Voice of the Child in Court Proceedings

By Linda Tippett-Leary[1]

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The tall, blond boy walked into my office and sat down. Although twelve years of age, I knew that he was functioning at a level significantly lower than that, so I had to learn how to talk to him. No big words, no big phrases, just a straight shooter.

The first thing I needed to do was figure out if he understood my role. I asked him what I ask nearly every child I meet - did he know why he was coming in to see me? He said no. I joked and said that nobody ever knows why they are coming in to see me!

I then asked him if he knew what a lawyer was. At first, he looked confused and then he smiled and I could see the recognition in his face, just like he had found a long lost friend. "Ooh yah. The liar guy from Liar, Liar was a lawyer".

Guilty. The main character in Liar, Liar was a lawyer. Although I was somewhat devastated to be compared to the other word that starts with "l" and ends with "r", I acknowledged that he was right and that he got the idea.

This is not intended to be an exhaustive outline of case law and articles about the voice of children in Court proceedings. In fact, much has already been written on this topic. This article is, rather, an attempt to highlight the main points and to give some tips from my experience as a practitioner often representing children.

As you know, every jurisdiction in Canada is different. My practice and experience are based in Nova Scotia . I have tried to render this article relevant to all jurisdictions in Canada and I have included some information specific to other provinces and territories. Please note that although the jurisdiction-specific information was current at the time this article was written, relevant statutes, regulations and policies in your jurisdiction should be reviewed to ensure you have the up-to-date information.

Acknowledgements

I want to recognize the hard work of my amazing assistant, Storm Hiltz, in helping me with this research and for making many inquiries across the country to add information from the different jurisdictions. I am sure that any pearls of wisdom of hers. Any errors are undoubtedly mine.

Finally, I would be remiss if I did not thank the many children whom I have the privilege to represent. I learn from them every day. Some of the things I have learned are practical, like the fact that dragons are vegetarians and we all have worried needlessly: a twelve year old client informs me that they like carrots, potatoes and corn. Others have taught me about the importance of viewing a Court proceeding from their point of view and the need to realize just what this is like for them.

In her article, " Access to Justice for Children: The Voice of the Child in Custody and Access Disputes "[2] Christine D. Davies, Q.C., quotes the Honourable Alastair Nicholson A.O., Chief Justice of the Family Court of Australia, who referred to separate representation of children "a Cinderella area of law". I am one "Cinderella" who greatly enjoys what she does.

Why is it important to hear the child’s point of view?

"Well, what happens in Court anyway?" my ten year old client asked indignantly. Although a very small boy who looked even younger than his age, it was clear from the start that this was a child who wanted the facts straight up. I was trying to convince him that the access worker he was so upset with carried little influence in the decision- making process. I described the whole thing as a totem pole and said that the access worker was very low on it. "Well, who’s up there?" he asked. "The judge", I replied. "Well, how does the judge decide?" and so I told him. "Well, who’s second in command?"

While I was amused with his inquisitive nature, I was struck by how much interest he had in everything that happened in Court, how important it was for him to be heard and, most importantly, how critical it was that the Court and his parents understood exactly how any decisions and delays directly affected him.

A child is clearly an interested party. Much information goes before the Court in affidavits, assessments and home studies. Much evidence is presented about a parent’s likes, dislikes and wishes, and about a child welfare agency’s plan and policy. Yet where does the child’s view fit into all of this? How much does the Court hear about a child’s likes, dislikes, interests, feelings and needs?

Statutory Duties

One could argue that any interested party, including a child, should have the opportunity to provide input to a Court. In Nova Scotia , for example, the preamble of the Children and Family Services Act[3] states that children, to the extent that they are capable of doing so, are entitled to be heard and to participate in the processes that lead to the decisions that affect them. Similar provisions exist in other statutes across Canada and the United States . The basic right of a child to be heard in any proceeding affecting the child is clearly enshrined in Article 12 of the United Nations Convention on the Rights of the Child (CRC), ratified by Canada in 1991.[4]

In 1997, a special joint committee was established by the federal government to look at the issue of child custody and access with a view to finding a better way to address the outcomes for children who are the subject of (and subject to) family law. A report[5] was released in December 1998, containing a number of recommendations including that the Divorce Act be amended to actually make reference to relevant principles in the CRC. One of its recommendations was that it was in the best interests of children to have an opportunity to be heard when "parenting decisions affecting them are made".[6]

The Committee heard many witnesses offering numerous examples of the inadequacy of the current system. Some of these witnesses were children. The wishes and preferences of children in family law disputes are clearly important to policy makers. The real question, therefore, is how, not if, the child’s voice can be heard in Court.

The child’s perspective in context

"Well since it costs $15,000.00 for every minute in Court, why don’t you just tell the judge to save some money and send me home?"

It’s hard to argue with that logic. I have discovered while representing many children that the information they want from me is often quite sophisticated. They want to know more than where and with whom they will live: they want to know what goes on in Court. They also often want their ideas and concerns to be heard.

