Chapter 4: Methods for Including Children’s Voices in Family Law Matters

Methods for including children’s voices in family matters are situated along a continuum of litigation involvement, from services outside of the court process (e.g., child-inclusive mediation services) to methods embedded within the context of litigation (e.g., judicial interviews). Framing methods for including children’s voices along the continuum of the legal process helps to underscore the many services provided to children as their parents follow the various pathways of the family justice system. The continuum also helps to identify and consider the various opportunities afforded to children to provide their views and preferences about parenting plan decisions. The continuum further underscores the gaps in services for hearing children’s voices within the context of separation and divorce.

Exploring opportunities for including children’s voices in the continuum of the legal process provides a framework for exploring, not just the opportunities for children’s voices to be heard within the courts, but also the opportunities for children to have greater voice earlier in the separation and process. Not all children’s parents will be engaged in the family justice system to resolve their disputes and there is a current focus to move families out of court quicker and into dispute resolution services to resolve their disputes without court involvement.Footnote 55 Given that the vast majority of separating parents will settle their parenting plan disputes without substantial legal involvement, and that they will usually settle their disputes within one year of initial application to the courts,Footnote 56 providing only court-based methods for including children’s voices eliminates opportunities for a substantial number of children to have their voices included in parenting plan decisions.

Although there is much less attention to earlier opportunities to have children’s voices heard (mostly because the case law is more specific to the legal side of children’s voice), it is nevertheless important to consider opportunities both within and outside of the court process for hearing children’s voices. To support children’s voices both within court processes and outside of the courts, the consideration of the various methods for including children’s voices in services that fall along the continuum from a processes outside of the courts to methods embedded in the context of litigation.

Non-Court Child Inclusive Methods

Although not directly part of the family justice system, it is nevertheless important to consider non-court related approaches for hearing children’s voices given that the majority of children will not be offered opportunities to speak to a judge, lawyer, or court-based mediator or mental health professional about their views of parenting plans that affect them.Footnote 57 When parents are not directly involved in the family justice system to resolve their parenting disputes, children can become silenced in the decision-making process.

Children Talking with Parents

Family law problems can be resolved in various ways and court is not the only option for parents. Some view out-of-court dispute resolution processes and resolution through agreements as the preferred option for solving parenting disputes, with court-based resolution processes being a valued, but not always necessary.Footnote 58 When parents agree to parenting plans outside of the court, there has been little focus in the literature about how best to engage children’s voices into these decisions.

Children discuss the desire to be part of the decision-making process at earlier stages in the divorce process, including at the point where the parents decide to separate.Footnote 59 For some children, particularly for those whose parents resolve their disputes without legal involvement, speaking with their parents may be the opportunity to have input in the parenting plan and to share their views and preferences.

There are several challenges associated with children sharing their views with their parents. Most children report that their parents do not provide them with adequate opportunity to be part of conversations about parenting plans post-separation.Footnote 60 Studies of children’s perspectives of their parents’ separation indicate that children do not receive adequate support during their parents’ separation, are not given sufficient explanations of what is happening to their families, and most have no input into parenting plan determinations.Footnote 61 Parents may not be emotionally ready to hear their children, as separated parents have been found to show decreased parenting competency post-separation.Footnote 62 Parents may have lower emotional availability and sensitivity for their children during this time.Footnote 63 Parents may also continue to blame the other parent for the family breakdown and may participate in negative disclosures about the other parent, which has been found to affect the child’s closeness and satisfaction with their parents.Footnote 64 Being placed in the middle of their parents’ dispute can feel overwhelming for children and can induce feelings of guilt.

Children can be further put in the middle of their parents’ dispute if the parents eventually decide to use the courts to resolve disagreements and carry with them their child’s views to augment their arguments to the courts. In these cases, the courts have noted that parents may have a vested interest in misrepresenting the child’s views, or pressuring the child to express a certain view. As the court in M (DG) v M (KM) noted, since parents “clearly ha[ve] a personal stake in the outcome of the proceedings,”Footnote 65 courts should use caution when children’s views are reported via a parent. Additionally, some courts may question children’s views being too similar to a parent’s position in litigation, and will give them less weight when this occurs, seeing this as an indication of parents’ views unduly influencing by the child.Footnote 66

Most jurisdictions in Canada provide parent education programs for separating and divorcing parents to provide them with information, skills, and development activities to help them better cope with the family breakdown and to focus their attention on the needs of the children. Very few of these programs actually focus on how to talk with children about their views on parenting plan issues while protecting them from the conflict. For example, the Parenting After Separation program in British ColumbiaFootnote 67 includes the goals of helping parents make careful and informed decisions about their separation and to ensure that these decisions are based on the best interests of their children. There is no mention of whether parents are informed about how best to listen to their children post-separation.

