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Epstein’s This Week in Family Law | Custody dispute

The use of illegally obtained evidence and hearsay in a high-conflict custody dispute addressed in recent decision.



Epstein’s This Week in Family Law


By: Philip Epstein


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Custody Assessments - Use of Illegally Obtained Evidence and Hearsay - Joint Custody in High-Conflict Case

U. (A.J.) v. U. (G.S.), 56 R.F.L. (7th) 284 (Alta. Q.B.): This is a rather remarkable judgment penned by Madam Justice D.L. Pentelechuk of the Court of Queen’s Bench of Alberta. It demonstrates a thorough understanding of the problems and pitfalls of the adversarial family law system, displays very considerable insight into the role of custody assessors, and demonstrates keen insight into human behaviour particularly in a high-conflict case. This is a must read for all those who engage in custody disputes in high-conflict cases. It is also a case of paramount importance to custody assessors and third-party professionals who come in contact with children of divorcing parents. It is one of the highlight cases of the year.

These relatively high-conflict parents are in a serious custody dispute. They have retained a psychologist to conduct an assessment, or what is called in Alberta “a parenting time/parenting responsibility assessment” previously known as a bilateral custody assessment. Justice Pentelechuk reviews the purpose of an assessment, and the Guidelines promulgated by the College of Alberta Psychologists. In this case, a psychologist conducted interviews with each parent independently, and interviews of each parent with the children. She made observations about the children, administered a battery of psychological tests, and interviewed a number of collateral witnesses. On the face of it, the psychologist did what she is supposed to do. On the other hand, she went much farther than that. The psychologist to a large extent relied on information not proven at the trial. She was presented with a “Divorce Defence Book” prepared by the father, which included 622 pages of pictures, opinions, and commentary on all of the issues. A considerable part of this Divorce Defence Book contained evidence inadmissibly obtained by the father as a result of him having installed spyware on the mother’s home computer. He learned through this spyware that the mother was engaged in sexually inappropriate behaviour through chat rooms on the internet. The Defence Book also provided considerable hearsay evidence from other persons and a wealth of opinion evidence by the father as to why the mother was unfit to parent.

The trial judge found that the psychologist relied on material found in the Defence Book and a considerable part of that evidence was unreliable. The trial judge found that the psychologist’s evidence was seriously undermined during cross-examination. She did not do a thorough investigation, and regrettably, as so often occurs in these cases, the trial took place 2-1/2 years after the assessment. Even the psychologist admitted that the delay between the completion of the assessment and the trial was seriously problematic and undermined the entire report.

Custody assessors will always do their report before trial, and accordingly, they do not have the advantage of seeing the witnesses, hearing cross-examination, and in some cases they do not understand the rules of evidence.

The psychologist relied on information not proven at trial and that would not be unusual. However, when the information she relied upon proves false that significantly undermines, if not destroys, the value of the report.

The psychologist admitted doing psychological testing, but did not treat the results of the tests in a balanced fashion.

The psychologist did not interview some of the more important collateral witnesses. In some parts of the report, the psychologist seem to assess the credibility of some of the information she was receiving from third parties and the judge was critical of her assuming that role. As she noted, “assessing the credibility of witnesses is not the parenting expert’s role that, like other finds of fact, is a function for the trier of fact”.

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