The Voice of the Child in Separation/Divorce Mediation and Other Alternative Dispute Resolution Processes: A Literature Review

3.0 WHAT DOES CHILDREN'S PARTICIPATION MEAN? (Part 2)

3.3 Existing Child-Inclusive Mediation and Other ADR Delivery Processes

Canadian Perspectives

British Columbia

The Ministry of the Attorney General in British Columbia has embarked on a series of consultations and reviews regarding the Family Relations Act[22] over the last several years.[23] The focus of the consultations and reviews is to make the family law system more accessible, serve the needs of children and their families first and foremost, promote early resolution, integrate service planning and delivery of services, and minimize conflict by encouraging an early cooperative dispute resolution process (Ministry of the Attorney General, British Columbia, 2007). Presently, the Family Justice Services Division focuses on four key areas that promote children's participation in one form or another:

  • (1) dispute resolution (whereby family justice counselors who are accredited mediators provide mediation, information and referrals to assist families in resolving their dispute);
  • (2) assessment (family justice counselors meet with parents before going to court);
  • (3) child custody and access assessments (family justice counselors prepare assessments or "Views of the Child" Reports[24] to assist judges in their decision-making); and
  • (4) a parenting after separation program (PAS) which is a three hour educational workshop focusing on the needs of children and parents.

To facilitate inclusive and meaningful participation in the province's review of the Family Relations Act[25], the Social Planning and Research Council of British Columbia (hereafter referred to as SPARC BC) conducted a participatory inquiry-based research study that focused on hearing the different lived experience of individuals involved in BC's family justice system. The participants included, parents, family law advocates and support workers, and representatives from the Family Youth Justice Committees about their knowledge, experiences, and ideas as to howthe FRA could bereformed and better reflect the needs of families involved in the family law system (Reeves, 2008).[26] Many of the topics that were canvassed with the participants reflect the services already discussed in the previous sections. Participants were also canvassed on other types of services such as those found in Scotland (i.e., child(ren) completes a F-9 Form to advise the court of his/her wishes), Australia (i.e., where the judge takes a less adversarial approach to the matter) and in Kelowna, BC (i.e., where the child(ren) statements are given verbatim to the judge). These latter types of services will be further elaborated on in the following sections below.

Specifically, eleven topics were identified as being the focus for further discussion on family law reform. They were:

  • (1) parenting agreements;
  • (2) family violence and the FRA;
  • (3) considering children's best interests;
  • (4) falsely accusing the other parent of abuse;
  • (5) children's participation;
  • (6) access responsibilities;
  • (7) higher conflict families and repeat litigation;
  • (8) giving parenting responsibilities to non-parents;
  • (9) defining parenting roles and responsibilities;
  • (10) spousal support; and
  • (11) cooperative approaches and the FRA. Information sheets were created for each topic.

Over two hundred and twenty-three family advocacy and support organizations were invited to help organize focus groups; facilitate an online survey and provide a question book to be completed by the different participants.

There were 21 focus groups held throughout BC, with over 146 individuals who participated in a two to three hour focus group discussion about their lived experiences of separation and/or divorce. In addition, 80 family law advocates and support workers completed an online survey as well as three Family Court Youth Justice (FCYJ) committees across BC filled out a question book related to each of the eleven reform topics. As stated many of the services and programs previously discussed were included as options for parents to explore, while others will be further elaborated on in the following sections.

In four focus groups, three questions were discussed with parents who had experience with separation and/or divorce regarding one of the topics—children's participation in family law. The objective of the questions was for parents to:

  • (1) provide their opinions about including children's views in family law decisions and processes;
  • (2) consider circumstances when a child's views may be a determinative factor in custody, access, or guardianship decisions; and
  • (3) consider other possible options for including children's views (i.e., mediation, being interviewed by a judge).

Most of the participants had mixed opinions on whether children's views should be included in family law issues. The participants who disagreed with involving children voiced their own children's negative experiences of feeling pressured and overwhelmed by the separation process. They felt that children should be protected from harm. Participants who agreed with including children voiced concerns that parents, instead, should be better prepared to help their children during times of parental separation and/or divorce. Many other participants could neither agree nor disagree; but rather, voiced qualifications about children's participation. That is, the age of the child, maturity level of the child, and the families' circumstances also need to be considered.

