Section 211 reports are court ordered reports completed by an independent and impartial investigator. Section 211 reports assess the needs and views of a child in relation to a family law dispute, and the ability and willingness of a party to a family law dispute to satisfy the needs of a child. A person appointed under Section 211 must be a family justice counsellor, a social worker or another person approved by the court. A person who carries out an assessment under Section 211 must prepare a report respecting the results of their assessment, give a copy of the report to each party, and give a copy of the report to the court.
Section 211 reports permit the court to understand what is in a child’s best interests. They also allow the court to be not only familiar with the current social science respecting child development, but also an appropriate route to take when determining a case. Section 211 recommendations are informed by testing, observations and interviews of all the relevant people involved in a family law proceeding. The court; however, is not obliged to accept the opinions or recommendations of a Section 211 report; the court will not abandon its role as the final decision-maker.
In M.F.W. v. M.A.H., 2020 BCCA 284, the British Columbia Court of Appeal recently reviewed the law surrounding Section 211 reports. In particular, the appellant father argued the court was required, as a matter of law, to follow the recommendations of an assessor appointed under Section 211 unless the assessor had been cross-examined at trial. The Honourable Madam Justice Newbury rejected the appellant father’s argument and affirmed that judges should not abandon their decision-making roles in favour of an assessor’s recommendations. Newbury J.A. further rejected the argument that a litigant who opposed an assessor’s report was obliged to cross-examine them. She noted that each party’s right to call the assessor to the witness stand was an “opportunity” – not an “obligation”. In light of an assessor’s report, the trial judge remains best suited to hear evidence with which they can ‘assess’ and determine a child’s best interests to reach different conclusions.