The 411 on Section 211 Reports under the Family Law Act

Section 211 reports are reports prepared by approved and qualified persons to help the court decide what the best interests of the children are for any orders. The “best interests of the children” are the foundation of any decision involving children under the Family Law Act. Any time a court makes a decision about parenting time for children, the Family Law Act requires that the court ONLY consider the best interests of the children. Courts may rely on reports prepared by approved persons in assisting them to determine what the “best interests” of the children. These reports, made under section 211 of the Family Law Act are often called “211 Reports”. This blog will help explain what they are and how they are used.

The starting point is the Family Law Act which requires the court to act ONLY in the best interests of the children in making orders. The relevant section is reproduced below:

Best interests of child

37 (1)In making an agreement or order under this Part respecting guardianship, parenting arrangements or contact with a child, the parties and the court must consider the best interests of the child only.

(2)To determine what is in the best interests of a child, all of the child’s needs and circumstances must be considered, including the following:

(a)the child’s health and emotional well-being;
(b)the child’s views, unless it would be inappropriate to consider them;
(c)the nature and strength of the relationships between the child and significant persons in the child’s life;
(d)the history of the child’s care;
(e)the child’s need for stability, given the child’s age and stage of development;
(f)the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities;
(g)the impact of any family violence on the child’s safety, security or well-being, whether the family violence is directed toward the child or another family member;
(h)whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child’s needs;
(i)the appropriateness of an arrangement that would require the child’s guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members;
(j)any civil or criminal proceeding relevant to the child’s safety, security or well-being.

(3)An agreement or order is not in the best interests of a child unless it protects, to the greatest extent possible, the child’s physical, psychological and emotional safety, security and well-being.

(4)In making an order under this Part, a court may consider a person’s conduct only if it substantially affects a factor set out in subsection (2), and only to the extent that it affects that factor.

If family violence (either psychological or physical) has occurred or is alleged to have occurred, under section 38 of Family Law Act the court must assess it in determining the best interests of the children.

Even with guidance from the Family Law Act on what the court should consider, determining the best interests of the children can be extremely difficult. Under section 211 of the Family Law Act, in order to determine the right parenting arrangement, the court may appoint a person to assess the needs and views of the child and the ability and willingness of a parent to satisfy those needs. A report often includes recommendations about how the parenting time should be structured and how decisions about the children should be made going forward.

Any person appointed must be a family justice counsellor, a social worker or another person approved by the court and must not have had any previous connection with either party (unless both parties agree otherwise).

The person tasked with preparing the report must carry out an assessment, prepare a report, give a copy of the report to each party and the court. The cost for preparing the reports can range from a few hundred to thousands of dollars. Under section 211(5) the court can require one party to pay all, part or a portion of fees to do the assessment.

While courts give considerable consideration to the recommendations in section 211 reports, they are not obligated to follow it and have discretion to depart from them in certain circumstances. Section 211 reports are described as a “useful tool that can assist the court” but it is not determinative and not a substitute for the court’s own assessment of the evidence. The court is allowed to come to a different conclusion than the report based on the evidence at trial. A notable family case, A.P v. J.C., 2018 BCSC 1381 describes the role of a section 211 report:

[18] The s. 211 author may provide an opinion, but it is for the court to decide the matters at issue: Johnson v. Skillen, 2009 BCSC 209 (CanLII), at para. 8; I.J.G.P.G. v. K.M., 2016 BCSC 1072 (CanLII), at para. 100; A.L. v. L.W., 2017 BCSC 964 (CanLII), at para. 8. The court must not abdicate its role in favour of the recommendations made: King v. Borserio, 2018 BCCA 308 (CanLII), at para. 76. Regardless of the information that goes to the report writer, the court ultimately has the discretion to review the background information presented in the report, carry out an independent assessment based on the evidence at trial, and come to a different conclusion as to the best interests of the child: K.B. v. J.B., 2015 BCSC 704 (CanLII), at para. 10, citing T.C. v. S.C., 2013 BCPC 217 (CanLII), at paras. 143-144; Plant v. Kempton, 2011 BCCA 171 (CanLII), at para. 11.