Of the participants who responded to the second question regarding whether children's views should be determinants in deciding custody, access and guardianship, again, many voiced concerns about how the age of the child and maturity of the child might affect their views (i.e., the child could be manipulated). There was a mix of opinions between letting children's views be determinative especially in situations of trauma and violence in the family, with others disagreeing, and suggesting play therapy or a third party assessment in situations of violence or trauma in the family.

Overall the participants could not give clear recommendations to the first two questions in the focus groups. One hypothesis was that the participants did not have enough information before them. However, when given specific options to comment on regarding how to include children's views, the participants were able to provide clear recommendations on the following:

  • (1) Mediation: Some participants felt that mediation would be a good idea, some thought that including children would depend on the child's age and level of maturity, others thought the decision to include them in mediation should be left with the parents, and two participants stated explicitly that children should not be included in mediation when there is family violence;
  • (2) Providing children's statements to decision-makers (i.e., Hear The Child Interviews as elaborated below): The majority of the participants were skeptical of having their child interviewed and the judge being given a verbatim report of the child's wishes. Yet, two participants were positive about this option;
  • (3) Having children fill out a Form (i.e., Scotland's F-9 Form as elaborated below): Most of the participants did not like having their child complete a Form expressing their views about the dispute as they believed that completing a Form would only increase the child's anxiety level. Some stated that the child may not even understand the Form, and others stated that completing the Form would be dependent on the age and maturity level of the child;
  • (4) Child legal representation: A large number of participants thought that having a lawyer for the child would be a good idea, while a few stated that separate legal representation for the child was not necessary;
  • (5) Having both child legal representation and a social worker (i.e., Ontario's model as elaborated below): The few participants who responded to this approach were clear that they did not want to see a social worker involved in providing children's views;
  • (6) Less adversarial trial process (i.e., Australia's model as elaborated below): Several participants did not think that children should be involved in the court process irrespective of it being less adversarial and run by the judge, while some thought there might be some value to this model as it would be a better environment for children; and some raised the model of a healing circle that included children and/or a panel or advisory group making the decision, rather than an judge; and
  • (7) Judicial interviews: Most of the participants were clear that judges were not the best people to interview a child, however, if they did, a support person should also be part of the interview, and judges should have special training in interviewing children.

Family law advocates and support workers were also surveyed regarding the same three questions. The vast majority (87 per cent) responded that they thought children's views should be considered provided that the child is capable of forming views and wants to share them. The vast majority (73 per cent) also believed that children's views should be a determining factor in custody, access or guardianship decision under the FRA. The child's level of maturity was cited as the most important factor that should be given consideration, as noted by 80 per cent of respondents. In addition, over 64 per cent of the respondents surveyed cited that an interview with the child where their responses could be recorded was the most helpful way of obtaining a child's views. Moreover, three quarters of the respondents also stated that the FRA should be amended to give judges a discretionary power to interview children to determine their views. Finally, the vast majority of the respondents (86 per cent) stated that a lawyer or counselor meeting with a child was the best way of obtaining their views (Reeves, 2008).

In addition, SPARC BC held three focus groups in several urban centers with 20 youths (seven females and thirteen males) aged 13 to 18 years old. The 20 youths who responded to the focus groups had heard about the focus groups through various agencies and word of mouth. The youths who participated had some experience with their parent's separation and/or divorce in the past. The goal of the focus groups was to obtain their views and opinions on the seven different options for having their wishes and views made known to the decision-makers.[27] The options presented to the youths to facilitate discussion were similar services that were presented to parents and family law specialists in the previous section.

There were three parts to the focus groups with the youths. Part One involved playing a game called the Thermometer Game. A facilitator read out five statements and the youth could stand in a line between agree or disagree. The five statements were:

  • (1) adults listen to me and take me seriously;
  • (2) I know my rights or have been told of my rights;
  • (3) I know what is best for me;
  • (4) I believe that children and youth should be involved in the family law process; and
  • (5) I have no interest in getting involved in the dispute between my parents.

Most of the youths disagreed with the first statement and believed that adults do not listen to them. However, one caveat was that it depended on the person as teachers and other adults did listen to them. Most of the youths agreed that they knew their rights, many stood in the middle of the line between agree and disagree, regarding whether they knew what was best for them, and had mixed feelings about whether they should be involved in the family law process. Some felt that getting involved in the family law process depended on the situation and their age. That is, they believed that the older they were the more they had a right to voice their concerns. However, they were concerned about younger children who could be swayed. Few, if any responded to the fifth statement.