Children Sharing their Views with Professionals

When children do not feel comfortable talking with their parents about their experiences with parental separation and views about the parenting plan, they may turn to professionals. For example, recent research identifies children speaking with their teachers and mental health professionals about their views and preferences on parenting plan arrangements. School teachers may not be the best adults for children to share their views about parenting plans with, as research finds that school staff are often ill-equipped to listen to children about their parents’ separation. They often lack the expertise for directing children to the appropriate services.Footnote 68 Teachers can face legal and ethical challenges when working with students and their families and many are discouraged from becoming involved in child custody matters.Footnote 69

The role of mental health professionals (e.g., child protection workers, therapists), in hearing children’s views about post-divorce arrangements has become more prominent.Footnote 70 Mental health professionals, however, may lack the training for working with children post-separation and divorce. For example, a recent survey of child protection workers in Ontario found that the child protection workers often feel pressured to take sides in the parents’ disputes and prematurely close their files without considering the views of children in these disputes.Footnote 71

Parent coaching has recently emerged as a specialized service for separating and divorcing parents serving as an informed educator and consultant to the parents. The parent coach, usually a mental health professional, typically has specialized knowledge of the effects of family breakdown, knowledge regarding the legal system, and competence in the skills necessary for effective coaching.Footnote 72 When parent coaching includes child-inclusive frameworks, the children are typically included and receive education and support for sharing their views with their parents.

There are also a variety of existing programs for children experiencing parental separation and divorce, most of which are intended to provide children with the opportunity to express their voices and needs within the context of their parents’ separation and divorce disputes. These programs do not appear to be widely available across Canada.Footnote 73 In addition, these programs do not afford the opportunity for children to have input into parenting plan decisions.

Child-Inclusive Mediation

Children’s participation in mediation, a dispute resolution process to help parents resolve conflict, varies widely across Canada, and even within individual provinces and territories. Many Canadian provinces now offer mediation to separating or divorcing parents to assist families resolve parenting plan issues outside of court.

Child-inclusive mediation brings the child into the process of family dispute resolution. In one model, for example, a child specialist is engaged in the process to interview the child to gain an understanding of the child’s emotional needs, and expressed wishes.Footnote 74 The child specialist then participates in the mediation with the parents, incorporating the child’s perspective on child-related issues in the mediation session without subjecting the child to the adult session or requiring the parents to modify the session due to the child’s presence.Footnote 75

Commentators and researchers are divided over whether, and how, children should be included in their parents’ mediation concerning parenting plan issues. Proponents argue that including children gives them a sense of control over their fate, a place to express and deal with feelings they may not be expressing to their parents, and lets them know what is happening.Footnote 76 Opponents argue that it is in children’s best interests not to be included in mediation because it places children in the middle of their parents’ dispute and burdens children with the responsibility of making adult decisions.Footnote 77

Results from the social science research suggest that involving children in mediation can have a positive effect on mediation outcomes, including agreements with more parenting time for non-residential parents and more communication provisions.Footnote 78 Some research suggests that parents and children in child-inclusive mediation believe that children gain a sense of relief, a lighter burden, a clearer perspective, and the experience of being heard.Footnote 79 Child-inclusive mediation also has been found to decrease court motions following the final resolution of issues addressed in mediation.Footnote 80

Child-inclusive mediation provides the children of separating families an opportunity to be heard. It is, moreover, an essential opportunity for disputing parents to focus on children’s needs and wishes.

The financial and emotional savings to families from successful mediation, removing the need for costly, lengthy, and profoundly negative legal processes and trials, may well justify the additional cost of including children in the mediation process. Providing child-inclusive mediation for families experiencing lower levels of conflict can also free judges to hear and determine only the most intractable cases. Even in cases that do not settle, children benefit from child-inclusive mediation processes, knowing that their parents care about how they feel and knowing that their parents are making attempts to settle the parenting dispute peacefully. Disadvantages of child-inclusive mediation include instability of government funding to support these programs. Including children in the mediation process can also increase the cost of mediation given the extra cost of including a child specialist to interview the children and then report back to the mediator.Footnote 81

Court Based Child-Inclusive Methods

Many of the court-related child-inclusive methods for hearing the voices of the child are primarily in the context of helping the court in its decision-making as opposed to having children contribute to the decision-making in concert with their parents. Several Canadian and international pilot studies have been developed to better respond to children’s voices within the context of court-based disputes regarding parenting plans. Many of these seem promising, but further evaluation is needed to assess the impact of listening to children and integrating their voices in parenting plan disputes.

