1049 (BCSC)). This is particularly important in family law cases, where there's often a shortage of other supporting evidence.
Section 211 reports have a unique status in that they can include viewpoints based on information and materials not directly presented in court, without being rejected as hearsay. However, it's important to note that while these reports are usually respected and taken into account, the judge determines how much influence they have compared to other pieces of evidence that have been presented during the case.
Impact of Section 211 Reports
The recommendations provided in a Section 211 report usually have a strong impact on a judge's decision, often forming a key part of their final ruling. This might be due to the professional reputation of the person who prepared the report. Since many of these assessors are often asked to compile such reports, judges are typically familiar with their qualifications and areas of expertise. This familiarity may lead judges to regard these reports as consistently trustworthy and impartial.
A Section 211 report is a comprehensive document often containing discipline-specific language and theories. If the assessments within the report match up with other evidence brought before the court, it strengthens the report's validity. Given its low threshold of admissibility and widely accepted validity, the recommendations in a Section 211 report often play a key role in the judge's decision, particularly in matters of custody and access. Essentially, the report acts as initial proof for the facts and opinions it includes, with the assessor's recommendations often being adopted by the judge (such as parenting arrangements and schedules). Moreover, these reports can also be used to assess a party's credibility.
Challenging a Section 211 Report
Admissibility
While potential biases in Section 211 reports could pose a challenge, the task of contesting these reports can be complex for legal professionals and their clients. The typical procedure dictates that, once a Section 211 report is ordered, it is most likely to be presented to the judge - even when there's evidence that its recommendations might be skewed. If evidence suggests that a report is biased or inappropriate, the judge can take that into account, possibly giving less weight to its recommendations during the final decision-making process.
In cases where a party wants to question the need for a Section 211 report, they can put forth arguments on how the report might delay court proceedings, impact the lives of the children involved, and create high costs for evidence gathering. Yet, as per past legal precedents (e.g., NR v NP, 2017 BCSC 1962), courts typically favour granting applications for Section 211 reports.
Cross-Examination
To challenge the validity or accuracy of a report, an involved party can cross-examine the assessor. However, it's important to note that successfully carrying out cross-examinations can present its own difficulties. The process can be financially demanding, especially if the cross-examination doesn't move the party's case forward, potentially leading to the party having to pay for the assessor's appearance in court. Additionally, it requires a unique skillset and proficiency.
Rebuttal Reports
As an alternative, the challenging party could employ another assessor to contest the report. This alternative assessor might dispute the methodology used in the initial assessment or conduct a new assessment to provide a different set of recommendations.
Cost of Section 211 Reports
The expense of a Section 211 report can be a considerable factor for all parties involved in the case. The costs associated with these reports can vary greatly, often dependent on the complexity of the situation, the duration of the assessment process, and the rate of the professional conducting the assessment.
Typically, the court orders that both parties equally share the cost of a Section 211 report, although there can be variations in this arrangement based on the respective financial situations of the parties involved. Sometimes, the court may determine that one party is responsible for a larger portion of the cost, or even the entire cost in the first instance, particularly where there are concerns around financial disparity between the parties.
The price tag for a comprehensive Section 211 report can be over $10,000, making it a significant investment. Therefore, it is crucial for parties to consider the cost implications of requesting such a report.
In the interest of mitigating these costs, alternatives to a full Section 211 report may be considered. For instance, a 'Views of the Child' report or a 'Hear the Child' report might be appropriate in certain cases, offering a more focused and less expensive means of obtaining the child's perspectives.
Legal professionals can help their clients understand these costs and the potential financial implications of different types of reports. They can also explore various strategies, such as requesting cost-sharing arrangements or seeking less expensive alternatives to a full Section 211 report, to manage these costs more effectively.
Key Takeaways
A Section 211 report's primary goal is to provide the court with an unbiased, comprehensive assessment of the child's best interests, considering the familial situation, the child's relationships, and their overall well-being. Both self-represented individuals and legal professionals can benefit from understanding this process and its implications.
If you are considering whether to request a section 211 report or are preparing for one, it's a good idea to seek legal advice, if possible. An experienced lawyer can guide you on what is expected of you and suggest potential collaterals whose input may be beneficial. The aim here is to present the most accurate and comprehensive picture of your child's living circumstances, well-being, and relationships.
Navigating the intricacies of a Section 211 report can indeed be a complex process, but with a clear understanding and the right guidance, it becomes a manageable task aimed at ensuring the best possible outcomes for the children at the heart of these proceedings. At Coach My Case, our legal coaches are experienced family lawyers who are well versed in the complexities of high conflict parenting disputes and Section 211 reports. Contact us today to book your free 20-minute consult.