Part Two involved asking youths for their opinions on whether they should have a say in the separation and/or divorce process. Youths responded by making a list of both the pros and the cons with the assistance of a facilitator. The list of reasons in support of children and youths having a say included the following:

  • (1) a belief that children and youths could help change the mind of the decision-maker;
  • (2) a belief that if a youth went to live with one parent who had emotional difficulties they could assist that parent;
  • (3) a belief that the youth would be in a better position to understand the process; and
  • (4) a belief that the youth would have greater control over their lives by being involved in the decision-making process.

In contrast, the list of reasons why children and youths should not have a say included the following:

  • (1) that their wishes and views could be in the wrong direction, thereby making the situation worse instead of better;
  • (2) that some children could be emotionally hurt; and
  • (3) that they could feel burdened with the responsibility of the decision.

Part Three involved obtaining information from the youths on the different options available regarding how they could participate, both before and during the court process. In responding to options before court, youths were provided with information describing both the Australian and New Zealand mediation approaches. Youths liked the idea of having a mediator meet with their parents and they would have their own mediator provide their feedback to their parents as conducted in Australia. However, they were clear that they wanted to be able to review what information the mediator would feed back to their parents. They also expressed that they wanted more than one mediation session with their mediator. The youths did not like the approach taken in New Zealand where the mediator meets with the child and their parents together.

In responding to options during court, youths were provided with information and asked to respond to the following types of services available for them:

  • (1) being represented by a lawyer as in New Zealand;
  • (2) having their verbatim reports given to a judge as in Kelowna, BC;
  • (3) filling out a Form about their wishes and views as in Scotland;
  • (4) having both a lawyer and social worker team as in Ontario; and,
  • (5) being interviewed by a judge as in Germany.

Their views varied—many preferred to have a lawyer represent them as in New Zealand, but wondered what would happen if the lawyer misunderstood them and gave the wrong information to the judge. One participant thought the Ontario model of a lawyer and social worker was the preferred way. Many of the participants expressed that they did not like the approach used in Kelowna, where parents decide if youths should be interviewed; they instead felt that youths should be part of the decision-making about whether they would take part in the interview process. In addition, they believed that the interviewer should be someone the youth trusts. Moreover, several expressed the view that rather than hearing from their parents about the court outcome as in the Kelowna pilot project, they would prefer to have someone other than their parents explain the judge's decision to them. Some youths thought that talking to a judge was a good idea as in the Germany model; however, some wanted to have a support person present in the interview itself even if it was with a judge, mediator, or a lawyer interviewing them. Another youth suggested that they preferred to write a letter to the judge or email the judge with their views. Some youths questioned how completing a Form could allow them to express themselves on paper as in Scotland. Some preferred to have more context provided so that the judge knew who and how the Form was filled out. Issues of consent and age were also factors that youths thought needed to be considered with respect to completing the Form. Finally, they stressed that, in any approach, there must be flexibility and choice built into the process (Reeves, 2008).

To date, the SPARC BC research initiative, funded by the Law Foundation of British Columbia as part of a review the province's Family Relations Act, has been the only exploratory research undertaken regarding all the different approaches across the globe on children's participation.

Since July 2007, the Ministry of the Attorney General, Family Justice Services Division, British Columbia has been piloting child-inclusive mediation at a number of family justice centers across the province. The pilot project was seen as a response to a gap in services for children and families before the court as well as facilitating a more timely response to the court about children and their families. This pilot project is in addition to the Views of the Child Report that family justice counselors are already engaged in for court purposes. However, this pilot project does not involve the family justice counselors reporting back to the court. Children are involved in the mediation process by family justice counselors (qualified and trained to work with children and families to resolve disputes) in three different ways. These are:

  • (1) a justice counselor introduces the children's views into the mediation session with their parents;
  • (2) a justice counselor, when appropriate, may invite the child (12 years or older) into the mediation session with their parents; and
  • (3) a justice counselor may request another justice counselor to solicit the child's views, and bring those views into their parents' mediation session.

The overarching goals of the pilot project include: testing out the model; developing training and policy around how to involve children in mediation; and determining the utility of child-inclusive mediation within the context of the services offered through the Ministry of the Attorney General, Family Justice prior to expanding it further province wide. Moreover, however, it is anticipated that hearing from children in high conflict situations will be helpful to children and their families in resolving the dispute.