Child-Inclusive Conferencing

Most recently, the Australian family courts developed a new service to involve children’s voices within their parents’ disputes at the initial stages of court involvement. Child Inclusive Conferencing involves a meeting with the parents and children with a Family Consultant, qualified social workers or psychologists, ordered by the court and without the presence of lawyers. The Child Inclusive Conference is intended to give the court an understanding of the family situation, and particularly of the children’s experience.Footnote 82

According to the model, the Family Consultant interviews each parent and the children and then assists the court by making suggestions about what needs to be considered for the children. The Family Consultant also provides an opportunity for the parties to discuss arrangements for the children and negotiate their own agreement. The process usually involves the Family Consultant first speaking with the adults and then with the children about what has been happening and what is important to them. After seeing the children, the Family Consultant may give feedback to the adults about the children’s views and preferences.

Child Inclusive Conferencing is unique to Australia and has been developed by court-based mental health professionals with very little statutory and regulatory guidance. While there are no known Child Inclusive Conferencing in Canada, recent research from Australia detailsFootnote 83 how this can be effectively implemented. Results based on a small sample of Family Consultants balance the right of the child to be heard with the responsibility to ensure the child’s safety and the child’s best interests. Furthermore, the Family Consultants suggest that to truly listen to the views of the child, the child needs to have a more substantial role in identifying and determining what is in their best interests and deciding what matters that affect them. The Family Consultants reported that they considered how much weight the court might give to the child’s views in their decision making.

Based on these findings, Child Inclusive Conferencing could serve as a framework to guide the role of Family Consultants or other similar professionals within Canadian family justice processes. Child Inclusive Conferencing seems to provide an important model for including children’s voices within court-based services and has the potential of providing children with meaningful contributions to parenting plan decisions while also protecting their safety and their relationships with their parents. However, research would need to be conducted in Canada on a pilot basis to determine the fit of Child Inclusive Conferencing within existing family justice services.

Appointment of Children’s Lawyer

Different provinces offer different options for child representation. Ontario has the most comprehensive method for representing children, through the Office of the Children’s Lawyer (OCL), which is empowered to litigate custody and access issues. In Prince Edward Island, there is no legislation for child representation in family law matters, but they do have an Office of the Children’s Lawyer. In Quebec, a child has the right to be heard, meaning that a lawyer will be appointed for them as soon as they wish to exercise this right. Limited resources exist in Nova Scotia for a child’s lawyer to be appointed. This is in comparison to Alberta, Quebec, New Brunswick, Nunavut and the Yukon, which have no equivalent government office, and where the courts appoint Legal Aid lawyers for children when needed. In British Columbia, children are not considered parties for the purposes of legal aid and as a result, assessments are more common than full representation.

Studies in Canada and abroad have found that most children are supportive of having a lawyer represent them in court. Most children are satisfied with their legal representation as they believe their lawyers are neutral, objective, and trustworthy.Footnote 84 In contrast, other studies have noted that children generally do not benefit from talking to lawyers as these children feel that representation was more like intervention and discussions felt like interrogations.Footnote 85

With different possibilities across Canada for appointing a lawyer for a child, courts have also taken different approaches. For example, in the Ontario Superior Court of Justice decision in Collins v Petric, the court sets out three instances where it is not necessary to appoint a lawyer for a child, including where: a full assessment has been made; the appointment of a lawyer would significantly delay the proceeding; or the introduction of a new party might be upsetting for the child.Footnote 86

The Quebec Court of Appeal in F (M) v L (J) has stated that if a child is mature enough to have an opinion, a low threshold, then the child’s lawyer has a duty to advocate this position.Footnote 87 The appointment of a lawyer cannot be tied into the parties’ litigation. Otherwise, there exists an understandable concern that the child’s representative will not be neutral to the parent’s interests.

