Canada: Voice Of The Child Reports

Last Updated: August 1 2019
Article by Joanna Harris

Voice of the Child Reports ("VOC reports") are a relatively recent development in the growing trend to recognize and incorporate children's voices into matters that affect them.[1]

This blog paper will answer four key questions about VOC reports.

1. What are Voice of the Child Reports?

It can be challenging for children to express their views in court proceedings without being exposed to trauma or causing damage to the family. Children remain part of the family long after a judicial decision is reached. The process of determining a child's true wishes and preferences requires care, for to undertake the process without expertise may further hurt the child and fracture family relationships.[2]

Paragraph 24(2)(b) of the Children's Law Reform Act provides that, in determining the best interest of the child, a court shall consider all of the child's needs and circumstances, including "the child's views and preferences, if they can be reasonably ascertained." In respect of applications for custody, and access, subsection 64(1) of the Children's Law Reform Act states:

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.

Justice Christie describes the importance of finding a way for children to express their views without exposure to further trauma in Flood v. Flood[3]:

Courts, administrative authorities and legislative bodies have a duty to recognize, advance and protect their interests. When children are the subject of a custody dispute or child protection proceedings, they are at their most vulnerable...

A VOC report is not a full assessment. It is a report on what the child states as his or her views and preferences, usually based on two interviews brought separately by each parent. There is no assessment of, or recommendation made about, the child's best interest. The reports are usually prepared by mental health professionals, but lawyers may also prepare the reports. It is common practice (but not universal) for the child to be offered confidentiality and an opportunity to review the VOC report.[4] Children also may be provided the opportunity to consent to the release of the VOC report.[5]

VOC reports are cost-effective, child-focused reports that record a child's views and preferences for the court in a far simpler and quicker way than a full assessment report.

Justice Kukurin recently explained that children's views and wishes are so important to the courts and necessary that evidentiary rules of hearsay are set aside:

A more recent development, at least in Ontario, has been the "Voice of the Child Report". These are in their infancy but indications, following a pilot project, are that they will soon become more widespread as a method to get children's views and wishes before the court. I can think of nothing more hearsay in nature than a VOC report which does not apologize for being hearsay as it deftly slips into the trove of evidence in a case, all with judicial approval, and often judicial reliance for decisions made in the case.[6]

2. Who Prepares a VOC Report?

The OCL may be willing to provide the VOC report, if requested by a court.

Alternatively, a privately-retained social worker or lawyer can complete a VOC report. In Religa v Nesrallah,[7] Justice Doyle appointed a professional to complete a VOC report in respect of a 14 year-old when the parents could not agree on the choice of professional but agreed that a VOC report should be conducted.

3. When is a VOC Report Appropriate?

VOC reports are generally most useful when the issues between the parents are relatively focused, the children are teenagers, and there are no complex "clinical" or parenting concerns involved (for example, child abuse, alcohol or drug abuse, neglectful parenting, or mental health concerns).[8]

VOC reports can be particularly helpful at an early stage of the proceeding where parents disagree about the child's preferences and perspective. The VOC reports allow parents to gain a better understanding of the child's views, which can help resolve issues.

4. When is a VOC Report Not Appropriate?

Notwithstanding the importance of necessity of VOC reports, they may not be appropriate in all situations. Types of cases where VOC reports may not be appropriate include those in which there are allegations of domestic violence, alienation, and where a child does not wish to have contact with one parent.

Additionally, it is clear that not all children want to be involved or express their views; and in those circumstances, the VOC report may have little or no utility.

Footnotes

[1] Bill 57, Katelynn's Principle Act (Decisions Affecting Children), 2016 https://www.ola.org/en/legislative-business/bills/parliament-41/session-2/bill-57

[2] Ontario (Children's Lawyer) v. Ontario (Information and Privacy Commissioner), 2018 ONCA 559 at para. 65.

[3] Flood v. Flood, 2018 ONCJ 822.

[4] Nicholas Bala and Rachel Birnbaum, "Rethinking the Role of Lawyers for Children: Child Representation in Canadian Family Relationship Cases" Les Cahiers de Droit, 59:4 December 2018, pages 787-829 at 798.

[5] Children's Aid Society of Toronto v. M.S., 2018 ONCJ 14 at para 104.

[6] Children's Aid Society of Algoma (Elliot Lake) v. P.C.-F. 2017 ONCJ 898 at paras 11 and 13.

[7] Religa v Nesrallah, 2017 ONSC 1491.

[8] See Rachel Birnbaum and Nicholas Bala, "Views of the Child Reports: The Ontario Pilot Project", International Journal of Law, Policy and The Family 2017 at page 354.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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