Obtaining Evidence in High Conflict Parenting Disputes, Part 2: Using Experts in Parenting Disputes

Family Law ColumnIn most disputes over parenting time, parents come to reasonable decisions about what is in their child’s best interests.  However, a small percentage of disputes are “high conflict”.  In high conflict cases, the parents have great difficulty communicating, make decisions together, and treating each other with respect.  Each parent may advocate for very different schedules.  High conflict cases may be driven by only one unreasonable parent or by both parents (and sometimes by very involved step-parents or extended family).  Parents may be dealing with mental health issues, personality disorders, family violence, or simply high emotions that cloud their judgment.  Whatever the reason, the court must decide what is ultimately in the child’s best interests.

In Part 1, I discussed the use of lawyers for children.  Another method the court may use to obtain reliable information about a child’s best interests is to get information from experienced and qualified experts, usually psychologists or someone with a master’s degree in social work.  In some cases a child may already be seeing a therapist, however, these professionals must be very careful about the evidence they share with the court, especially if they have a duty to keep information they have received from their child client confidential.  Also, it is a very different task to do therapy than to do an assessment of a child or their situation.  Their governing bodies usually do not permit experts to take on both roles.  The Alberta court has developed best practices for obtaining information from experts for use in family law proceedings.  These are set out in Family Law Practice Notes 7 and 8.

Family Law Practice Note 7: Interventions

Neither Interventions or Assessments are free.  The experts who do this work are highly educated and in demand.  They will charge a range of hourly rates.An Intervention is a forward-looking evaluative or therapeutic process.  It can take many forms depending on what concern is to be addressed.  The type and terms of the specific Intervention will be set out in the order.

An evaluative Intervention will provide information to the court.  A common type of evaluative Intervention is a “voice of the child” report.  The expert canvasses the specific needs and, if the child is mature enough, wishes of the child.  They usually meet with both parents and meet with the child more than once.  The child’s views, often presented with some evaluation by the expert, are set out in a report.

A therapeutic Intervention attempts to work towards resolution, manage conflict, and make changes to an existing family dynamic.  It is an attempt to “fix” what is not working within a family so they can move forward.  Separated parents may learn how to communicate better, how to make decisions together, and how to refocus their conflict to what is best for their children.  The goal of such an Intervention is to reach an agreement about how to resolve their conflict and avoid court altogether.  If the Invention is unsuccessful, the expert involved will report back to the court and may provide some explanation for why the process did not work (for example, if one parent did not attend sessions).

An evaluative Intervention will provide information to the court. A common type of evaluative Intervention is a “voice of the child” report. With the parents’ consent, the court can also direct parents to participate in mediation and arbitration with an expert.  This is often referred to as a “parenting co-ordination” and is a growing field.  In an arbitration scenario, the expert is empowered to make decisions to which the parents are bound.  For example, if the parents cannot decide what school their child will attend, the expert can make the determination rather than having the parents return to court for a judge to make the decision.

Experts working with a family as part of an Intervention do not provide an opinion or recommendation about what is best for the children including recommendations about the ideal parenting time or responsibilities.  They may recommend further processes that could help the family.

Family Law Practice Note 8: Parenting Time/Parenting Responsibilities Assessments

An Assessment is an objective examination of a family by an expert as a litigation aid to assist the court in determining what is in the best interests of a child.  The specific terms of the Assessment will be set out in the order granting it.

The assessor is the court’s expert and their duty is to provide the best objective information to the court.  The expert will make recommendations and give their opinion to the court.  To do this, the expert will generally meet with both parents several times, often in their home, conduct psychological and/or neurological testing, meet with the children with their parents and without, observe the family interacting, consult with professionals such as teachers and doctors, speak with family and friends, review communications between the parties, review police reports and/or child welfare records, and review the materials the parties have filed in the court action.  Experts must be careful to treat each parent fairly, giving each side an opportunity to share their views and respond to any allegations made against them.

The court is not required to agree with the expert.  One, or both parties, can call evidence at a trial contradicting the underlying facts that informed the expert’s conclusions, and may call their own expert to provide an alternate view.The expert will prepare a report setting out what steps they took, a summary of the information they collected, relevant research in the area, and their ultimate recommendations.  This report may provide insight for the parties to reach an agreement about how to resolve their parenting conflict.  In many other cases, the matter goes on to trial and the expert is called to go over their report.

The court is not required to agree with the expert.  One, or both parties, can call evidence at a trial contradicting the underlying facts that informed the expert’s conclusions, and may call their own expert to provide an alternate view.  Justice D.L. Pentelechuk cautioned about the over-use of parenting experts in the case AJU v. GSU, 2015 ABQB 6.  The ultimate decision about what is in a child’s best interests lies with the judge.

Barriers

Cost:  Neither Interventions or Assessments are free.  The experts who do this work are highly educated and in demand.  They will charge a range of hourly rates.  Most will require a retainer be paid up front.  The court order will set out how much each party is required to pay in the first instance.  This amount can be adjusted by a trial judge if the matter is not resolved and a trial proves necessary.

Availability: Most major centres, such as Edmonton and Calgary, have a number of qualified experts to do this work.  However, it can be difficult to find experts in rural areas.

Timelines: Interventions and Assessment often take many months to complete.  This is partly due to their nature but the timelines can also be extended due to limited expert availability, the availability of the parties and other relevant people, and the complexity of the situation.

 

Sarah Dargatz is a Staff Lawyer with the Family Law Office in Edmonton, AB.
About Sarah Dargatz

Sarah Dargatz is a Staff Lawyer with the Family Law Office in Edmonton, AB.


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