TO GET A CLEARER PICTURE
TO GET A CLEARER PICTURE
August 6, 2019 Family Law
Evidence as to the best interests of the child in custody matters is not always easy. The court has broad discretion in its assessment of the evidence presented.
Often, the parents’ and relatives’ testimonies are at the heart of the evidence presented. Contradictory evidence regarding common facts and situations is presented to the court to demonstrate, for example, that the other parent’s parental capacity is in question, that the child is in a conflict of interest, or, in extreme cases, that one of the parties is guilty of parental alienation.
Fortunately, evidence before the Family Division is not limited to contradictory testimonies and tools are in place to enlighten the court as to the decision to be rendered that best protects the best interests of the child.
One of these tools is psychosocial evaluation. The use of an expert psychologist or social worker is common in custody matters, but an application to order an expert opinion is not automatically granted. In addition to the legal criterion of proportionality, criteria specific to this expertise must be respected.
First and foremost, the expert’s opinion must enlighten the family court and not be used to prove one party’s claims. The evaluation will be comprehensive and may touch on various psychosocial elements, such as the parent-child relationship, the relationship between parents, the family system, lifestyle, parental capacity, and the risks associated with certain types of custody.
There are two types of evaluations: a public evaluation provided by the Superior Court’s Service d’expertise psychosociale (psychosocial evaluation service) and a private evaluation from a psychologist who is a member of the Ordre des psychologues.
The Superior Court’s evaluation service is free of charge. The Service d’expertise psychosociale has a team made up of mainly of social workers specialized in the field who will meet the parties and the children, and even travel to evaluate the family’s living environment when necessary. Their report will be extensive and complete, with recommendations in order to enlighten the court in its decision making.
A private psychosocial evaluation will be carried out by a psychologist in private practice. The psychologist will meet with both parties and the children and will then provide a detailed report following an analysis of the social elements and the psychological elements of the family. The psychologist will conduct psychological tests on the parents in order to ascertain aspects of their personalities that have an impact on their parent-child relationship or on their relationship with the other parent. As for the child, the psychologist will also analyze his personality and his way of responding to the conflict and will then provide hypotheses on the psychosocial consequences of one type of custody or another.
The court may also, on its own, require an evaluation from the private Service d’expertise psychosociale if, when the case is presented before the court, it determines that an evaluation would be in the interest of justice and would help the court in the process of rendering its decision. The evaluation will be a joint one, and the parties will not have a say in the selection of the expert.
With a private psychosocial evaluation, there are expert-related related costs, including the cost of the expert’s testimony in court to present his report. The parties will have to agree on an expert and, failing which, they may request to each choose an expert and two reports will then be filed as evidence.
Although counter-evidence is legally possible, it is rarely granted by the court, especially since the new Code of Civil Procedure’s entry into effect in 2016, which clearly favours joint evaluations and the proportionality of the means of evidence used and the procedures in relation to the scope of the dispute.
Bear in mind that the evaluation must assist the court and serve the best interests of the child first and foremost. Therefore, the court will examine the report submitted in advance by the parties, hear the witnesses’ evidence, including the expert witness, and render a judgment. The court is never bound by the expert’s recommendations. The court will consider the recommendations of the report submitted, but is free to use all its discretionary power, assessing the evidence as a whole in order to render its decision. For example, the court may be inspired by the recommendations, retain some and reject others, follow them to the letter, or reject them all completely. The court has a duty to justify its decision and the reasons why it refuses to follow the recommendations of a psychosocial expert whose main role is to guide the court in its assessment of the problem.
It is therefore very important to choose the type of evaluation that best corresponds to the problem presented and the choice of expert. When a private practice expert is called upon to present his evidence, his status as an expert will have to be proven and accepted by the court. His curriculum vitae and experience in the field must convince the court of his ability to provide a high-quality evaluation.
A psychosocial evaluation does not facilitate the evidence presented, replacing ordinary testimonies or documentary evidence. Rather, it completes the evidence otherwise presented and is an additional tool to ensure that a fair decision that respects the best interests of the child is made.
This bulletin provides general comments on recent developments in the law. It does not constitute and should not viewed as legal advice. No legal action should be taken on the basis of the information contained herein.Back to the list of publications - Family Law