The following case comment is a good example of process when a parent wishes to challenge a professional’s involvement in a Family Law case. The article relates to arguments about apprehension of bias of a professional retained by the court.
Case: S.M.M. (Plaintiff) v. J.P.H. (Defendant)
- British Columbia Supreme Court, Victoria, British Columbia
- Master C.P. Bouck
Both parties bring cross-applications, each pursuing an order for a custody and access report to be prepared in accordance with s. 15 of the Family Relations Act (FRA), R.S.B.C. 1996, c. 128. The plaintiff desires an update from the author of a custody and access report previously prepared. The defendant asserts bias on the part of that author, and requests to have a new report prepared by an alternative qualified psychologist. The parties are ending a relationship, which lasted nearly a decade, S.M. (Mother & Plaintiff) and J.H. (Father & Defendant). The parties share three children together.
Dr. Elterman’s Report
Dr. Elterman makes the recommendation that S.M. have sole custody of the three children with shared joint guardianship between the parties. Dr. Elterman states that S.M. has concerns about her children while they are under their father’s care. After the report was provided J.H. brought up concerns regarding Dr. Elterman’s objectivity.
S.M. is requesting that Dr. Elterman provide an updated report, costs which are to be shared equally. J.H. suggests that an updated report is unnecessary or not permitted under s. 15 of the FRA. He also has the concern it will not be completed in due time to allow for a critique to be served in accordance with Rule 13-6 of the Supreme Court Family Rules (SCFR). J.H. suggests two alternative doctors because he feels Dr. Elterman’s involvement will not achieve the best interests of his children.
The purpose of an order under s. 15 of the FRA is to act as the “courts eyes and ears”. The investigator interviews the individuals involved, by doing so the investigator gains insight on the relationships, interactions, and dynamics between the parents and the children. The investigator’s duty is to report these observations to court.
The court is not required to follow the recommendations made in the s. 15 report; contents are free to scrutiny at trial. Parties can cross-examine the author at court. The court can choose to reject the author’s recommendations, based on the level of scrutiny: L.E.G v. A.G, 2002 BCSC 970, Falvai v. Falvai 2008 BCSC 79. J.H. uses the decision made in L.E.G. v. A.G.; where there was little weight given to the s. 15 report for several reasons including that more information was received from one party than the other, this was used to argue that Dr. Elterman should not prepare the updated report. Master C.P. Bouck concludes that the apprehension of bias is not sufficient grounds to exclude Dr. Elterman’s continued involvement. The amount of weight that is to be given to the s. 15 report is to be assessed at trial, not on the applications.
J.H. also brings the issue to the surface of whether on a plain reading of s. 15 of the FRA, under the law if an updated report can be ordered from Dr. Elterman. It is stated under s. 15(a) “a person ordered to prepare the report must have “had no previous connection with the parties…”” An updated report can be ordered by law: Badry v. Badry, 2002 BCSC 1006. Master C.P. Bouck states how it makes sense to have the same investigator provide the report for reasons of efficiency. A new doctor would not be starting from the same vantage point as Dr. Elterman and will require more time to understand the dynamics of the family. The main concern is the best interest of the children, and both parents have recognized that the ongoing conflict is causing distress within in their children. Master C.P. Bouck feels it is in the best interest of the children to ensure that all possible efforts must be made in order for the May trial to proceed.
Dr. Elterman is required to provide his report 30 days before trial, unless he is granted exemption from the court under FRA, s. 15(3) and (4). Although, Rule 13-1 of the SCFR seems to be inconsistent with the legislative provision which is listed on page 7, para. 51. Under Rule 13-1 (2) if a party wishes to cross examine the individual who prepared the report, they must complete a Form F43 49 days before the scheduled trial date. Master C.P. Bouck agrees with J.H. that it is unreasonable to complete this form 49 days prior to the trial date when the date of the updated report is unknown.
J.H. also requested to serve his own report in conformity with Rule 13-6 of the SCFR. This report would be considered a critique of Dr. Elterman’s methodology and recommendations. Four decisions were analyzed addressing the question of relevancy or admissibility of s. 15 critiques in the case of Hejzlar v. Mitchell-Hejzlar, 2010 BCSC 1139. After assessing the decisions the court finds that admitting the critiques does not serve the nature and purpose, which is required of the s. 15 report. Cross-examination is the primary method to be used to challenge reports.
Legal Decision by Master C.P. Bouck:
He is not convinced that the court should restrict Dr. Elterman in his investigative process, although the parties are allowed to apply. Master C.P. Bouck did make an order regarding the communications of Dr. Elterman. The court order is listed on page 10, para. 60.
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Lindsay Kenney LLP
This article is intended to be an overview of the law and is for informational purposes only. Readers are cautioned that this article does not constitute legal or professional advice and should not be relied on as such. Rather, readers should obtain specific legal advice in relation to the issues they are facing.