Sep 13, 2016

Admissibility of Rebuttal Reports on Parenting Issues in Family Law Matters

Dimitrijevic v. Pavlovich, 2016 BCSC 1529 (CanLII)

A voir dire in the recent case of Dimitrijevic v Pavlovich addressed the admissibility of a "critique report" on the purported deficiencies of a parenting assessment tendered to assist the court in resolving the parties' dispute on the post-trial care of their children. The judgment on the voir dire provides both a helpful review of the law on such reports and a stinging critique of the approach taken by the author of the report at issue.

Parenting assessments, also known as "custody and access reports," "bilateral assessments" and a few other terms besides, are expert reports prepared by psychologists, clinical counsellors and social workers that make recommendations as to the optimum arrangements for the care of the parties' children, and typically involve interviews with the parties and collateral witnesses, reviews of school, medical and other relevant reports, observations of the parties' interactions with the children and some degree of psychometric testing. These assessments are unique to family law matters in that the expert is usually treated as the court's expert rather than a partisan advocate and, because of the court's concern about exposing children to an excess of testing and evaluation, they cannot be engaged unilaterally. As a result, a party dissatisfied with the results reached in a parenting assessment usually has only two avenues of recourse: apply to court for a fresh assessment, on the basis of the expert's bias or incompetence; or, ask another expert to provide a rebuttal to the assessment. For obvious reasons, the second approach is more popular, however rebuttal reports like these are normally very limited in their potential content as the expert is restricted to commenting on the suitability, adequacy and limitations of the first expert's methodology, the extent to which the first expert's conclusions are supported by the facts, and so on.

The law in British Columbia on such reports has been distinctly unfavourable since the 2010 decision in Hejzlar v Mitchell-Hejzlar, in which Burnyeat J. expressed scathing disapproval of the rote acceptance of rebuttal reports without enquiry as to their relevance or admissibility. Burnyeat, among other points, observed that the author of a parenting assessment serves as "the eyes and ears of the court," offering a neutral and independent opinion, whereas the author of a rebuttal report serves as "the agent of the parent unhappy with the recommendation," attempting to weaken the credibility of the other expert rather than offering substantive comment on the matters at issue. If a party is unhappy with a parenting assessment, the party is better served by challenging the expert in cross-examination than ordering a costly and often unhelpful rebuttal report.

In Dimitrijevic, the father retained a well-known British Columbia psychologist and parenting assessor to critique an assessment prepared by another well-known British Columbia psychologist and parenting assessor, and sought permission to have the rebuttal report admitted into evidence as well as the oral evidence of its author. The mother objected.

Kent J. reviewed Hejzlar and the case law which followed, for the propositions that rebuttal reports are normally inadmissible and:

  • may be little more than an aide memoir for counsel examining an assessor;
  • may be submitted for reasons contrary to the purposes for which parenting assessments are prepared;
  • may be little more than argument presented in the guise of expert opinion;
  • may be unhelpful where the authors have not conducted independent testing or analysis of the data;
  • may not be relevant to the matters at issue;
  • may not meet the test for admissibility set out in R. v Mohan;
  • may have limited probative value; and,
  • may do little more that increase the expense and animosity incurred by the parties.

Kent then reached the following important conclusions.

  1. Although there is no legal rule that rebuttal reports must never be admitted into evidence, the court must review such reports to determine their admissibility and such reports will "only very rarely ... be necessary or appropriate."
  2. This review should be conducted by voir dire as soon as possible in the trial, and the practice of receiving such evidence on a conditional basis should generally be avoided as a result of the prejudice that may redound to the detriment of the parties.
  3. Rebuttal reports that are admissible should be introduced only following cross-examination of the parenting assessor on all of the deficiencies alleged to tarnish his or her report.

In the case at hand, Kent observed that the author of the rebuttal report "has not conducted any testing on his own, whether of [the father] or others, nor has he reviewed and opined on the raw data generated by [the assessor's] testing," as a consequence of which "he thus has nothing positive to offer the court in coming to grips with the issues to be decided in this case." The rebuttal report was found to be inadmissible.

With respect to the approach taken by the author of the rebuttal report, Kent J. commented that:

"[42] Some of [the author's] observations represent unscientific advocacy of the worst sort. In the last paragraph of his report, he accuses [the assessor] of either 'misleading the court' or being 'unaware of the appropriate standards and guidelines to be following in conducting his assessment'. That is an outrageous accusation to make against a professional colleague who, like [the author], has many years of experience in this area and who has been qualified on numerous occasions to provide expert evidence in the B.C. courts.

"[43] In another paragraph, [the author] notes that [the assessor] discusses in his report the results of a certain MSCEIT test without that test having been included in the list of tests administered on page 2 of the report. What, one might rightly ask, is the purpose of any such observation other than to cast unprofessional aspersions? This is not conduct to be encouraged.

"[44] As was the case in Hejzlar v Mitchell-Hejzlar, it appears the primary purpose of [the author's] critique is to cast doubt on the conclusions reached in an attempt to persuade the court that contrary conclusions should be reached (without identifying what they might be) and to lead the court to believe that [the author] might well have come to a different opinion. There is simply no benefit to the court, or the trial process as a whole, to this sort of evidence."

Dimitrijevic, it seems, is a decision that should also be noted by persons other than members of the family law bar.