In Gordon v. Goertz[7] the Supreme Court of Canada said that in a custody and access application, the focus is on the best interests of the child, and one consideration of the best interests is the child’s views. However, while some children are able to express their feelings quite readily, others find it very difficult. Finding an effective way for a child’s voice to be heard in Court has always been problematic. A review of the case law shows that the attempts to accomplish this have been very inconsistent.

Courts generally consider more than what a child wants: Courts examine the context. For example, a child might prefer living in a home where there are few rules and little discipline. Alternately, a child may feel responsible for a parent’s loneliness or sadness and take on the burden of caring for that parent. Children who are not in the care of a parent may love and miss that parent but may appreciate the structure and stability of their current residence. I invite the reader to consult the article "If Wishes Were Horses, Then Beggars Would Ride"[8], by Judge R. James Williams (as he then was) for definitions of "wish", "want", "need", and "prefer".

In his paper, Justice Williams stated:

It would be, from a Judge’s point of view, easier to deal with children’s wishes and preferences if there was a rule or statute that simply stated that a child’s wish or preference was dispositive of custody access cases.[9]

This is not, however, the case. In Johns v. Hinkson[10], the Court wrote:

There is no principle of law that the wish of a child is absolute and in itself determines the issue of custody. Such an approach would ignore the statutory mandate to ‘...take into consideration only the best interests of the child’. In my opinion the correct approach is to take into account all the circumstances, including the wish of the child. The weight to be given to that wish will depend on a number of things including the maturity, experience and age of the child. The last will frequently, but not always, bear some relationship to the child’s maturity. However, in all instances the wish of the child must correspond with what is in his or her best interests if it is to be adopted and put into effect.

Somewhat different considerations may apply in the instance of an older child who will act according to his or her own views despite any Court order. In such circumstances the Court order becomes incapable of enforcement and such a situation is avoided by the Court declining to make any order.

Even in a case where there is an order, involving an older child, "incapable of enforcement" as Justice Gerein stated above, the Court still sometimes finds creative ways to put their point across. The recent Nova Scotia Case of MacNeil v. MacNeil (2005 NSSC 275), involved a situation where a father had little or no relationship with his child, which Justice Goodfellow attributed to the actions of the mother in sabotaging any attempt made by the father to access the girl. The Justice sharply criticized the mother’s conduct and stated that if it did not improve, he would consider forwarding a copy of his decision to the child on her sixteenth birthday so she "will be able to appreciate that what has transpired has occurred due to the failure of her mother".

Significance of the wishes of a child in family law

Criteria that judges should consider when assessing the significance of a child’s wishes are summarized by Professor Nicholas Bala in "The Voice of Children in Canadian Family Law Cases" and include the following:

  1. whether both parents are able to provide adequate care;
  2. how clear and unambivalent the wishes are;
  3. how informed the expression is;
  4. the age of the child;
  5. the maturity level;
  6. the strength of the wish;
  7. the length of time the preference has been expressed for;
  8. practicalities;
  9. the influence of the parent(s) on the expressed wish or preference;
  10. the overall context; and
  11. the circumstances of the preference from the child’s point of view.[11]

When representing a parent, these criteria are very helpful guiding principles in ascertaining whether a child’s wishes should be specifically sought and how they are to be presented to the Court. These criteria can also focus the parent on the child’s perspective.

Options for child’s voice to be heard

A. Judicial interview

"Well, can I talk to the judge?" After grabbing the gavel on my desk and banging it down, "I declare that so-and-so shall have a laptop."

Although it is rare, some of the child clients I represent do express a specific interest in talking to the judge. Sometimes direction from a judge would be helpful to some children, especially older children. However, in my practice, I have only seen a judge interview a child once. Judicial interviews with children in Canadian Courts remain rare. According to the case law, it appears that most judges have concerns about the use of the judicial interview.

Madam Justice Claire L’Heureux-Dubé and Madam Justice Rosalie Abella, expressed the view that, essentially, a judicial interview should be used as a last resort only because this practice could interfere with a judge’s role as an impartial trier of fact.[12] Furthermore, judges may not be trained to question children as noted in Stefureak v. Chambers[13] by Justice Quinn who stated,

It is doubtful that very many judges, because of a lack of training in interviewing children, would agree to do... a chambers interview is not feasible at bar, as I have no training or known skill in interviewing children.

For practical purposes, the Stefureak decision provides an excellent summary of all of the ways of putting a child’s view before a Court.

B. Child as witness

  • "I don’t want to go to Court."
  • "I don’t have to see a judge do I?"
  • "When can I go to Court?"

Most of the children I represent do not want to be present in Court during the proceedings, but do want the judge to listen to them - somehow.

