Are Views of the Child Reports Binding?
Are Views of the Child Reports Binding?
Views of the Child Reports or “Section 211” reports are an important piece of puzzle to help the court determine what the appropriate parenting arrangements should be. Sometimes a parent may not agree with the results of a section 211 report and they may feel the report is unfair or biased. What can you do about it? Is it fatal to your case if you receive a negative report?
Views of the Child Reports, while helpful for the court in making its decision, are not binding on a judge. They may provide assistance to the court in determining what is in a child’s best interest, but a judge is not obligated to follow all of the recommendations. In A.R. v. A.V.R., 2016 BCSC 629, Mr. Justice Funt quoted the court’s position on this:
“The Court notes that a section 211 report does not bind the Court. The Court’s overarching duty is to the best interests of the child. In many cases, a section 211 report provides considerable assistance to the Court by serving as its “eyes and ears” with respect to investigating matter and providing advice as to the best interests of a child. “
In a case advanced by our firm (K.P.B. v. K.E., 2018 BCSC 885 ), the parties had received a views of the child support which did not recommend changes to the existing parenting arrangement that left the mother with no overnight visits. The judge adopted portions of the report that indicated both parents had the capacity to care for the children and ordered equal parenting time on a three day rotation. The decision was upheld on appeal in K.P.B. v. K.E., 2019 BCCA 152
Can you prepare a critique report?
Some parties go through the expense of having another psychologist or psychiatrist prepare a critique of the Views of the Child report in an attempt to undermine some of the expert’s conclusions. However, these types or reports are very rarely admitted into evidence or relied on in court. The court will rarely allow critique reports to be used at trial if the sole purpose is to cast doubts on the conclusion reached by the expert who prepared the section 211 report and ask the court to reach a different conclusion.
In Dimitrijevic v. Pavlovich, 2016 BCSC 1529 a father tried to use a critique report to rebut some of the conclusions reached by the court appointed psychologist. The court rejected the report on the basis the sole purpose of the critique report was to cast doubt on the psychologists conclusion.
However, critique reports have been admitted in rare circumstances. In N.R.G. v. C.R.G., 2015 BCSC 1062, the 211 report prepared by the expert had significant flaws and the person who prepared the report did not speak to critical witnesses such as the mother’s psychologist in order to complete the report by the deadline. In that specific case the psychologist who prepared the report was sanctioned by the College of Psychologists for his behavior. The mother’s psychologist prepared a report that was critical of the way the expert conducted the assessment and another psychologist prepared a report who analyzed the raw test data collected by the expert. In general, courts are very unlikely to allow a parent to use a critique report to overcome the conclusions of the expert in a Views of the Child Report.
What Can You Do with an Unfavorable Views of the Child Report?
There are ways of dealing with with an unfavorable views of the child report. Each party under the Supreme Court Family Rules, has the right to have the person who prepared the report come to trial to be cross examined on the report. This gives a party the opportunity to question the person who prepared the report about the information they relied on in preparing in their report in front of a judge who may give the recommendations less weight as a result. Before doing so, it is important to ask for a copy of the expert’s file so you can examine who they talked to and how they prepared their report. A party who wants to have an expert testify must let the other party know in advance of trial and make arrangements with the expert to arrange a time and pay their fee.