Advantages of child legal representation include that children may benefit from having their own advocate to explain the court proceedings to them, including possible case outcomes. Children’s legal representation may informally help parents settle disputes and refocus attention on the child’s needs. Disadvantages of child legal representation include some children not feeling they benefit from talking to lawyers, preferring instead to keep family issues within the family. Further, some children do not respond well to interactions with their lawyers.Footnote 88 It is also important to point out that the high cost of legal representation and the limited funds and resources to publicly support these programs limit the number of children who are able to access the services.

Children Interviews of Children within Parenting Plan Assessments

A significantly less direct way to incorporate a child’s voice within court-based processes is through the involvement of a court-appointed or private parenting plan assessor. This assessor completes a comprehensive parenting plan assessment and makes a report to the court. Psychiatrists, psychologists, social workers, and other mental health professionals routinely conduct these parenting plan assessments.

There are differing models across Canada for how costs are allocated for parenting plan assessments. For example, in Nova Scotia, the costs associated with assessments are shared between the court, the Nova Scotia Department of Justice, and the parents if they earn more than $20,000 per year.Footnote 89 In Manitoba, free parenting plan assessment reports are provided through Family Conciliation, a branch of Family Services and Housing.Footnote 90 In Ontario, parenting plan assessments can be conducted both by the government at no charge to the parents and for a fee by a private assessor.

The primary goal of the child’s interview within the parenting plan assessments report is to assist judges, lawyers, and families by providing expert opinions regarding the level of inter-parental conflict, parent functioning, child–parent relationships, and the children’s developmental, social, emotional, and educational needs post-separation and divorce. Child interviews are considered a central part of the parenting plan assessments, second only to parent interviews.Footnote 91

The children’s voices within parenting plan assessments is to assist the court in deciding a parenting plan. Children’s views are a primary consideration within the assessors’ recommendations for parenting time and decision-making responsibility. It has also become a common practice that the older a child is, the more weight their views and preferences are given. An example of this is laid out in the British Columbia Court of Appeal case Alexander v Alexander, where the court states that “there does come a point when at near adult years a child capable of responsible thought must now be deemed to be able to settle his own future in this important matter. Concomitant with that he must take the responsibility for his own actions.”Footnote 92

The importance of age is also echoed succinctly by the Ontario Court of Appeal in Kaplanis v Kaplanis: “the older the child, the more an order as to custody requires the co-operation of the child and consideration of the child’s wishes.”Footnote 93 This principle has been generally accepted in case law throughout Canada;Footnote 94 the major exception is where alienation has taken place, which can override the child’s autonomy in the eyes of the court.Footnote 95

A benefit of parenting plan assessments is that courts have viewed them as a viable option for hearing children’s voices, as it makes the child’s views and preferences known to the court without as much pressure as may be associated with appearing in court.Footnote 96 The assessor generally has specialized training in understanding and interviewing children and families. Like other court-based methods for including children’s voices, these parenting plan assessments can facilitate settlement between disputing parents. Additionally, a parenting plan assessment may be more likely to be considered and applied to a greater degree if the child is quoted verbatim within it.Footnote 97 Limitations of parenting plan assessments include the length of time (e.g., several months) to complete an in-depth evaluation which can further delay the court process. The high cost of these assessments also can make this not a viable option for most families. Also, the weight of a child’s wishes in an expert evaluation will be decided by the evaluator, and may or may not be fully considered or explained, depending upon the evaluator’s perspective and practice.Footnote 98

Voice of the Child Reports

A Voice of the Child Report is a recent development that allows children to have their views and perspectives shared in family disputes in a relatively timely and cost-effective way, without necessarily requiring involvement of a lawyer or a full assessment by a mental health professional. Although not appropriate for every case, the preparation of a Voice of the Child Report is becoming more common in Canada, as these take less time than comprehensive parenting plan assessments while still providing the courts with critical information about the child.Footnote 99 They were first introduced as a pilot project in British Columbia, and have since been widely adopted across Canada. In 2016, the Law Foundation of Ontario completed a pilot project to allow courts to order Voice of the Child Reports and have since integrated Voice of the Child Reports into the services offered by the Office of the Children’s Lawyer, Ministry of the Attorney General.

