Expert Report Critiques

According to a new B.C. Supreme Court decision, expert critiques and reviews of Section 15 Custody and Access reports should not be admitted as evidence at trial, nor should the testimony of that expert him or herself.   In Hejzlar v. Mitchell-Hejzlar, 2010 BCSC 1139, Mr. Justice Burnyeat questioned, “… whether it was appropriate to have the critique by [the expert] introduced into evidence”, and asked whether, ” … the opinion of [that expert] relevant to the issues which were before the Court?” (at paragraph 4).

At first blush, it might be difficult to understand why a critique of  a section 15 report would not be relevant to issues before the court; namely, the best interests of the child involved. , The court ins Hajzlar, however, astutely pointed out that a critique of a Section 15 Report does not add any evidence on the questions of the children’s interests.   In critiquing reports, a psychologist , “(a) … must limit comments to methods and procedures; (b) … must not state any conclusions unless they have done their own individual assessments; and (c) … must restrict themselves to comments as to their sufficiency and accuracy” (at paragraph 11).  A critique which does not include any independent assessment  gives evidence solely as to the validity or lack thereof of the original report.  That validity issue is not before the courts.  The Judge determined that the proper way to call the validity and reliability of  a Section 15 report into question would be to cross-examine the author of that section 15 report.  He reflected that an expert critique might be an invaluable resource in preparing for such a cross examination.

Mr. Justice Burnyeat did leave open the option of a party commissioning a second custody and access report.  If such a report were prepared, it would certainly bear on the issues before the court and we suggest would likely be admissible.

Posted: August 16th, 2010 under Case Analysis, Custody and Access, Procedure.
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Divorce Ads

I came across an article in the Walrus last week regarding a Chicago law firm which put out a rather risqué advertisement trumpeting, “Life’s short.  Get a divorce”.  This got me thinking about what, as family lawyers, the line is between our facilitating the breakdown of a relationship and our advocating that breakdown.  The advertisement perpetuates the stereotypical “ambulance chaser” image of lawyers, but in this case the chaser actually advocates the accident.   The danger of glamourizing that which is, for virtually everybody involved, a serious and difficult undertaking ignores the complex and often destructive ripples left by that breakdown, not only on the parties, but on the children of the parties.  Divorce is not fun; it is not trivial, and to treat it in a flippant manner disrespects those who treat their relationships seriously.

Posted: August 12th, 2010 under Divorce.
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Court Scheduling

I fully understand the multitude of factors involved in scheduling appearances before Masters and Judges in the Supreme Court.  Cases settle, lawyers argue beyond their predicted times, people arrive with ex parte and short leave applications.  But is there nothing that can be done to improve the system we have?  Clerks are in a better position than virtually anyone else to make educated  predictions as to the length of the cases they are dealing with and could inform the  court registry on a regular basis.   A system of priority could be issued which would at least provide clients with a marginal amount of information on which to base a decision as to whether or not to seek an adjournment.   The current system of having lawyers seated, uninformed, around the court registry, waiting, does not seem to be particularly efficient.

Posted: August 5th, 2010 under Family Court, Procedure.
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