It is important to hear the child’s point of view because the child is unquestionably an interested party in family legal matters. The child’s voice in family law should be considered.
party in a separation. The court and the parties need to determine where and how the child’s
views fit into the issues that need to be determined. It is beneficial for all parties involved in
a family law court case to determine the child’s likes, dislikes, interests, feelings and needs.[1]
United Nations Convention on the Rights of the Child
As per Section 12 of the United Nations Convention on the Rights of the Child (CRC),
“Children have the right to give their opinions freely on issues that affect them. Adults should
listen and take children seriously.”[2] Canada ratified the convention in 1991.[3]
One way to obtain the child’s views and preference is through a judicial interview.
Through the Children’s Law Reform Act, Ontario legislated a judge’s ability to interview
children in family law matters regarding their views and preferences. Such interviews are
generally referred to as “judicial interviews.”
The Children’s Law Reform Act
As per Section 64 of the Children’s Law Reform Act:
“Child entitled to be heard
64 (1) In considering an application under this Part, 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.
Interview by court
(2) The court may interview the child to determine the views and preferences of the child.
Recording
(3) The interview shall be recorded.
Counsel
(4) The child is entitled to be advised by and to have his or her counsel, if any, present during the
interview.”[4]
Judicial interviews may take place in judicial chambers without the presence of parents or lawyers.[5]
In her article “Voice of the Child in Court Proceedings” Linda Thippet-Leary (“Thippet-Leary”), discusses Professor Nicholas Bala’s criteria, to be “considered by judges” when assessing a child’s wishes. The Criteria includes:
- whether both parents are able to provide adequate care;
- how clear and unambivalent the wishes are;
- how informed the expression is;
- the age of the child;
- the maturity level;
- the strength of the wish;
- the length of time the preference has been expressed for;
- practicalities;
- the influence of the parent(s) on the expressed wish or preference;
- the overall context; and
- the circumstances of the preference from the child’s point of view.[6]
“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.”[7]
According to Tippet-Leary, “Judicial interviews remain rare.”[8] She cites Madam Justice
Claire L’Hereux-Dubé and Madam Justice Rosalie Abella as expressing the view that “essentially, a judicial interview should be used as a last resort.”[9]
[1] Voice of the Child in Court Proceedings, Government Of Canada, https://justice.canada.ca/eng/rp-pr/jr/vcfl-pvedf/ch4.html
[2] Section 12 “Respect for children’s views”, the United Nations Convention on the Rights of the Child, https://www.unicef.org/child-rights-convention/convention-text-childrens-version#:~:text=Best%20interests%20of%20the%20child%20When%20adults%20make,or%20by%20other%20people%20when%20this%20is%20needed.
[3] UN Treaty Body Data Base, United Nations Human Rights Treaty Bodies, CRC – Conventions On The Rights Of The Child, https://tbinternet.ohchr.org/_layouts/15/TreatyBodyExternal/Treaty.aspx?CountryID=31&Lang=en
[4] Section 64, Children’s Law Reform Act, R.S.O. 1990, c. C.12, https://www.ontario.ca/laws/statute/90c12#BK97
[5] Voice of the Child in Court Proceedings, Government Of Canada, https://justice.canada.ca/eng/rp-pr/jr/vcfl-pvedf/ch4.html
[6] Voice of the Child in Court Proceedings, Government Of Canada, https://justice.canada.ca/eng/rp-pr/jr/vcfl-pvedf/ch4.html
[7] Chapter 4: Methods for Including Children’s Voices in Family Law Matters, Government of Canada, https://justice.canada.ca/eng/rp-pr/jr/vcfl-pvedf/ch4.html
[8] Voice of the Child in Court Proceedings, Government Of Canada, https://justice.canada.ca/eng/rp-pr/jr/vcfl-pvedf/ch4.html
[9] Voice of the Child in Court Proceedings, Government Of Canada, https://justice.canada.ca/eng/rp-pr/jr/vcfl-pvedf/ch4.html
Written By Erick McKinlay