Issues in Dispute

Since there are no regulations or other guidelines in BC that govern the content of a s. 211 report, counsel should take care to identify what issues are in dispute and what expertise is required to comment on them. As noted above, s. 211 reports should not be fishing expeditions.
Counsel should ensure that the order sets out the specific issues in dispute that the assessor is to evaluate.

Family Violence

The FLA requires, in s. 8, that family dispute resolution professionals assess if family
violence is present and use this information to inform the types of dispute resolution used to resolve the matter. As explained in Part One, private assessors are not captured in the definition of “family dispute resolution professionals,” and for psychologists and clinical counsellors there are no mandatory guidelines that require them to screen for family violence or address this issue in their reports if they do not feel this is relevant. Social workers are also not captured by s. 8 but do have Standards of Practice that address domestic violence in parenting assessments.

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Many of the women we spoke with indicated that the assessors they spoke to asked no direct or indirect questions about family violence and were dismissive when it was brought up.

Some orders that counsel may consider requesting include:

   • The assessor must screen for family violence.
   • All instances of family violence (disclosed, reported, or known to the assessor) need to be included in the report, with sources. Violence should be clearly described, and its impact assessed. If the assessor finds that the violence is not relevant there should be a clear explanation.
  • The assessor must include information about their training with respect to family violence within the report, either through an attached CV or narrative.

Fact-Finding Role

As outlined in Part One, assessors play a unique fact-finding role and, where the assessor is not cross-examined, the report stands as prima facie truth of the facts contained within it, including hearsay.

The women who were interviewed as part of this project gave frequent examples of instances where the psychologist misreported the information they had provided or failed to include information about family violence. One woman gave an example of the psychologist telling her collateral support that she could not include their information about family violence because it was hearsay, despite the fact that s. 211 reports commonly contain hearsay.

   • Counsel should request that all notes taken by the assessor be disclosed to them. (Where psychometric tests are used, the raw data will not be disclosed to counsel.)

Limitations on Psychological Testing

The use of psychological testing has important implications for clients in terms of both the ultimate recommendations and the cost of the report. We recommend counsel consider seeking the following limitations.

   • If a psychological test is used it must be justified in the specific case and the reasonsfor justification shall be included in the report to explain how the test speaks to “the ability and willingness of a party to a family law dispute to satisfy the needs of a child.”
   • The assessors must clearly include the rationale for selecting the tests, and the method of interpreting the test.

   • The assessor must clearly set out the limitations of the test, including limitations regarding the interpretation of its results.
   • The report should clearly state whether the assessment tool has been developed for use in parenting disputes.
   • The report should clearly state the population used to standardize or norm the test.
   • The assessor should stipulate whether or how the test considers the broader social context of interpersonal violence, including violence against women and children.

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