If you are new to the legal process in Quebec when it comes to family law, you probably are wondering why and if it is important to have an expert opinion in a family conflict. Do judges have to follow the recommendations in the expert’s report? What kinds of questions can the expert ask? Though this process might seem overwhelming, we are here to break it down for you.
In Quebec, in family law cases where children are involved, getting an expert’s opinion is a process available to parents. An expert will make recommendations with respect to custody and access rights to the children and will submit a report to the court when parents cannot come to an agreement. The expert will take into account each parent’s respective parenting skills and the needs of their children.
Who can ask for an expert’s opinion?
A parent, a judge or another person involved in the child’s life can ask for an expert’s opinion.
Who can perform an expertise? How is an expert chosen or appointed?
An expertise must be performed by a professional member of the Order of Psychologists of Quebec or of the Professional Order of Social Workers of Quebec.
If you want an expert’s report, you can do one of the following things:
- 1. Request that the judge to order a psychosocial evaluation by the Service d’expertise psychosociale (psychosocial evaluation service);
- 2. Request a private expert both parties agree on to carry out the evaluation
- 3. The children’s lawyer can also ask that an expertise be ordered.
The expertise can be performed at the request of one of the two parties with either the whole family’s participation (a complete expertise) or one party’s participation (a partial expertise).
In all cases with an expertise, the free and enlightened consent of all parties aged 14 and above must be obtained in writing or noted in the file and the permission to meet the children under 14 must be obtained in writing by the two parents. In a partial expertise, the expert cannot make recommendations on custody and access rights and cannot form an opinion about the other party.
What situation merits an expert report?
Usually, the statements of people involved in the conflict (for example, parents and grandparents), the statements of other witnesses, and sometimes the child’s statements, give the judge enough information to make a decision in the best interests of the child. However, in more complicated cases, an expert opinion might be necessary to help the judge determine the child’s needs and/or to demonstrate to the court the parents parental capacity to care for their children.
Many things can complicate a case. Here are a few examples (https://educaloi.qc.ca/en/capsules/getting-an-experts-opinion-in-family-law-cases/):
- One parent accused the other of sexual abuse
- One parent claims the child is the victim of parental alienation (which means one parent has turned the child against the other)
- One parent claims the other has been physically or psychologically violent toward the child
- Someone other than the biological parents would like to be a part of the child’s life, but the biological parent refuses
What is the main objective of an expertise?
The main objective of a custody expertise for children is to assess the family and provide the court, parents and lawyers with objective information and recommendations in the best interests of the children. Experts must always be impartial and never defend the interests of one of the parties. The expertise aims to assess the entire family situation in order to develop a plan of custody and access rights which, in most situations, will give both parents the opportunity to participate in the children’s education and upbringing.
The expertise is presented in a written report. The expertise must in particular take into account: the developmental needs of the child, their wish, interests and skills of the parents, the strengths, weaknesses and needs of all family members and the family interactions.
Preparatory communications/the orientation process
When communicating with the parties prior to the expertise, the expert must clarify with all parties (possibly during a joint meeting) the expertise process, his/her professional qualifications, costs (if applicable), limitations on confidentiality, and the mutual responsibilities of the expert and the parties. The expert must assure the parties and their counsel that no previous relationship existed or exists currently between him or her and any of the parties. If the expert has had previous relations with one or the other of the parties, however remote they may be, he or she must mention and discuss this to ensure that each party is comfortable and that the objectivity of the process will not be compromised. A decision will be made on whether or not to continue the process after the parties and their counsel have discussed it.
During the orientation process, the party or parties, and possibly their lawyers, must be able to ask all the questions necessary. Communication of important elements between the expert and the lawyers should be transmitted by telephone conference or in writing with copies sent to both parties’ lawyers. Ex parte communications should be avoided.
The expert determines the scope of each expertise, including the people that will be involved in the process.
In general, experts use several methods of data collection. These may include observation, interviews, tests, information obtained from third parties and home visits. It is important that the expert adopts an appropriate evaluation protocol to obtain similar types of information from each parent.
The expert must examine 3 categories:
1) Quality of each parent’s relationship with the child: this component involves assessing the child’s perceptions of each parent, of their respective strengths and weaknesses, of the quality of their emotional connection with the child, and their ability to understand the needs and emotional experience of the child.
2) Quality of the relationship between the parents in litigation: this component involves assessing the nature and level of the conflict between parents, the impact of the conflict on the children and the members of the family, and the parents’ desire to communicate and collaborate together. The assessment should also focus on each parent’s ability to facilitate the child’s relationship with the other parent.
3) Each parent’s ability to ensure the well-being of the child: this component involves assessing each parent’s competency to ensure the development of the child, to distinguish the needs of the child, and to meet the specific needs of the child. The expert must also take into account the parent’s abilities and motivations. However, if certain situations did not allow one of the parents to develop parenting skills or to put them to practical use, the expert must take this into account.
