Imagine leaving a marriage after years of physical and emotional abuse, only to have a psychologist disbelieve your story and recommend custody of your kids to your ex spouse.
Imagine inviting a stranger into your home during one of the most stressful and difficult times in your life, in order for them to assess your parenting skills.
Imagine being a layperson in court without a lawyer and trying to cross-examine a psychologist on their assessment of your mental health, or having a custody assessor criticize you for your cultural traditions.
These are some of the stories women shared with West Coast LEAF regarding their experiences going through custody and access assessments in family law cases. The question is: how can lawyers, judges, courts, and other institutions ensure custody assessments are used effectively without reaping injustice upon parents and children?
On July 24, West Coast LEAF released a new report entitled “Troubling Assessments: Custody and Access Reports and their Equality Implications for BC Women.” The report examines what are commonly referred to as “s. 15 reports,” which are expert evaluations of parenting used by the courts in custody and access disputes. Specifically, the report focuses on the impacts of these assessments on women and makes recommendations aimed at ensuring the reports are unbiased and contribute to fair resolutions that are best for children and their families.
Custody and access reports provide the court with a professional’s evaluation of the parenting capabilities of divorcing spouses involved in litigation over the custody of children. The reports are conducted by a variety of professionals, including family justice counsellors and psychologists. When they are conducted with sensitivity and informed by a strong understanding of the dynamics of family violence, custody and access reports can illuminate important issues between parents and their children and help judges make decisions that are in everyone’s best interests.
However, the concerns that came to light in the course of research suggest that there are fundamental and systemic problems with the way these assessments are being prepared, and the ways in which they are being relied upon by the courts.
This report was the product of two years’ worth of research and writing, and received input from women involved in family law disputes, family law lawyers, advocates and service providers, family justice counsellors, and others. The conclusions show that in B.C. there are no binding guidelines or standardized training for assessors on key issues such as violence against women and cultural diversity. Consequently, the disregard paid by some assessors to women’s experiences of violence and abuse by their spouses, and the lack of culturally sensitive procedures and language-appropriate testing point to systemic flaws in the current approach.
Women and advocates described how the abuse they or their children were experiencing was disbelieved, how their cultural practices were judged according to western models of parenting, and how non-native speakers were told they must speak English during testing and evaluations.
In addition, demand for publicly funded assessments consistently outstrips supply, leading to significant delays. At upwards of $8,000, the cost of a privately prepared assessment (particularly by a psychologist) is out of reach for most families.
Further, many cases involve a “counter” report — where one parent is dissatisfied with the results of the assessment, they can hire a second assessor to counter the findings of the first. This, of course, doubles the costs.
Family justice counsellors prepare publicly funded reports, but are wholly underfunded to do so — reports take six months to a year to complete, during which time the custody dispute is on hold and the well-being of children hangs in the balance. As Justice Grant Burnyeat said in the 2002 B.C. Supreme Court ruling A. (D.) v. A. (J.): “The best interests of all the children of this Province are not met by these Reports only being available in a timely manner where the parents of those children can afford to pay for the cost of preparation of the Reports.”
The key recommendations of the LEAF report are:
1. Government should mandate universal standardized training for assessors, with particular emphasis on the dynamics of family violence and cultural sensitivity;
2. Government should create binding universal directives for assessors to ensure unbiased, fair, and accurate assessments for all families, including women experiencing violence and non-English-speaking mothers;
3. The College of Psychologists of British Columbia should institute mandatory training on the dynamics of violence against women, and introduce specific rules on violence and cultural diversity into its Code of Conduct;
4. Government should increase resources for legal aid and family justice counsellors to ensure equal access to timely and well-reasoned reports for all; and
5. The B.C. legislature should amend s. 211 of the Family Law Act by directing assessors to consider violence within the relationship when assessing parenting ability. This would bring it into line with the rest of the new act’s welcome emphasis on family violence.
The report also cites the recommendations of the retired B.C. Supreme Court justice Donna Martinson, who says judges should be asking themselves the following questions before ordering an assessment:
· What are the real issues in dispute, and is an expert necessary to resolve them? If so, what is the specific purpose of the report?
· What type of expertise is needed to effectively address the issues that arise, and does the expert being considered have the specific expertise needed?
· Does the expert have the appropriate cultural competence needed?
· Is the expert neutral, without any preconceived, biased notions about parenting roles?
· How will the views of the child be considered?
· Is psychological testing required? If so, what kind of testing and what is its purpose?
· If translation is required, how will it be effectively provided throughout the process?
· How will the privacy of the report’s contents be assured?
Women’s equality is not served by the regime governing custody and access reports as it currently stands. A rights-respecting system of family law — one that promotes best outcomes for children and families — must invest in women’s equality. Addressing these concerns and implementing the reforms recommended in this report will bring us one step closer to this critical goal.
Kasari Govender is the executive director of West Coast LEAF (Women’s Legal Education and Action Fund). In addition, she represents the organization in interventions in equality rights litigation such as the polygamy reference and was the co-author of the 2010 report entitled “Rights Based Legal Aid: Rebuilding BC’s Broken System.”