Family law proceedings pose significant challenges for all parties involved, particularly children. In Ontario, substantial efforts are made to ensure the perspectives of children are heard and carefully considered by both parties and the court. Given these proceedings' intricate nature, individuals often face uncertainty about how children's views will be considered.
The evolution of the family law court system underscores the importance of children's views and preferences in judicial decision-making. Children are profoundly affected by the outcomes of their parents' settlements and court orders, making it crucial that their voices are considered before any major changes are made in their lives. The Divorce Act and the Children's Law Reform Act, prioritize a child's safety and well-being and ensures the voices of children are given due weight in considerations.
Recognizing that each child is unique and matures at varying rates, there is no specific age at which children are empowered to decide where they will reside. Various methods are employed to incorporate children's voices into family law matters, typically focused on assisting the court's decision-making, rather than directly involving children in making decisions.
The Best Interests of the Child
Central to these considerations is the principle of the best interests of the child, a legal standard that safeguards a child's physical, psychological, and emotional security above all else in family law disputes. In Ontario, the Office of the Children's Lawyer (OCL) can play a pivotal role in representing children's best interests. This publicly funded office may appoint a lawyer, a clinician, or both, to meet with the children or the family, and represent the child in court or provide a report to the court, ensuring that children's perspectives are effectively communicated and considered.
The Office of the Children's Lawyer
The Office of the Children's Lawyer (OCL) is often involved in providing representation for the child in a court proceeding, preparing a Children's Lawyer Report or a Voice of the Child Report.
Appointment of Children's Lawyer
The OCL can engage as legal counsel for the child. They will conduct multiple meetings for the child, and subsequently deliver their findings to the parents and the court.
Appointing legal representation for the child through the OCL is advisable. These lawyers are trustworthy, offer impartiality and advocate for children's perspectives in legal proceedings. There are specific scenarios where appointing a lawyer for a child may not be necessary, including where: (a) a full assessment has been made; (b) the appointment of a lawyer would significantly delay the proceeding; or (c) the introduction of a new party might be upsetting for the child.1
OCL Children's Lawyer Report
A Children's Lawyer Report provides valuable assistance to judges, lawyers, and families by offering evaluations on inter-parental conflict, parent functioning, parent-child relationships, and the developmental, social, emotional, and educational needs of children. These reports are particularly advantageous as they enable courts to consider the perspectives of children, offering their views and preferences to the court in a manner that reduces the pressure associated with direct court appearances.2 Clinicians for the OCL typically possess specialized training in child and family psychology, adept in understanding and interviewing children. Furthermore, these reports can facilitate resolution in contentious parental disputes. However, it is important to note that the comprehensive nature of Children's Lawyer Reports often necessitates several months to complete, potentially prolonging the judicial process.
OCL Voice of the Child Report
The OCL prepares Voice of the Child Reports, which encapsulate a child's perspective on specific issues related to decision-making or parenting time. These reports are conducted for children aged 7 and above, offering them a platform to express themselves without undergoing formal assessment. The Voice of the Child Report serves as a streamlined alternative to a Children's Lawyer Report, providing crucial insights to the court in a shorter timeframe.
It is essential to recognize that the appropriateness of a Voice of the Child Report varies case by case. While it expedites the process compared to more extensive investigations, it remains a valuable tool for courts to gain pertinent information about the child's views.
Judicial Interviews
Finally, judicial interviews, as authorized by the Children's Law Reform Act in Ontario, are conducted by judges when deemed necessary, especially in cases where other forms of child representation or assessment are absent. This approach underscores the judiciary's commitment to understanding the unique circumstances and perspectives of children involved in family law disputes.
In summary, the Ontario family law framework endeavors to uphold children's rights and ensure their voices are heard through various structured approaches, ultimately aiming to secure outcomes that prioritize their well-being and safety.
Footnotes
1 Collins v. Petric, [2003] W.D.F.L 328.
2 Rockel v. Kent, [2011] ONSC 4034.
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.
