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EXPLAINING THE ROLE OF THE ASSESSOR TO YOUR CLIENT

The assessor will assess the parenting of you and the other parent by observing your children, interviewing the children, and interviewing each parent. The assessment will normally include a home visit. The assessor will ask you questions about your life. This interview is not confidential. Anything that you say may be included in the report, which will be given to the other party and the judge.

The assessor is not a personal counsellor, and the purpose of the meeting is not to help you therapeutically, but to gather information. The assessor is required to be neutral and may not make many comments in response to the information you give them. This might be quite
different from other times that you have met with a counsellor.

The assessor will likely ask you to sign a consent form and should explain “informed consent” to you. In the context of a court-ordered report there are some limitations to your ability to withhold consent about how the information is used. For example, you may not want your test results to be included in the report, but the assessor will be able to include them anyway because of the court order.

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DOCUMENTS AND COLLATERALS

[As early as possible, you should discuss with your client what documents and “collaterals” should be provided to the assessors and advise them on what you think the assessor should consider.]

If the assessor requests any documents from you during your meeting, please tell them that you will advise me of the request.

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[Depending on the protocols in your retainer, clients should not provide documents to the assessor directly without consent.]

The assessor may ask you about “collaterals.” These are people who can speak about your children and their needs. You will need to prepare a list with the names and contact information of people who the psychologists can contact as collaterals. Make sure to also include your relationship to the person (friend, neighbour, counsellor, close family member) and their involvement with your children. We will discuss this list before it is provided to the assessor.

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WHAT TO BRING

Bring food and water. You may not have time to run out for a snack, and you may not be provided with water or coffee breaks. You should feel you are able to ask for breaks when you need them. If the assessor refuses to allow you to take a break when you need one, please make a note of this after your appointment. During some tests you may not be allowed to leave for a break so it may be a good idea to ask for a short health break before you start any testing to have a drink, snack or washroom break.

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WHAT TO EXPECT

Try to ensure that you know how long the assessor will be meeting with you when you set up the appointment. In some cases, the length of the session can be up to eight hours. Take note of how long you meet with the psychologist, and how long the psychologist meets with your
children.

The assessor may ask you to complete psychological tests. These tests are often multiple choice and may be administered on a computer or by using a pencil and bubble sheet. If this happens, we may need to hire another assessor to review the results of the tests, since the
assessor will not release the raw data to me or to the court. The assessor may also ask very broad and open-ended questions. If possible, focus on the current matter before the court. Sometimes assessors may ask questions about your personal history — if the assessor’s question does not relate to issues before the court, then be honest but brief.

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BE PROFESSIONAL

Treat the assessor professionally and be courteous. The assessor will report on your behaviour and this information will be provided to the court. Be aware that the assessor may not be courteous or professional towards you and may make negative remarks about your home or
appearance. Again, if this occurs make a note of any such instances.

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CONVERSATIONS ABOUT THE OTHER PARTY

The way you speak about the other parent will be reflected in the report. When you are expressing your concerns, try to provide specific examples of the behaviours that worry you. Speak honestly and avoid broad generalizations such as ‘always’ and ‘never’; instead use
‘often’ or seldom.’ Unless the other parent has been formally and properly diagnosed with mental illness, you should not speculate about whether they are mentally ill or about a diagnosis you think they may have. Even though your ex-spouse may be referred to in formal
ways in the legal system (like the “opposing party” or the “respondent”), it is typically best to simply refer to them by their first name during the assessment.

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CONVERSATIONS ABOUT YOUR CHILDREN

The assessor may also ask you to talk about your children. Try to be thoughtful and detailed. You will want to demonstrate that you understand the children’s individual needs separate from what you or the other parent might want. If you have any concerns about the children try to be specific and accurate especially when describing something that the child did or said.

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EXPERIENCES OF VIOLENCE

If you have experienced violence, it is important to discuss what happened and the impact on you and the children. Do not minimize your experience with violence from your partner. If there are still safety concerns, it is important to explain them. Your survival of violence, whether physical, sexual, emotional, verbal and/or financial, is an important factor for the court to consider. However, you should be aware that many assessors do not necessarily have training in understanding the dynamics of violence, and you may feel that they are not helpful or that they do not believe you. While assessors may not understand, it is still important to tell them if the children have experienced violence themselves or witnessed violence against you or someone else in the home.

After your appointment is over you should take notes as soon as possible about what happened, and what was said. Include any concerns that you had. These notes may be important when we prepare for court if the assessor makes mistakes about what information
you provided when they write their report.

[Ideally you should plan to talk with your client soon after they have met with the assessor to gather information about what happened during the assessment and identify any immediate concerns while their memory is still fresh. Ask your client about the assessor’s conduct and
how much time the assessor spent with them and with their children.]

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Review the Report in Detail

Section 211 reports can be challenged on the grounds that they lack reliability or are factually inaccurate.

We recommend that you review the s. 211 report in detail and, if you contemplate challenging the report, request and carefully review the assessor’s notes as soon as possible. Compare the notes carefully to what is set out in the report — check for inaccuracies, “rewording”, omissions, and statements in the report that are not evidenced in the notes. There will be a charge to obtain these notes depending on the volume of materials, usually a few hundred dollars. The notes will be provided to both counsel/parties and the assessor can be cross-examined on them.​​​

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Conclusion

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Section 211 reports are a common feature of BC Courts but vary widely in terms of their content and quality. While reports may be helpful in some circumstances or with regard to specific issues, they pose special concerns for clients who have experienced family violence.

While these concerns are significantly diminished for reports prepared by family justice counsellors, who have mandatory family violence training and do not use psychological testing, they are heightened in cases where private assessors conduct psychometric tests or
provide extensive opinions based on technical or specialised knowledge.

Despite s. 211 reports prepared by private assessors having all the hallmarks of expert evidence, the safeguards that normally accompany expert witnesses have been stripped from the process. At the time of writing, BC has established no regulations setting out what reports
must contain, no assessor standards that govern best practices, and no requirement that the assessor have expertise in family violence.

Section 211 reports are frequently introduced into evidence without admissibility hearings, and without being required to meet the tests in Mohan and White Burgess, unlike virtually all other expert reports. Assessors are granted a fact-finding role not afforded to other experts,
seemingly based on the wording that existed in BC’s previous family law statute, and a line of cases that was started in relation to family justice counsellors a decade before the modern rules of evidence were outlined by the Supreme Court of Canada.

Once a report has been ordered, BC courts have been extremely reluctant to allow the introduction of competing expert evidence. As a result, the primary means of challenging an unsatisfactory s. 211 report is through cross-examination of an experienced expert witness; this remedy is not only extremely expensive but challenging for many lawyers, and completely impractical for most self-represented litigants.

Without any systemic oversight of private assessors through universal guidelines, regulations or standards on the front end, and few effective means of holding assessors accountable through the introduction of opposing expert evidence or an efficient complaints process on the back end, it is not surprising that our review of reports found that at least some of the reports being produced in this jurisdiction are failing to meet the standards that clients deserve and should be able to expect. Such standards have been developed in other jurisdictions. Without a robust process for scrutinizing evidence at the admissibility stage, it is not surprising that there is ample evidence in our case study and in BC’s recent case law of problematic reports being entered into evidence; such reports may be accepted for the truth of their contents where parties lack the finances or emotional reserves to challenge them. The ability to cross-examine the assessor, in those cases where resources allow, is in no way a substitute for robust system of checks and balances.

As a result, counsel whose client has been subject to family violence or abuse should approach s. 211 reports with great caution and be prepared to build as many of their own safeguards into the process as possible.