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CUSTODY AND ACCESS - DOES MY CHILD HAVE A VOICE?
Updated: Jun 15, 2020
As a family law lawyer, I often have clients ask how their child’s voices may be heard by the Court. As previously discussed, custody and access disputes boil down to what is in the child’s best interests (for more information on this topic, see my blog “CUSTODY AND ACCESS – THE ULTIMATE QUESTION” https://www.shankarlawoffice.com/post/custody-and-access-the-ultimate-question). Section 24(2) of the Children’s Law Reform Act states that, in determining what is in a child’s best interest, the court may consider the views and preferences of a child, if they can reasonable ascertained. Though the Divorce Act does not specifically contain a clause regarding the views of children, courts have the discretion to consider them regardless. The 2010 Supreme Court of Yukon case of B.J.G. v D.L.G.confirmed that all children in Canada have legal rights to be heard in all matters affecting them, including custody cases. In that case, Madam Justice D. Martinson indicated that decisions should not be made without ensuring that those legal rights have been considered.
The 2004 Superior Court of Justice case of Stefureak v Chambers established four primary ways in which the court may receive evidence regarding the child’s views and preferences. The first method of ascertaining a child’s views and preferences is through the evidence of trained professionals, such as child psychologists and social workers who have had contact with the child. Typically, this occurs with the appointment of the Office of the Children’s Lawyer (for more information on this topic, see my blog “Can my children get a lawyer? https://www.shankarlawoffice.com/post/can-my-children-get-a-lawyer). The second method is through evidence of the parties and their lay witnesses who testify about out-of-court statements made by the child. In my experience, the court applies substantial discretion in determining how much weight to give to this type of evidence from parties – especially in high conflict cases – as alienation or coaching is becoming more and more common. The third method is by means of the judge interviewing the child in chambers. It is important to note that sections 24 and 65 of the Children's Law Reform Act do not impose a duty on the trial judge to interview the child; that is a matter for his/her discretion. The fourth method of ascertaining a child’s views and preferences is by permitting the child to testify in court. The court usually has a specialized child friendly courtroom for this purpose. This method is rare in family law matters.
The 2006 Nova Scotia Supreme Court case of Rice v Abott and the 2013 Ontario Court of Appeal case of Decaen v Decaen established a list of factors to be considered by the court in determining the significance of the wishes of a child, as follows:
1 – Whether both parents are able to provide adequate care [i.e. if there is no real choice about care arrangements, the child's wishes may not be that significant]; 2 – How clear and unambivalent the wishes are; 3 – How informed the expression is; 4 – The age of the child; 5 – The maturity level; 6 – The strength of the wish; 7 – The length of time the preference has been expressed for; 8 – Practicalities; 9 – The influence of the parent(s) on the expressed wish or preference; 10 – The overall context; and 11 – The circumstances of the preference from the child's point of view.
In my opinion, the most commonly referred to factor is the age of the child. There is extensive case law showing that, when making an order regarding a teenager, the order should reasonably conform to the child’s wishes – keeping in mind the other above-noted factors. Similarly, the case supports the making of orders conforming with the stated preference of a child who is a “young teenager” (13, 14, 15 or 16). In matters involving children under the age of twelve, the courts have placed little or no weight to their stated wishes. This is because it is presumed that young children are not mature enough to make a reasoned decision, especially in light of the fact that they are very susceptible and impressionable. It is important to keep in mind that the views and preferences of a child are but one factor to be considered in determining a child’s best interests. In making a decision, the Court must consider all of the circumstances – not just the child’s views and preferences. If you are a party to an ongoing family law matter, or you would like to initiate family law proceedings, and want your child’s voice to be heard, contact us at Shankar Law. WE ARE HERE TO HELP! At Shankar Law, we are happy to assist and guide you through whatever challenges you have in your spousal life. We work in three counties: Huron, Bruce, and Grey and span several cities (#Southampton, Kincardine, Goderich, Wiarton, #Hanover, Dundalk, Walkerton, Meaford, Markdale, Chatsworth), through our two locations in PortElgin and in OwenSound.