Families are screened into the program by the family justice counselor. In order to participate in the program, the parents and children need to agree to be interviewed and need to wish to be engaged in the process. Only children who are at least 10 years of age and are developmentally mature to understand the issues can participate, and there must be reason to believe that the children will benefit from the program. Any cultural, religious, and ethnic considerations, or special needs of the child must be examined, but do not necessarily preclude their involvement. There is a special screening for levels of conflict that includes issues of domestic violence. A formal evaluation of this program is forthcoming. One factor to be considered in the evaluation will be the ages for children's participation.

Another project piloted in collaboration with members of the Kelowna legal community and the International Institute for Child Rights and Development (IICRD), in Kelowna, British Columbia, was the, Hear The Child Interviews (Williams, 2006; Williams and Helland, 2007) in 2005. Hear the Child Interviews was designed to provide an opportunity for children to share their views and have those views considered by the decision-makers during child custody and access disputes. The underlying premise for developing the project was based on existing legislation that allowed for children's views to be heard[28], child development research that demonstrated it was important to children to be heard, and finally, the rights of children enshrined in the Convention.[29]

Hear the Child Interviews also provided for a neutral interviewer (lawyer/counselor) who would conduct an interview with the child and then report his/her views verbatim[30] back to the parents, the lawyers, and the court through a one-hour non-therapeutic interview. The process was voluntary; children aged nine to 16 years old and their parents could consent to the interview during any stage of the dispute before the court. Parents had to pay $500.00 for the interview. The goal of the interview with the child was to allow his/her views to be heard and then be considered by his/her parents and ultimately by the court when making its final decision.

An internal evaluation was conducted and findings demonstrated that 100 per cent of decision-makers (judiciary) who responded to the evaluation found that child views, where obtained, were to be considered in their cases (Williams and Helland, 2007). Over four-fifths (83 per cent) who responded gave significant weight to the views of the child as one factor to be considered. From the judges' point of view, the positive benefits of interviewing children were that:

  • (1) having more information before them helped facilitate their decision-making;
  • (2) the children's views contextualized the parents concerns; and
  • (3) the children's views provided corroborating information where corroboration with the views of parents would not otherwise be possible.

Moreover, the child interviews provided:

  • (1) a cost-effective and timely way of obtaining children's views before the court;
  • (2) assurance that the child was heard and that his/her views were being considered by the judge; and
  • (3) facilitated early settlement (Williams and Helland, 2007).

Some limitations were also noted:

  • (1) the interviews with children occurred at the last minute or too late in the litigation process;
  • (2) more than one interview with the child was needed;
  • (3) children were heard in only 10 per cent or less of all cases;
  • (4) inadequate follow-up with children; and
  • (5) older and younger children were excluded from this process (Williams and Helland, 2007).[31]

In an independent evaluation conducted by Focus Consultants (2008), feedback was obtained from grandparents/parents and children about their experiences with the Hear The Child interviews in Kelowna. Due to significant issues related to obtaining consent from parents and children, the evaluators were only able to interview one party from a case in 42 per cent of cases (N=12/28) by telephone. The evaluators report that there was representation by 25 per cent (14/56) of adults, and 13 per cent (6/48) of children (Focus Consultants, 2008). The children interviewed in the evaluation were between the ages of 11-14 years. Parents and children were each asked a series of open and closed-ended questions. For example, questions regarding process included, how each parent/child heard about the interview, how each parent/child felt about the interview, and what qualities they wanted from the interviewer. Questions regarding outcomes for parents included whether the report represented the views of their child and if the report helped advance the best interest of the child. Questions regarding outcomes for children included whether they were able to discuss what they wanted to about the dispute and whether they felt the interview helped them in having a say about their parents' dispute.

Despite the methodological limitations of the evaluation, findings from the fourteen parents interviewed indicated that they were virtually unanimous in endorsing the idea of hearing direct views of the child by some means, that they all viewed the interviewer as a neutral party, and that they all felt that their child was safe in the interview. Findings from the six children interviewed indicated that they would describe the process in essentially positive terms to a friend (Focus Consultants, 2008).

