Have Family Courts Become Too Dependent on Assessors?

By Janie A. Duncan

When Expert Opinions Begin to Replace Evidence

Family courts face some of the most difficult decisions in the justice system. Judges are asked to determine parenting arrangements, assess allegations of abuse, evaluate a child's best interests, and resolve highly emotional disputes between parents.

To assist with these decisions, courts frequently rely upon parenting assessments, psychological evaluations, custody reports, social worker opinions, and other expert evidence. Experts can play an important role in helping courts understand complex family dynamics. However, an important question deserves discussion: Have family courts become too dependent on assessors?

More specifically, are some courts placing excessive weight on subjective assessments while giving insufficient consideration to objective evidence?

The Judge's Job Cannot Be Delegated

In Canada, judges are appointed to make decisions. Assessors are not. Experts may provide opinions, observations, and recommendations, but they do not have the constitutional authority to determine the outcome of a case. That responsibility belongs to the court.

When judges rely heavily on expert recommendations without critically examining the evidence supporting those recommendations, concerns naturally arise regarding fairness and accountability. The ultimate question should always be: What does the evidence establish?

Not: What does the assessor believe?

The Problem with Subjective Assessments

Many family court assessments are based upon interviews, observations, questionnaires, and professional impressions. While these methods can provide useful information, they often involve a significant degree of subjectivity. Two assessors examining the same family may reach very different conclusions. Two psychologists may offer conflicting opinions. Two social workers may interpret the same behaviour in entirely different ways.

Unlike objective evidence such as financial records, surveillance footage, text messages, emails, school records, employment records, or medical documentation, subjective assessments often depend heavily upon personal interpretation. That does not necessarily make them wrong.

It does mean they should be carefully scrutinized.

Opinion Is Not Evidence

One of the greatest dangers in family court proceedings is allowing opinions to become substitutes for evidence.

An assessor may conclude:

• One parent lacks insight.

• One parent appears controlling.

• One parent demonstrates poor judgment.

• One parent is unlikely to support a child's relationship with the other parent.

These conclusions may ultimately be correct. However, courts should ask an important question:

What evidence supports those conclusions? Can they be independently verified? Are they supported by documents, witness testimony, communications, school records, medical records, or other objective evidence? Without supporting evidence, opinions remain opinions.

The Risk of Confirmation Bias

Assessors are human human beings. They are susceptible to confirmation bias. Confirmation bias occurs when an individual forms an early impression and subsequently interprets information in a way that reinforces that impression. For example, if an assessor develops an initial belief that one parent is uncooperative, later interactions may be viewed through that lens. The same conduct exhibited by the other parent may be interpreted differently. This is not necessarily intentional, is simply a reality of human decision-making. The justice system should recognize this risk and ensure that objective evidence remains at the forefront.

The Cost of Challenging an Assessment

Another concern is the practical difficulty of challenging expert reports. Many families lack the financial resources to retain competing experts. As a result, a single assessment may become the dominant piece of evidence before the court.

When judges place substantial weight on these reports, parties often feel that the assessor—not the judge—has effectively decided the case. Whether or not that perception is accurate, it can undermine public confidence in the justice system.

What the Supreme Court Has Taught Us About Credibility

The principles established in the Supreme Court of Canada's decision in R. v. W.(D.) provide an important lesson.

The Court emphasized that decisions should not simply be based on choosing which witness appears more believable. Judges must evaluate the entirety of the evidence and determine whether the facts support the conclusion being reached.

Although W.(D.) arose in a criminal context, the broader principle is relevant to family proceedings as well. The focus should remain on evidence, not merely impressions.

Objective Evidence Should Matter More

In many family court cases, objective evidence is available.

This may include:

• Text messages.

• Emails.

• School records.

• Attendance records.

• Medical documentation.

• Police reports.

• Financial records.

• Social media evidence.

• Audio or video recordings where legally obtained.

• Surveillance evidence.

These sources often provide a more reliable picture of events than subjective observations made during a limited assessment process. When objective evidence conflicts with an assessor's opinion, courts should carefully examine why.

The Growing Role of Investigations in Family Court

Private investigators are increasingly being retained in family law matters because objective evidence can help resolve disputed allegations.

Investigations may establish:

• Whether a parent is employed while claiming unemployment.

• Whether substance abuse allegations are supported by evidence.

• Whether parenting time is actually being exercised.

• Whether court orders are being followed.

• Whether a parent is cohabiting while receiving support.

• Whether representations made to the court are accurate.

The purpose is not to replace the court's role. The purpose is to provide evidence that can be independently verified.

Accountability Matters

Judges are appointed because society expects them to exercise independent judgment.

Expert assessments can assist that process. They should not replace it.

When courts appear to simply adopt expert recommendations without thoroughly examining the underlying evidence, legitimate questions arise about accountability and fairness. Every opinion should be tested. Every recommendation should be scrutinized. Every conclusion should be supported by evidence.

Conclusion

Assessors serve an important purpose within family law. However, they should remain advisors to the court rather than decision-makers. The responsibility for determining a child's best interests belongs to a judge. Family court decisions have life-changing consequences for parents and children alike.

Those decisions should be based upon proven facts, objective evidence, and careful judicial analysis—not solely upon subjective assessments or professional opinions.

The justice system functions best when experts assist the court, evidence guides the court, and judges make the final decisions.