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Difference between revisions of "Children and Parenting after Separation"

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Children and Parenting after Separation (view source)

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Parents, guardians, and the court sometimes need help in deciding what is in the best interests of the children and need to get someone else's input, which might be from a psychologist, clinical counsellor, family justice counsellor or social worker, or from the children themselves.  
Parents, guardians, and the court sometimes need help in deciding what is in the best interests of the children and need to get someone else's input, which might be from a psychologist, clinical counsellor, family justice counsellor or social worker, or from the children themselves.  


The terms that are sometimes used are:
Mental heath professionals may prepare a ''needs of the child assessment'' that talks about the family, the children and the arrangements that are in the best interests of the children. These are sometimes also called custody and access reports, section 211 reports and views of the child reports. Under the old ''[http://canlii.ca/t/ldg3 Family Relations Act]'', these were called section 15 reports. These are ''evaluative'' reports because the professional who prepares them offers an opinion about the best interest of the children.


* Custody and access reports;
Mental health professionals and other people will special training in interviewing children, including lawyers, may prepare a ''views of the child report'' that talks about the views and wishes of the children, without offering an opinion about the arrangements that are in the best interests of the children. These reports are sometimes also called voice of the child reports. They are ''non-evaluative'' because the person who prepares them just reports on what the child has said, without offering an opinion of the child's views or best interests.
* Section 211 reports; or
* Views of the child reports.


=== Custody and access report===
===Needs of the child assessments===


A Custody and access report is a report that is prepared by a neutral third party, usually a psychologist or registered clinical social worker. This is an older term and in most cases, the courts will be making an order for a ''section 211 report,'' which is a report prepared pursuant to section 211 of the ''Family Law Act''.
Section 211 of the ''[[Family Law Act]]'' allows the court to order an assessment of:


The B.C. Supreme Court discussed the purposes of the old custody and access reports in a 2001 case called ''[http://canlii.ca/t/4xfd Gupta v. Gupta]'', 2001 BCSC 649. The Court's comments apply just as well to reports prepared pursuant to section 211 of the ''Family Law Act'':
#the needs of a child,
#the views of a child, and
#the ability of a party to meet the child's needs.
 
A needs of the child assessment or section 211 report can be limited to one enquiry or be a full assessment including an assessment of all three areas (a ''full'' section 211 report).
 
These assessments must be in writing, and the court can make orders as to who will prepare the assessment and how the assessment is to be paid for.  Who will prepare the assessment often depends on what type of assessment is required, and whether there's money to pay for it.
 
Regardless of who assesses the family, if the report is a full assessment, the assessor will meet each of the parents separately and meet them each again in the presence of the children. If the children are old enough, the assessor may speak to the children separately. The assessor may also speak to other people who know the parents and their children, such as friends, family and neighbours, the children's teachers, and any counsellors or therapists.
 
Once the assessment is finished, the assessor sends the assessment to the parties, as well as to the court if the assessment was court-ordered. These assessments can be used in two ways: to encourage settlement; and, at trial, to persuade the court that the parenting proposal of one parent or guardian is to be preferred over that of the other. The person who prepared the assessment can be called to testify at the trial and will be subject to cross-examination as to how they conducted the assessment and reached their conclusions and recommendations.
 
It is important to remember that the function of assessors in court is to present their recommendations and the evidence that they relied on, such as test scores and interview observations, in coming to those recommendations. At the end of the day, it is always up to the judge to decide the parenting arrangements for the children. A Needs of the child assessment is merely the assessor's recommendation to the court based on their particular expertise as an experienced psychologist, psychiatrist, or family justice counsellor. The assessment is not a final determination of the issue.
 
The Supreme Court discussed the purposes of the old custody and access reports in a 2001 case called ''[http://canlii.ca/t/4xfd Gupta v. Gupta]'', 2001 BCSC 649. The court's comments in that case apply just as well to assessments under s. 211 of the ''Family Law Act'':


<blockquote><tt>"The purpose of a [court-ordered report] ... is to assist the Court in determining the issues before it, including the paramount of issues of what is in the best interests of the children. The section itself contemplates that the person doing the investigation must be approved by the Court, and must be independent or neutral. ... The investigation is carried out for the purposes of the Court, and in the best interests of the children, and not those of the partial parents who are embroiled in what is seen as the dispute of their lives, who generally represent the extremes of every issue, and whose evidence is often found to be coloured to say the least."</tt></blockquote>
<blockquote><tt>"The purpose of a [court-ordered report] ... is to assist the Court in determining the issues before it, including the paramount of issues of what is in the best interests of the children. The section itself contemplates that the person doing the investigation must be approved by the Court, and must be independent or neutral. ... The investigation is carried out for the purposes of the Court, and in the best interests of the children, and not those of the partial parents who are embroiled in what is seen as the dispute of their lives, who generally represent the extremes of every issue, and whose evidence is often found to be coloured to say the least."</tt></blockquote>


A more recent case where the court discusses why a section 211 report should be ordered is ''[http://canlii.ca/t/g2nxw Smith v. Smith]'', 2014 BCSC 61.
A more recent case called ''[http://canlii.ca/t/g2nxw Smith v. Smith]'', 2014 BCSC 61 discusses why needs of the child assessments should be ordered.


===Section 211 reports===
For information on to how get a needs of the child assessment, see [[How Do I Get a Needs of the Child Assessment?]] It's located in the ''How Do I?'' part of this resource, in the section ''Other Litigation Issues''.


