In Part 1 of this series, Sarah Dargatz wrote about the use of children’s lawyers in high conflict family law disputes in Alberta. Sarah said that hiring a lawyer to represent a child can be an effective way to get information about the child’s views and preferences when the parents cannot agree. In Part 2, Sarah described two special processes that are sometimes used in high conflict cases in Alberta: interventions under Practice Note 7 that are designed to get information about a child or a parent to the court, or to help the parents work together more effectively; and, assessments under Practice Note 8 about the parenting arrangements that are best for a child. Sarah pointed out that, although these processes are often very useful, neither interventions nor assessments are free and both can take many months to complete. In this part of the series, I will talk about how views of the child reports and parenting assessments are used in other parts of Canada.
Views of the Child Reports
Views of the child reports, also called “Hear the Child” reports and “Voice of the Child” reports, are also used in British Columbia, Saskatchewan, Manitoba, Ontario and Nova Scotia, as well as in parts of the United Kingdom and the United States. These reports are used to get the child’s perspective on parenting disputes affecting their interests, as the United Nations Convention on the Rights of the Child requires, and are either evaluative or non-evaluative; the views of the child reports Sarah described in Part 2 are evaluative reports.
Parenting assessments involve one or more interviews with each parent and the child, some observations of each parent engaged with the child and usually some degree of psychological testing. Views of the child reports are written reports describing the child’s views and preferences for the benefit of the child’s parents and the court, and are prepared following one or more interviews with the child. Evaluative reports are prepared by mental health professionals, such as counsellors, social workers and psychologists, and include the interviewers’ opinions about the strength and consistency of the child’s views, or about the likelihood that the child’s expressed views reflect the child’s actual views. Non-evaluative reports are prepared by lawyers and mental health professionals, and others with special training speaking to children, and report the child’s views without offering an opinion about what the child has said.
Views of the child reports are most useful for older children who are able to express themselves and discuss their feelings and wishes. While they’re not a substitute for parenting assessments, they can be very helpful when the issue the court is dealing with is fairly narrow, like a decision about the child’s school or extracurricular activities, changes to the child’s residence or parenting schedule or, sometimes, the meaning or accuracy of something the child has said. These reports can also be used when a family law dispute is being resolved out of court, through mediation, collaborative settlement processes or arbitration.
There is, however, no practice or process for the completion of views of the child reports that is common throughout Canada. A study conducted by myself, Professor Nick Bala and Dr. Rachel Birnbaum in 2014 found that lawyers are commonly retained to prepare non-evaluative reports in some provinces, including British Columbia and Ontario, while views of the child reports, evaluative and non-evaluative, are primarily prepared by mental health professionals in other provinces, including Alberta, Saskatchewan and Manitoba. Lawyers and mental health professionals are equally likely to be hired to prepare these reports by the parents’ agreement, while mental health professionals are more likely than lawyers to be hired by court order.
Views of the child reports are written reports describing the child’s views and preferences for the benefit of the Child’s parents and the court, and are prepared following one or more interviews with the child.The same study found that the cost of a report on the views of one child ranged from $250 to $1,250.Views of the child reports are relatively affordable and they can also be completed fairly quickly. Most of the time, and depending on the availability of the interviewer, views of the child reports can be completed British Columbia, Alberta and Saskatchewan, and from $750 to more than $1,500 in Ontario. In my practice, I charged my normal hourly rate to prepare views of the child reports for parents involved in litigation in the superior court, but offered a special flat rate of $500 for one child, plus $250 for each additional child, to parents in the provincial court.
Lawyers, who perform no testing of the child and offer no opinions on the child’s statements, may be able to produce a finished report more quickly. In British Columbia, it is not uncommon for a report to be completed the same day when a court hearing is underway; I’ve been contacted by a judge at the morning break and asked to interview the child and deliver a report by the afternoon break.
Parenting assessments, also called custody and access evaluations and bilateral reports, are only prepared by mental health professionals. These reports are used throughout Canada to provide the court with an expert opinion on the parenting arrangements that are most likely to be in the best interests of the child. They can provide critical assistance to judges dealing with family law disputes, who usually know no more about the child than what the parents have volunteered in their evidence.
Parenting assessments involve one or more interviews with each parent and the child, some observations of each parent engaged with the child and usually some degree of psychological testing. Assessors will review information related to the family, such as reports from school counsellors, medical or psychiatric opinions and the results of educational evaluations, and will often interview other people who might have special knowledge of the family, such as new partners and spouses, family members, neighbours, teachers and coaches. While views of the child reports typically run from 4 to 8 pages in length, parenting assessments are frequently longer than 25 pages and are sometimes much, much longer. I’ve seen assessments that are longer than 100 pages.
Because of the degree of detail and analysis involved, parenting assessments can take a long time to complete and cost a lot of money. In Alberta, the code of ethics and standards of practice applicable to members of the College of Psychologists are often interpreted as requiring a painstaking investigation of each case, which might include verifying the truth of statements made by a parent, or another witness the assessor has spoken to, double-checking facts and taking other steps to make sure that no stone has been left unturned. Assessors in other provinces are of course subject to similarly high standards but aren’t required to take an investigative approach or go into such depth.
There is, however, no practice or process for the completion of views of the child reports that is common throughout Canada.Perhaps as a result, parenting assessments in Alberta can cost between $20,000 and $40,000 and take from 8 to 12 months or longer to complete. In British Columbia and Ontario, however, parenting assessments usually cost between $6,000 and $15,000 and can be finished in three to eight months, depending on the complexity of the family’s circumstances and whether any travel is required. The cost and length of time required by these reports probably has an impact on how often they are used. A recent study by Zoe Suche of the Canadian Research Institute for Law and the Family looking at court judgments from trials and applications to change final orders found that, in 2014, parenting assessments were considered in 43 judgments from British Columbia, in 38 from Ontario and in only 3 from Alberta. In 2015, parenting assessments were considered in 55 judgments from British Columbia, in 35 from Ontario and in 5 cases from Alberta.
Unlike views of the child reports, parenting assessments are suitable for disputes involving children of all ages. They can be useful in family law cases being decided by the court as well as in disputes being resolved out of court, and often have a significant impact on the outcome of a case. Zoe’s study found that, in 2015, the court adopted the assessor’s recommendation in 63.6% of British Columbia judgments, in 57.1% of Ontario judgments and in 60% of Alberta judgments. They are, however, significantly more expensive than views of the child reports, particularly in Alberta.
In the next part of this series, I’ll write about how parenting coordinators can be used in high conflict family law disputes to help parents implement orders and agreements on parenting arrangements.