Other limitations that were noted were parental pressure on or recriminations against children in some of the cases, that the judge did not use the report of the interview in some cases, and that there was a fear and awkwardness by some children to have their interview report shared with their parents without the child having reviewed it first (Focus Consultants, 2008).[32]

Alberta

In Alberta, there are a number of different initiatives occurring both in the private and public sector that provide for different levels of participation by children in the separation and/or divorce process. Mediation is provided in both the private sector as well as the public sector. It is unclear whether and how children are included private sector mediation. There is no legislation that provides for children to be legally represented and have their voices heard (Burns and Goldberg, 2004).

In the public sector, in addition to a child custody and access assessment that is conducted by mental health professionals, the Ministry of the Attorney General has provided for a Family Law Practice Note "7", which can be used in certain cases involving separated and/or divorced families. The purpose of the Practice Note is to provide services only in cases where:

  • (1) the families are experiencing an impasse;
  • (2) the intervention of the court is required; and
  • (3) the court requires assistance from parenting experts.[33]

The Practice Note provides for either an intervention (short or long term therapeutic involvement of a parenting expert) or a traditional child custody and access assessment to assist the court in determining the child's best interest.

Children have an opportunity to participate in the brief consultation model with a mental health professional to have their views and concerns heard and brought back to their parents.

Children's participation is also considered through the Brief Conflict Intervention Program.

Children even under six years of age have an opportunity to participate in an interview with a psychologist and have their views and concerns fed back to their parents.

In a joint legal/mental health initiat The Voice of the Child in Separation/Divorce Mediation and Other Alternative Dispute Resolution Processes: A Literature Review ive between the Children's Legal and Educational Resource Center (CLERC) and the YWCA, they have been piloting a project called, Speaking for Themselves in Calgary. CLERC is a non-profit legal and educational resource for children, youths and their families. The YWCA of Calgary provides specialized counseling to children who have been exposed to domestic violence. In the joint collaborative partnership, a specialized children's counselor provides short-term therapeutic clinical services and CLERC provides legal support to young people throughout the City of Calgary who have been referred to the program. Families include those who have experienced domestic violence and families who are also involved in high conflict custody and access disputes. These are the more severe high conflict cases (i.e., repeated court involvement, issues of domestic violence, alcohol/drug abuse, allegations of poor parenting). The counselors involved in this project are highly skilled clinicians with a background in domestic violence issues and conflict as a result of the intake criteria. Cases are also screened to confirm that the young people are likely to benefit from the program.

The counselor conducts an intake interview with each parent and attempts to acquire consent from each of the parents. Verbal consent of the children is also acquired. If consent from the parents is not forthcoming, a court order is required. All parents are offered the support of a parent counselor through the YWCA of Calgary. The same therapist meets with the child (typically 8+ years of age) to determine the child's needs and suitability for the program and, throughout the course of therapy, treats the child's trauma and acquires an understanding of the child's experiences in the family. The therapeutic involvement with the child lasts approximately 18.5 hours. The counselor prepares a report and works in collaboration with the child's lawyer. The counselor may also provide testimony in court and act as a witness for the child's lawyer if the matter proceeds to trial, which is rare. The lawyer's role is that of an advocate or amicus curiae (friend of the court). A formal evaluation of the project is currently underway.

Saskatchewan

In Saskatchewan, mediation services are also provided in the public and private sector by mental health professional and lawyers. Specifically, in the public sector, the Hearing Children's Voices Report, similar to the Views of the Child Report in British Columbia, allows children 12 years of age and older to be interviewed by a mental health professional and have their views known to the court and considered in the decision-making process. The child is usually interviewed twice, once with each parent when it is their opportunity to bring the child to the interview. Specific parenting plan recommendations may or may not be included in a report to the court. Justice counselors also prepare child custody and access reports that provide specific parenting plan recommendations on the child's best interests to the court.

While there is no legislation that provides for independent child legal representation, there have been instances where one parent or the other has retained a lawyer to act on behalf of their child and have the child's voice heard (Burns and Goldberg, 2004).

Manitoba

In Manitoba, mediation services similarly exist both in the private and public sector. In the public sector, Family Conciliation Service, Manitoba has several initiatives that provide for early and brief interventions as well as child custody assessments regarding children and enunciating their best interest. One pilot project, called First Choice, is a settlement-oriented dispute resolution process that combines assessment, mediation and counseling focused on resolving the parental dispute before the court. The parents are seen initially for an assessment with their lawyers to determine what issues, if any, can be resolved and what other services may be appropriate for the family. If a complete resolution cannot be obtained, mediation is offered to the parents to facilitate some resolution on any outstanding issues. Children are not typically seen as part of this project.

