Submissions part of BC government’s ongoing family law reform
The Canadian Bar Association, British Columbia branch (CBABC) submitted recommendations to BC’s Attorney General to reform s. 211 of the Family Law Act, calling for standardization of these reports. This submission is part of BC's ongoing initiative to reform the Family Law Act.
Section 211 of the Family Law Act requires courts to order a report to describe the wants and needs of the children. The review is done independently by a legal professional, a psychologist, or other child professionals. Stephen McPhee, chair of the CBABC family law committee, says s. 211 reports are critical in the family law process.
“The reports play a very important role in assisting courts,” says McPhee. “They can help people come to an agreement on parenting, as well as assist the court with parenting decisions. The facts in the s. 211 report become prima facie facts unless they’re shown otherwise. Whenever something has that much importance, it is important to address any issues and gaps that can arise.”
The CBABC submissions are coming just before the government launches into its consultation process about s. 211 next year, which McPhee calls a “coincidence.” BC’s Attorney General launched a comprehensive review of the Family Law Act in 2010. Phase 1 focused on spousal support and property division.
“We’ve had success in working with the government,” said McPhee. “For example, after the FLA came into effect in 2013, there were cases that created some uncertainty around excluded property and family property division. We engaged with the government as part of their FLA consultation process and provided submissions on behalf of family lawyers in BC. A number of our suggested changes were incorporated into the subsequent FLA amendments to s. 85.”
Section 211 reports are often used and relied on by the courts to help determine the child's best interest, but there’s no uniform process for preparing and writing the reports. The most common reports are “views of the child” reports and full s. 211 reports. The views of the child reports cover the child’s views of the parents and where they want to live, and full-section reports include information about parenting styles and the home.
CBABC recommendations include having lawyers prepare a summary document or instructions for report writers, for materials to be submitted within a set time, to create professional requirements for who can write the report, and for standardized guidelines on preparing, writing and ordering s. 211 reports.
There’s also an issue of cost. Family justice counsellors can prepare the reports for free, but long wait times exist. Families can get the reports through private assessors, but the cost can range from $15,000 to $30,000. CBABC recommends the BC government hire more full-time report writers and provide tax relief for families using private assessors.
The submissions also touch on formal psychological testing called psychometric testing, which is used for high-conflict cases. CBABC recommends having report writers assess whether psychometric testing is needed before applying the testing and mandatory family healthcare provider involvement. The CBABC recommends creating a roster or having an overarching governing group to oversee the accreditation process and continuing education requirements for report authors.
McPhee said the CBABC decided to put together a series of workshops earlier this year with lawyers, judges, psychologists and social workers to discuss these issues. Report writers were asked what would make things easier, what contributes to the cost of preparing the report and what contributes to the delay. Lawyers and judges were asked what was helpful in the report and what needed to be included.
“This is an access to justice issue,” says McPhee. “If parties can’t get the report or there’s a problem with the report, the children can be adversely affected. The fundamental purpose of s. 211 reports is to represent children and to understand what children need. When parents say the child is telling them different things, these reports can make things more clear.”
The CBABC also focused on family violence in its family law and access to justice recommendations. It called for family violence screening and assessment training for s. 211 report writers and lawyers.
“We need to ensure there are protective measures and be able to deal with people who exhibit coercive behaviour,” says McPhee. “For example, those affected say we need to work on education for people in the system like judges, lawyers and sec. 211 report writers to understand people using those behaviours and protect vulnerable family members.”