The purpose of Voice of the Child Reports is to give the child an outlet to speak without their views being evaluated by the assessor. It has been suggested that the purpose of a Voice of the Child Report is to allow a child to speak frankly to a qualified neutral third party without the child being pressured to say things that the parent wants to hear.Footnote 100 The content is meant to be only evidentiary, with no expert opinions, as it is meant to be solely a space for the child’s views to be repeated in an organized manner.Footnote 101 In a typical report-writing process, the child is interviewed on two occasions, brought once by each parent, which forms the basis for the report. They are usually only conducted on children seven years old and older. Courts have found that a Voice of the Child Report is a viable alternative to judicial interviewing of the child.Footnote 102

In Ontario, there seems to be some uncertainty about courts’ statutory authority to order a Voice of the Child Report. Several judges have found that a statutory authority to order this report does not exist.Footnote 103 Others have relied on the authority of s. 30 of the Children’s Law Reform Act, which provides for parenting plan assessments.Footnote 104 In one case, a court found that the court has a regulatory authority, under 20.1(3) of the Family Law Rules, to appoint an expert to inquire into a question of fact pertinent to a relevant legal issue. Since the Voice of the Child Report fits this mandate, it was held that this is the source of the authority.Footnote 105

The case law sets out certain criteria for how judges should evaluate a Voice of the Child Report. The New Brunswick Court of Queen’s Bench in D (KR) v K (CK) adopted Nicholas Bala’s criteria for evaluating these reports, which consist of:

  1. Whether both parents are able to provide adequate care;
  2. How clear and ambivalent 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;
  8. Practicality;
  9. The influence of the parent(s) on the expressed wish or preference;
  10. 1The overall contact;
  11. The circumstances of the preference from the child’s point of view.”Footnote 106

One of the benefits of the Voice of the Child Reports is that it can be a relatively quick and efficient method for presenting the voices of children to the courts, can assist in reaching agreements consistent with the child’s viewsFootnote 107 and can provide an accurate portrayal of the children’s views.Footnote 108 One potential concern is that a Voice of the Child Report may be ordered in cases where a comprehensive parenting plan assessment is needed to consider the children’s views within the context of the child’s best interests, especially children’s reported views are considered contrary to the child’s best interest. For this reason, Voice of the Child Reports may not be suitable in cases of high conflict, intimate partner violence, cases that involve substance abuse, cases with strong loyalty conflicts (e.g., alienation) and cases where the child’s safety may be compromised.

Child-Inclusive Collaborative Law

Collaborative family law is a settlement-oriented legal dispute resolution process where the parents and their lawyers engage in a process together to resolve the parents’ dispute. Parents with their lawyers agree at the outset that they will not proceed to court. Instead, parents engage in a joint problem-solving effort as opposed to the traditional adversarial approach.Footnote 109 If the parents wish to proceed to court, both lawyers for the parents have to withdraw from the case.Footnote 110

An emerging trend in collaborative law is for the parents and their lawyers to engage with a child specialist as a member of the collaborative team. The child specialist is often a psychologist or social worker with specialized knowledge about children, child development, family relationships and parenting. Within the collaborative team, the child specialist is a neutral third party who focuses exclusively on the children’s voice and their interests. The task of the child specialist in relation to the team is to interview the children and to report back to the collaborative team to ensure the children’s interests are considered in the resolution of the parenting plan issues.

As both collaborative law and the use of a child specialist are relatively new areas of practice in Canada, there is little written about the use of the child specialist, the limitations, and their role in the process. Based on a study of collaborative law in British Columbia, the use of the child specialist within the collaborative process offers a potential avenue for children to provide their perspective while protecting child safety. More specifically, when the child specialist remains neutral and advocates only for the children, the specialist is in a unique position to relay the children’s voices to the parents and their collaborative lawyers in a way that protects children and minimizes potential conflict resulting from children’s disclosures.Footnote 111

Collaborative lawyers report that child specialists have an important role to play in the success of the process. Child specialists are most commonly used when there are discrepancies between the parents’ perspectives concerning parenting issues, existing dysfunctional parenting arrangements, parental alienation or behavioural issues, or the parents have a poor understanding of child development. The extent to which the presence of child specialists on a file would raise or lower ultimate costs to clients is something worthy of additional research.Footnote 112 Child-inclusive collaborative law is considered less expensive than if the parents were to proceed to litigation, but future research is needed to determine the extent to which the cost of collaborative law is too high for parents to choose it as a viable option.