In addition, the Brief Consultation Service is a pilot project funded by the Child-Centred Family Law Strategy in Manitoba since October 2001. The project provides children aged 11-17 years an opportunity to share their wishes, concerns and views. In addition, parents are provided with a brief consultation that focuses on their children's emotional and developmental needs. Parents are contacted by telephone to meet with a counselor soon after they are referred from the court. Interviews with the parents occur prior to meeting with the children to obtain background history and assess issues in dispute. The children are advised of issues relating to confidentiality and receive a one page information sheet outlining the nature of the interview. Following the interviews with the children and the parents, a brief report outlining who participated in the process, the issues in dispute, and impressions is prepared for the court. Suggestions regarding parenting time arrangements are made, rather than recommendations. If the parents do not agree with the suggestions, then the counselor can be called as a witness. Only experienced family counselors who have expertise in mediation and separation and/or divorce provide the Brief Consultation Service (Martin and Kowalchuk, 2007).

In a recent evaluation of the Brief Consultation Service, surveys were mailed to 254 children and their parents, lawyers and judges to assess their level of satisfaction with the service and obtain information regarding settlement one year later. Of the 22 children who completed the survey, most of them reported positive responses to having their thoughts and feelings considered in the decision making process. Most of the children also reported that they believed the counselor listened and understood views. Of the 33 parents who rated the service, the majority of them found the service relatively helpful overall in resolving the dispute before the court. Most parents also rated their child's participation in the process as helpful. Of the 41 lawyers who responded to the survey, most stated that the service met the objectives of providing a voice for the child, reduced the time spent in litigation and was useful as a tool in facilitating resolution of the dispute. Of the 10 judges who responded, the top benefits of the service cited were its timeliness, provision of expertise, and provision of recommendations as direction for the family. The lowest ranked in order of importance was that the service served as a wake-up call for parents. All the judges surveyed indicated overall satisfaction with the service and felt that it met or exceeded expectations in terms of facilitating an early resolution to the issues in dispute. Of the 126 cases that were followed one year later, 33 per cent had settled at a case conference (where parents and the judge discuss the issues that are still outstanding and see where resolution is possible), 38 per cent had resolved by a final court order, 22 per cent withdrew their application or no further litigation was recorded, and 7 per cent did not settle and litigation continued. A total of 93 per cent of the cases were no longer litigating after the Brief Consultation Service (Martin and Kowalchuk, 2007).

The evaluators noted the low response rates and attributed it to parents moving away or just not wishing to respond to a mailed survey. However, those that did respond to the survey demonstrated a mid to high rate of satisfaction with the service and found that it was helpful in settling the dispute before the court in a timelier manner.

Ontario

In Ontario's private sector, various approaches to child-inclusive mediation are being practised by different mental health professionals (social workers and psychologists) who strongly believe in providing an opportunity to hear children's views (Landau, 2005, 2006). Many mental health professionals have included children's participation in similar approaches to those that have already been discussed in both the social science and research literature (Goldson, 2006; Kelly, 2002; McIntosh, 2007; Saposnek, 2004). However, children's voices are not typically included in the mediation process in the publicly-funded court services.

In the public sector, the Ministry of the Attorney General also provides for independent child legal representation through the Office of the Children's Lawyer. The Office (hereafter referred to as the OCL) is a publicly funded legal office that represents children's legal interests before the court in custody and access disputes, child welfare matters, and estate issues. Ontario is the only province that provides a comprehensive child legal representation program[34] in both child custody and access proceedings as well as child protection matters. The policy statement on the role of child's counsel at the OCL provides that the:

  • (1) child's counsel obtain the views and preferences, if any, which the child is able to express;
  • (2) child's counsel does not represent the best interests of the child, as that is to be determined by the court;
  • (3) child's counsel is the legal representative of the child and not the litigation guardian or a amicus curiae; and
  • (4) child's counsel has a solicitor-client relationship with the child (Burns and Goldberg, 2004; Goldberg, 2004).

The OCL also provides:

  • 1) child legal representation with a clinical assist[35]; and
  • 2) a child custody and access investigation and report (Birnbaum, 2003, 2005).