Section 211 of the ''[[Family Law Act]]'' allows the court to order an assessment of the needs of a child, views of a child, and the ability of a party to meet those needs. A section 211 report can be limited to one enquiry or be a full report including  an assessment of all three areas (a ''full'' section 211 report).
====Family justice counsellors====


Section 211 reports must be in writing and the court can make orders as to who will prepare the report and how the report is to be paid for.
When people cannot afford a private assessment, the court may order that an assessment be prepared by a family justice counsellor. Unless the parties otherwise agree, the Provincial Court will almost always order that a report be prepared by a family justice counsellor. The assessments of family justice counsellors are free.


Who will prepare the report depends on what type of report is required and if there is money to pay for the report.
Because of demand, assessments prepared by family justice counsellors may take up to a year to complete.  
When people cannot afford a private assessment, the court may order that a section 211 report be prepared by a family justice counsellor. Unless the parties otherwise agree, the Provincial Court will almost always order that a report be prepared by a family justice counsellor.


Section 211 reports prepared by a family justice counsellor usually take a number of months to be prepared.
====Psychologists and counsellors====
A section 211 report prepared by a psychologist usually includes psychological testing and assessment.


Regardless of who assesses the family, if the report is a full section 211 report, the assessor will meet each of the parents separately and meet them each again in the presence of the children. If the children are old enough, the assessor may speak to the children separately. The assessor may also speak to other people who know the parents and their children, such as friends, family and neighbours, the children's teachers, and any counsellors or therapists.
Assessments are also prepared by privately retained mental health professionals. Assessments prepared by a psychologists usually includes psychological testing.


Once the assessment is finished, a process that can take anywhere from two months to five months, the assessor sends the assessment to the parties, as well as to the court if the assessment was court ordered. These assessments can be used in two ways: to encourage settlement; and, at trial, to persuade the court that the parenting proposal of one parent or guardian is to be preferred over that of the other. The person who prepared the assessment can be called to testify at the trial and will be subject to cross-examination as to how they conducted the assessment and reached their conclusions and recommendations.
The cost of these assessments can range from $5,000 to $16,000, depending on the number of children involved, where the children and the parents or guardians live, and the amount of work that needs to be done. They can usually be completed in three to six months.


It is important to remember that the function of assessors in court is to present their recommendations and the evidence that they relied on, such as test scores and interview observations, in coming to those recommendations. At the end of the day, it is always up to the judge to decide the parenting arrangements for the children. A Needs of the child assessment is merely the assessor's recommendation to the court based on their particular expertise as an experienced psychologist, psychiatrist, or family justice counsellor. The assessment is not a final determination of the issue.
===Views of the child reports===


For information on to how get a Needs of the child assessment, see [[How Do I Get a Needs of the Child Assessment?]] It's located in the ''How Do I?'' part of this resource, in the section ''Other Litigation Issues''.
Section 37(2)(b) of the ''[http://canlii.ca/t/52cd2 Family Law Act]'' requires the court to consider the views of the child. Section 202 allows the court to decide ''how'' the child’s views are heard and presented.  


===Views of the child reports===
The child's views can be presented to the court in a number of ways, including through the parties' evidence, letters the child might write to the court, interviews with the judge or a lawyer appointed to represent the child. There are plenty of advantages and disadvantages to each. Views of the child reports are a good alternative. Views of the child reports give children an opportunity to express their views to a neutral person who will listen to them and prepare a written report for their parents and the court.


There is confusion between a ''Views of the child report'' (which is a section 211 report) and a ''Voice of the child'' or ''Hear the Child Report''.  
These reports are prepared by trained, neutral professionals, usually a mental health professional, lawyer, mediator or someone else with special training. The professional will interview the child, sometimes more than once, and then write a report summarizing what the child has said, using the child's own words as much as possible. These reports are different than other reports because all they talk about is what the child has said, and they don't provide the professional's assessment of the child's best interests, or even an opinion about what the child has said. They simply repeat the child's statements to the professional.


Section 37(2)(b) of the ''[http://canlii.ca/t/52cd2 Family Law Act]'' requires the court to consider the views of the child. Section 202 allows the court to decide ''how'' the child’s views are heard and presented.  
For information on to how get a views of the child report, see [[How Do I Get a Views of the Child Report?]] It's located in the ''How Do I?'' part of this resource, in the section ''Other Litigation Issues''.


Third parties can interview a child and prepare a ''Views of the child report'' or a non-evaluative ''Hear the Child Report''.
====Family justice counsellors====


A Hear the Child Report presents a child’s views to the court. In British Columbia, the [http://www.hearthechild.ca Hear the Child Society] has a roster of interviewers who prepare non-evaluative reports.
Family justice counsellors can prepare views of the child reports for free, but because there is such a demand for these reports and so few family justice counsellors trained to prepare them, there can be a delay of up to six months before the report is available.


Non-evaluative reports do not evaluate the responses of the child, they merely report what the child says, and often give some indication of what the child is doing as they talk.  The child is not simply asked what they want between their parents. They are asked a wide ranging list of questions designed to give a good picture of what life is like for them, and where the problems may be.
====Psychologists and counsellors====


A ''Views of the child report'' may contain opinion and recommendations in addition to communicating a child's views.
The reports of lawyers and mental health professionals can be prepared as quickly as the reporter's calendar allows, sometimes the same day but more typically within a week. The cost of these reports can range from $500 to $3,000, depending on the number of children involved and the reporter's hourly rate. The website of the BC Hear the Child Society lists the society's roster of trained lawyers and mental health professionals and where they practice.


==Children's caregivers and extended family==
==Children's caregivers and extended family==
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