Judicial interviews with children

Some jurisdictions now provide for judges to interview children in family law matters regarding their wishes. Interviews may take place in judicial chambers (as is often the case in Quebec), without the presence of their parents and, often, without their parents’ lawyers. The terms judicial “meeting” and “interview” with children have been used interchangeably.Footnote 113 A few authors distinguish between a judicial “interview,” which may result in a judge acquiring information or insights that can be used in making a decision, in particular about a child’s views and preferences, and a judge having a “meeting” with a child for some other purpose, such as to answer questions that a child may have or to tell the child about the court’s decision.Footnote 114

The judge’s legal authority to interview a child in the family law context exists across Canada. This authority is explicitly set out in legislation in some provinces, and only grounded in the common law in others. In Ontario, s. 64 of Children’s Law Reform Act explicitly states that “(1)…a court where possible shall take into consideration the views and preferences of the child to the extent that the child is able to express them…[and] (2) the court may interview the child to determine the views and preferences of the child.”Footnote 115 The legislation also specifies that the interview shall be recorded.Footnote 116 A similar legislative provision exists in Prince Edward Island in section 8(2) of the Custody Jurisdiction and Enforcement Act, which states that “the court may interview the child to determine the views and preferences of the child.”Footnote 117 Also, under Newfoundland and Labrador’s Children’s Law Act, a judge may interview a child to determine their views and preferences, the interview must be recorded unless otherwise agreed to by all parties and the judge, and the child is entitled to be advised by and to have a lawyer present during the interview.Footnote 118

Similar legislation does not exist in most other provinces. However, common law precedents do explicitly allow judicial interviewing, such as Jandrisch v JandrischFootnote 119 in Manitoba and S (ME) v S (DA)Footnote 120 in Alberta. It is, however, important to note that the judge is under no obligation to conduct a judicial interview, they only have the authority to do so if they deem it appropriate.Footnote 121 Judges are more likely to meet with children if there is no parenting plan assessment, Views of the Child Report or representation for the child, especially if there is urgency for a decision.Footnote 122

There are several safeguards in the case law around the practice of judicial interviews. A child’s counsel, if one is appointed, may be a party to the decision of whether a judicial interview is advisable. There is also the consideration of recording the interview. While the legal need for a recording is part of the relevant statute in many jurisdictions, in other instances it is accounted for in case law. For example, the Manitoba Court of Appeal ruled in Jandrisch v Jandrisch that while a trial judge has the discretion to interview children, if the interview would interfere with rights of parties, then the interview must be recorded to facilitate any possible appeal of the case.

Additionally, the British Columbia Supreme Court in G (LE) v G (A) established a principle, now widely followed in that province and some others,Footnote 123 that while the trial judge has discretion to interview children if they feel it is in children’s best interests, this technique should only be used if it is necessary and there are no other appropriate options to ascertain the child’s views and preferences. In that case, Justice Martinson noted that:

“[although] the court’s discretion to interview a child, even in the absence of consent, is based on its parens patriae jurisdiction (an inherent power to act in the best interests of children)… [it must be] address[ed]…whether an interview with a child is necessary. In order to determine whether an interview is necessary, the court should consider what other options are available and the appropriateness of those options as an alternative in the particular case before the court.”Footnote 124

This principle was further elaborated upon in Ali v Williams,Footnote 125 which suggested that the judicial interviewing of children must be consistent with the appearance of justice, considering that it may not be appropriate to use judicial interviewing as an option if it might compromise the court proceedings. Case law also exists to support the child’s right to have the contents of a judicial interview kept from their parents as not to alienate either one.Footnote 126 Also with an eye towards protecting the children, the Albertan case S (ME) v S (DA) suggests that judicial interviewing of children should only be conducted when there is reason to believe that the contents of the interview do not contain information that should otherwise be considered as evidence for trial.Footnote 127 In a more recent decision of the Ontario Superior Court of Justice in Ward v Swan, the judge held:

In my view it is not proper to use the judicial interview process in order to contest evidence that may be disputed. The prejudice to the litigants far outweighs any potential probative value…. I will not place [the child] in a position where, through questioning by the judge, where she will be at the centre of a storm that may go further to destroy future family relationships rather than preserve the potential of necessary familial re-integration.Footnote 128

Case law also exists to confirm a judge’s authority to conduct judicial interviews. This principle was followed more recently in the British Columbia cases H (MA) v H (CM)Footnote 129 and Re L,Footnote 130 as well as the Ontario case Demeter v Demeter.Footnote 131 There is also some history of judges suggesting that judicial interviewing of older children is a more fruitful process,Footnote 132 as these children have more to contribute, and can more meaningfully contribute.