Focused investigations that explore access-based difficulties are also provided by both clinical investigators (mental health professionals) and lawyers (Birnbaum and Moyal, 2002; Birnbaum and Radovanovic, 1999). Only the clinical investigators write a brief report to the court outlining parenting plan recommendations. Children's participation is limited in that their voices are canvassed by the professionals in the context of litigation.

Quebec

Like Ontario, Quebec also has specific legislation that provides for legal representation of children in custody and access disputes.[36] Unlike the role of child's counsel in Ontario, lawyers in Quebec adopt an advocate role on behalf of the child—as long as the child can provide clear instructions, the lawyer is to advocate their expressed wish (Bala, Talwar and Harris, 2005). More specifically, Article 34 of Quebec's Civil Code allows for a child to be heard if they are old enough and have the ability to express themselves. As a result, it has been suggested that in Quebec, children are more likely to testify in court about their parents' dispute more often than elsewhere in Canada(Ministry of the Attorney General, 2007).

In addition, there are mediation services in Quebec that are provided by both the public and private sector. The court can order parties to attend mediation, except in cases of domestic violence. Children are only included in mediation on a case-by-case decision with the consent of both parents. In addition, in the public sector, Information Sessions for parents are mandatory. Child custody assessments are also conducted in the public sector and children are interviewed as part of the process.

New Brunswick

In New Brunswick, when parents are disputing custody and access of their children, they can obtain a child custody and access assessment only in the private sector. In the public sector, parents who are eligible may receive financial assistance to defray the cost of the child custody assessment through the Court Ordered Evaluations Support Program (C-OESP). In addition, mediation services are provided at no cost to the families in the public sector. However, children do not typically participate in the mediation sessions, but are included in the child custody assessment.

There is legislation for child legal representation under the Family Services Act[37], however, representing children is an uncommon practice (Burns and Goldberg, 2004).

Nova Scotia

Similar to the other provinces, parents disputing child custody and access can obtain, by court order, a child custody assessment. There is a conciliation service that is mandatory in the family court (Supreme Court). A conciliation officer only meets with parents to understand what issues are in dispute and the next steps to be taken. Children are not included in any of the discussions. Additionally, while there are private and public mediation services available on a voluntary basis, children rarely participate in the process in any informal or formal way. Moreover, there is no child legal representation in custody and access disputes (Burns and Goldberg, 2004).

Prince Edward Island

As with the other provinces, there are both public and private mediation services available in Prince Edward Island. Typically, children are not included in either the private or public sector mediation services. However, in the public sector, there are family court counselors who conduct custody and access assessments. As stated previously, children's participation is part of the litigation process only. There are no statutory provisions for child legal representation.

Newfoundland and Labrador

There are both private and public mediation services. Children are typically not included in public service mediation, but are provided with counseling to assist them during their parents' dispute. Depending on the mediator, children may be involved at the end of the mediation session to help them understand the agreement their parents have reached about them (O'Connor, 2004). Similar to the other provinces, there are child custody and access assessments which include interviewing of children as part of the process. Additionally, child-focused reports are conducted. They are similar in practise to those completed in Saskatchewan, British Columbia, and Manitoba. There are no legislative provisions for child legal representation in Newfoundland and Labrador (Burns and Goldberg, 2004).

Yukon

There is a court-based mediation service for parents to help them resolve their dispute. Children are not included in the process at all. In addition, few custody and access assessments are completed due to a lack of resources (O'Connor, 2004).

The Public Guardian and Trustee acts under section 168 of the Children's Act. The Official Guardian has the exclusive right to determine whether a child will be legally represented in a child protection matter.[38] However, there is no specific reference for child legal representation in a custody and access dispute. When a lawyer is provided in a custody and access dispute, child advocates are appointed from the private bar (Burns and Goldberg, 2004).

Northwest Territories

Similar to the Yukon, there are few custody and access assessments that are carried out because of a lack of resources. Mediation services are limited and do not include children. There is also no legislative provision for child legal representation (Burns and Goldberg, 2004).

Nunavut

Similar to the Yukon, few child custody assessments take place due to a lack of resources. However, there is a public sector mediation service that provides for innovative dispute resolution and is culturally-based. Information and counseling services are also provided.

The Children's Law Act Nunavut) is the same as the Northwest Territories. A judge may appoint an amicus curiae (friend of the court) for the child (Burns and Goldberg, 2004).[39]

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