Every expert can use different evaluation methods to determine the appropriateness of a home visit and the circumstances in which children are met. It is preferable that all parties to the dispute, as well as significant third parties if applicable, be evaluated by the same expert. In cases where the expert has reasonable grounds to believe that intra-family violence (including sexual abuse) is present, joint interviews are not advisable.
Each parent must be assessed individually according to comparable expertise terms and conditions. If psychological tests or evaluation grids are used to evaluate one parent, they must also be used for the other participating parent. However, if a particular technique is used to address a specific problem (for example alcohol or drug abuse) that has been raised about one of the parents, it is not necessary to use the same technique for all other adults.
With the written permission of both parents (if the child is less than 14 years of age), each child must be evaluated individually using methods appropriate to their level of development (age, maturity, etc.). These methods may include observation, verbal interviews or interviews incorporating games, and formal testing.
It is inappropriate to ask children to choose between their parents. In most families, the children must have access to both parents after a divorce, and must not be put in a position to have to choose. An expert can obtain information about the child’s feelings, thoughts and desires about their parents through techniques such that are not suggestive, that are not damaging for the child and which do not reinforce loyalty conflicts. Children should be observed with each parent being in as similar conditions as possible. If there is a major impediment to carrying out the observation under similar conditions, the expert must explain the causes in his report and take them into account in the conclusions.
Information from appropriate external sources such as health and social services professionals, teachers and daycare staff must be obtained when deemed necessary. However, information obtained from family members, friends and neighbors is not required and must be treated carefully, considering its potential to create discord for the children. The use of this information will depend on the particular circumstances of the expertise and the expert should use it only if he or she is convinced of its usefulness.
When the expert does a home visit, they must be conducted in a similar manner for each parent. The expert must take cultural differences into account and avoid giving into prejudices. In fact, the economic situation alone should not be a determining factor for the expertise when it comes to custody. The visit to the child’s home must allow for the collection of relevant information on the living conditions of the child and the parent.
New family system (new spouses, new children)
When there is a new family system put in place by one or both parents, the expert must evaluate each of the new spouses and other children, if applicable. He or she will consider, among other things, the quality of the new conjugal relationship, the new spouse’s parenting skills with respect to the child, as well as his or her attitude towards the child’s other parent. The expert should also consider the quality of the relationship between the new couple and the other children, if any, as well as the quality of the relationship between the children themselves.
Assessing each parent
The expert will also assess how each parent’s has adjusted to the divorce and the fulfillment of their social roles. If applicable, the expertise must also address mental and physical health problems, parenting skills, and the parent’s day-to-day life. The impact of a chronic or life-threatening disease must be properly evaluated. The expertise must also take into account the impact of addictions to alcohol, drugs, medication or gambling.
Assessing the child
The expert must also assess each child’s reactions, behaviours and special needs, such as health or developmental problems. The expert must consider the children’s adjustment to school, to friends, to the new family system if applicable, to the extended family, and to the community. The expert must be sensitive to the potential for conflicts of loyalty of children: they should not be asked to choose between their parents. The desires and fears (whether expressed or not) of the children’s relationships with their parents should be taken into account, but should not constitute the only basis on which to make recommendations.
The expert report
The expert report must be written in a clear and concise style so that it can be understood by the court, lawyers and clients. It should convey an attitude of understanding and empathy for all those involved (adults and children) and must be written in a manner that is respectful of all the involved parties.
In preparing the report, the expert should ensure that he or she distinguishes between its own professional observations, opinions and recommendations and professional opinions and conclusions from others sources. The report should include the nature of the mandate, the names of those who mandated the report, the methodology used (the interventions), the documents consulted, the family history that led to the present litigation, description of relevant characteristics of the parents with respect to exercising parental authority, the condition of the child and the description of the quality of the child’s relationship with each of his/her parents and the quality of the relationships of the parents to each other.
The expert’s report must be submitted to the principal(s) or their representative(s). The expert must normally submit his/her report within 90 days of receipt of the mandate. If he/she cannot produce it within this period, it must justify the reasons for this and inform the parties in writing.
Costs will vary depending on whether the court mandated an expert or whether one or both of the parties requested one. If a judge orders a psychosocial evaluation, the service of an expert from the Service d’expertise psychosociale is free. However, if one or both of the parties requested the report, the fees are generally split between the parties, however it may vary based on the parents financial circumstances.
Is the court bound to follow the recommendations of the expert report?
The court has the responsibility and authority to decide the custody and access rights of the children. Given that the expert’s conclusions are only one element of proof that the court can take into account, they are recommendations. Therefore Judges can decide how much weight to give to the expert’s opinion; however, there are often important elements in the report that the courts take into account.
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