While there has been some debate about the merits and risks of judicial interviews among professionals and academic commentators,Footnote 133 there is limited empirical evidence on the views of children and parents about judicial interviews. Based on the social science research to date, the majority of children indicated that they should be able to speak with the judge if they desired.Footnote 134 Reasons for wanting to talk with the judge included: having their views heard by the individual who is responsible for decision-making; better decision-making by the judge; being able to share their views in private and in confidence; avoiding the judges’ possible misinterpretation of their wishes; and the importance of providing input and being acknowledged (even if the judge ultimately made a decision that was not consistent with their suggestions). Reasons for not wanting to speak with the judge included: feeling that it was inappropriate or unnecessary (typically expressed by children in uncontested cases); preferring to deal with family matters within the family; and feeling that it was scary or too formal.Footnote 135

Children’s testimony in court (children as witnesses)

Child testimony involves having the child provide live testimony in the courtroom. In some circumstances, this may be the only way for a court to enforce its orders and protect children from future harm. Special considerations are needed, however, given that children’s court testimony risks pitting children against one or even both of their parents and children may even be cross-examined by a parent or parent’s counsel, which can be a traumatic experience.

In every province, it is possible for a child to be called as a witness. For example, section 18 of Ontario’s Evidence Act allows a child’s evidence to be admitted even if they do not understand the nature of an oath, or if they are able to understand the meaning of the truth. However, it is rare for children to testify in open court in family separation or divorce proceedings, even when all precautions have been taken to protect the child. In most instances, a child testifying in court is seen as too great a burden for a child to bear. Perhaps for this reason, when children’s evidence is given, great weight is given to it.Footnote 136 Judges can always prevent a child from testifying, even when parties, counsel and the child agree to testify,Footnote 137 if the judge deems it to be the correct choice. Courts have also acknowledged this concern. In the 2004 case Stefureak v Chambers,Footnote 138 the court identified “major obstacles to allowing a young child to testify in custody and access cases…[as] the lack of training of the bench and bar in asking developmentally appropriate questions.”Footnote 139

Compelling a child to testify may not always be in a child’s best interest if there is any hint of “taking sides” with one parent, as this may put undue pressure on the child. This concern is further addressed in Sparks v Sparks, where the Alberta Court of Queen’s Bench held that since “the Court should avoid putting children in positions where one or both parent might see them as choosing one over the other,” that “all other reasonable avenues should be explored before acceding to such a request.”Footnote 140 Academics have similarly noted that “since family law proceedings are intended to promote the best interests of a child, it would be inconsistent with the objective of these proceedings to allow a child to participate in the proceedings if doing so would be detrimental to the child or the child’s relationships.”Footnote 141

When a child’s potential testimony adds little weight to the matter at hand, the judge is less likely to have that child testify. This is because “having to testify would likely be traumatic… and while it might not cause long lasting damage, it would nevertheless cause… real harm that could last for some time.”Footnote 142 This typifies the balancing that courts attempt in both trying to access the views of the child, while protecting them from possible traumatic experiences. This principle also holds that from the perspective of the child, within the consideration of whether to admit a child’s hearsay evidence, there is a deliberation on whether that child will be traumatized by testifying. If the child will, then the hearsay evidence is more likely to be admitted, as it is more necessary.Footnote 143

One must note, however, that the practice of children testifying in court is much more common in Quebec. Section 34 of the Quebec Civil Code states that “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.”Footnote 144 This can result in children as young as nine or ten years old being able to testify more regularly than in other provinces and territories. The court may be modified for them, as the questions posed to the children are screened by the court, and parents are sometimes asked to leave the courtroom and not always given a copy of the transcript.Footnote 145

A growing body of social scientific literature on the psychological and physiologic consequences of appearing in court has supported modifications of courtroom procedures. To decrease the stress children may experience when appearing in courts, available accommodations may range from allowing children to hold comforting objectsFootnote 146 to being accompanied by a support person while testifying.Footnote 147 Research has found considerable variability in views about the competence of child witnesses and the need for special protective measures in court for these witnesses. Given that very few family disputes are resolved by a trial, testimony in court is rarely a vehicle through which children’s views are heard, so this method remains the exception rather than the norm.

Post-Court Order for Opportunities to Hear Children’s Voices

Once the court has made a final order for parenting time and decision-making responsibilities, some families continue to need the assistance of family justice related services. Likewise, parents should not stop hearing children’s voices simply because the court has rendered a final decision. Post-court opportunities are important given that children will continue to develop and mature as the family attempts to integrate the new regime. Specialized services have been developed across Canada to work with families post-court order to ensure that the children remain safe, that the parents follow the requirements of the order, and to assist when minor modifications are needed to respond to the changing needs of the family.