From my experience and my review of the case law and literature, judges generally frown upon children’s presence in Court for fear of resulting emotional damage, pitting them against a parent or making them feel like they were somehow responsible for the decision. A recent and vivid example is found in Ezurike[14] where the father served subpoenas on his 19 year old daughter and 14 year old son to testify at the parenting trial. The children’s reactions were, perhaps, exactly what we would expect. Daughter Didi was "clearly uncomfortable in the role of a witness in a trial between her parents and appeared guarded in her responses" while, son Abuci "seemed more comfortable than his sister and was very diplomatic", crediting his parents approximately "equally" for their efforts.[15]

Justice Dellapinna’s response to this testimony was also as we would expect:

  • 4. The Respondent appears incapable or at least unwilling to put the children’s needs before his own. During the course of the trial numerous examples of this were presented. To determine whether he should call either of his older daughters as witnesses, he provided them with a printed questionnaire for them to complete. The top of the form read: "Your comments below is (sic) required to help establish the roots of the problems in the family." At the conclusion of the questionnaire they were to sign the form below the sentence: "I verily believe, to be (sic) best of my ability and knowledge, the above to be statements of the facts as I observed them." He served subpoenas on Didi and Abuchi to require their attendance at the trial. In spite of the Court’s urging not to involve the children he called both of them as witnesses. Even when Didi displayed considerable discomfort, he continued to ask her questions.

  • 5.  The Respondent regularly involves the children in adult issues as evidenced by the questionnaire form and his insistence that they testify at the trial.[16]

This attitude is not the case, however, in all jurisdictions, a notable example being Quebec . Article 34 of the Civil Code of Quebec[17] states:

The Court shall, in every application brought before it affecting the interest of a child, give the child an opportunity to be heard if his age and power of discernment permit it. (Emphasis added.)

This was a variation of the former Article 31.15 which stated:

The Court may every time it takes cognizance of an application affecting the interest of child, give the child an opportunity to be heard. (Emphasis added.)

I invite the reader to consult Sylvie Schirm’s helpful article on the application of this provision in Quebec Courts.[18] Her paper also provides a very useful outline on how to prepare children to testify or be present in the Courtroom.

The article by Nicholas Bala et al. mentioned above, contains another useful analysis of children as witnesses,[19] discussing different approaches on how a child’s voice can be put before the Court and outlining the strengths and weaknesses of each approach.

On one particular occasion, during my early days of representing children, a particular child adamantly wanted to put her statement before the Court. We (the judge and counsel) respected her wish by agreeing in advance that I would file a simple affidavit on her behalf, written in age-appropriate language. During the process, I would put the child on the stand to introduce her affidavit but there would be no cross examination. However, although the practice in each jurisdiction differs, the last time I mentioned putting an affidavit from a child before the Court, the judge looked at me as if I had two heads. In other words, any procedure to place a child’s views before the Court should be flagged very early. There should be an agreement as to how to proceed and assistance should be obtained from the judge at the earliest opportunity.

Note, however, that although a court may not look favourably on a child giving testimony, that does not necessarily mean that they will not allow it. During a recent trial, I expressed great concern about a party’s plan to call one of the children, a sixteen year old, as one of his witnesses, especially as the child was not being called just to express his wishes (these had already been given to an assessor) but to directly refute some of the allegations in my client’s affidavit.

The justice in this case expressed great concern about this but felt that she could not use her discretion to keep the child off the stand and he was subpoenaed. It remains to be seen how this will affect the outcome of the case.

C. A letter, statement from a parent or other out of Court statement

Sometimes a parent will want to introduce a letter written by the child attached to an affidavit filed by the parent. From my experience, judges generally do not approve of this approach because of the inappropriateness of putting a child in a position to write such a letter. For example, Milleker[20] involved an eight year old child who was not old enough for a "Voice of the Child Report".[21] The petitioner in Milleker tried to present a letter to the judge. The letter had apparently been written by the child. The judge did not allow it and, in fact, indicated that the Court was saddened to see that the letter had even been written. Affidavits were tendered by two other children in Milleker and the Court expressed disapproval that the children had been involved in their parents’ conflict.

If, however, you do decide to rely upon a letter from a child or any out of Court utterance, the two-pronged test for admissibility outlined in R. v. Khan[22] should be considered. I also refer readers to the Stefureak[23] decision for a discussion of how Courts treat out of Court utterances with regard to children.

D. Assessments

In most provinces, the most common way to present the child’s voice to the Court appears to be by way of assessments. An assessment is a report usually prepared by a social worker or psychologist and filed with the Court. Assessments can describe parent and child interactions, contain home studies and discuss interviews with parents and others. They usually include an interview with the child and are sometimes the only mechanism for gauging a child’s thoughts, views and preferences.

Saskatchewan’s "Voices of the Children Report" was discussed in Kittelson-Schurr v. Schurr [24], a 2005 decision of the Saskatchewan Court of Queen’s Bench. This type of assessment is quick and short. Courts only order them for children over the age of twelve. They can be as simple as an overview of the child’s wishes.[25]

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