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.