Child-Inclusive Parenting Coordination

Parenting coordination is a form of dispute resolution targeting separated parents who remain entrenched in conflict and continue to experience difficulties implementing court orders and parenting plans.Footnote 148 Parenting coordinators can be lawyers or mental health professionals working to decrease conflict between the parents and to keep their dispute outside of the courtroom. Parenting coordination is gaining more popularity in North America and although research on its efficacy is still scarce, the literature is demonstrating promising results, including: reduction of families involved in high conflict;Footnote 149 decreases in court filings;Footnote 150 and reductions in time spent by the courts in managing these cases.Footnote 151

The practice of including children in the parenting coordination process is relatively new and has the potential to provide children with additional opportunities to have their voices included in parenting plan decisions. Listening to children’s voices helps parents resolve their child-related disputes and reduces parenting conflict. As part of a pilot project in the Montreal area,Footnote 152 ten high conflict families received free child-inclusive parenting coordination services. Based on the program evaluation, children reported a decrease in the intensity of the conflict between parents over the course of parenting coordination. Approximately half of the children shared examples of improvements in their lives, mostly to do with better communication between parents. Children’s negative evaluations of the process included reports that they did not feel heard by the parenting coordinator and a perceived lack of neutrality of the parenting coordinator.

Despite the perceived benefits of child inclusive parenting coordination, there is no consensus as to whether children should be given a voice in parenting coordination. In the Parenting Coordination Guidelines published by the Association of Family and Conciliation Courts in 2005, the directions about child inclusion are vague and the decision to include them is left to the parenting coordinator.

Joan Kelly, a pioneer in parenting coordination, has emphasized the importance of meeting children as part of the parenting coordination process, noting many benefits including empowering children and increasing efficacy of the intervention. To achieve the potential benefits, research and the practice of parenting coordination can be further developed. For example, research and practice directives could address the absence of training and experience standards for working with and interviewing children within the role of parenting coordination. Also, questions remain about the cost of this fee-for-service option for families to manage their court order requirements, which may mean that parenting coordination is not an option for most Canadians.

Children’s Voices in Supervised Access Services

Supervised visitation services, also known as supervised access and exchange services, or child contact services, are offered through various distinct programs around the world. All of these services have the common goal of facilitating contact between parents and their children. Supervised visits allow parents to visit with their child under the supervision of trained service providers at a safe and neutral place. Supervised exchange allows one parent to drop the child off at a neutral place to facilitate the exchange of the child to the other parent to spend time with them offsite and unsupervised, without the parents having to meet.Footnote 153 Although government-based supervised access services are not available in all Canadian jurisdictions, these services are used to prevent child maltreatment, to reduce the risk of harm to both parents and children, to improve parent-child relationships, and to provide written accounts of the factual observations of the visit.Footnote 154

An assumption of most supervised access and exchange services is that children benefit from time spent with both parents.Footnote 155 However, few empirical studies have directly involved children to explore their experiences and understanding of supervised access and exchange services. Studies have noted that children are typically not aware of the decisions about supervised services, which can create ambivalence about using these services.Footnote 156 Indeed, most children reported that the decision to use supervised services was made without their input and many were not provided with information about the supervised services prior to the first visit. Consequently, many of the children reported that they were confused about the reasons for using the supervised services and most of the children reported that they did not feel they could talk to their parents or the staff about their feelings and experiences of using the supervised services.Footnote 157

Summary of Methods

Exploring opportunities for including children’s voices in the continuum of the legal process provides a framework for exploring two types of methods. These methods include opportunities for children’s voices to be heard within the courts (e.g., court-based child-inclusive methods) and opportunities for children to have their voices heard in earlier stages of the family justice system (non-court child inclusive methods). There is no one method that fits all the different pathways through which parents and children may resolve parenting disputes. It is important to assess the family’s needs early in the court process so that specific methods can be used to augment the children’s voices while helping parents to resolve their parenting plan issues without lengthy court involvement.

Based on the review of the methods above, further attention is needed to consider how best to integrate children’s voices within non-adversarial approaches so that they may more fully participate in parenting plan decisions even if the parents are able to reach agreements outside of the courts. For families who are unable to resolve parenting plan issues on their own and need the court’s assistance, there are a range of options available for hearing children’s voices and integrating them into the court’s decision. Choosing the right method for children will depend on a number of factors which will be consider in the subsequent chapters.