Written on behalf of Long Shariff & Associates
Children can often be overlooked in family proceedings, despite being significantly impacted by the outcomes of the issues being decided. Legislation directs courts to consider the views and preferences of children, acknowledging their rights distinct from their parents. This approach recognizes a child as an actor in their own right, at moments in contentious disputes when they may be vulnerable and their best interests are being assessed.
A Voice of the Child report is one way that a child’s views may be introduced into judicial proceedings, which records a child’s stated views and preferences. This information recognizes the child’s individual interests and is meant to assist the court in determining issues impacting the child. Notably, that input carries increasing weight as the child matures. While some parents may be hesitant to obtain a Voice of the Child report, as this exposes the child to conflict, the same considerations apply to high-conflict cases. Judges have found that participation in family proceedings is valuable and can ultimately benefit children.
Courts Recognize the Right of Children to Participate in Matters Involving Them
In making a parenting time or contact order, courts must consider the best interests of the child. In doing so, the courts are required to consider the views and preferences of the child, pursuant to section 16(3)(e) of the Divorce Act. A Voice of the Child report is one way in which a child’s perspective can be heard in a family proceeding where the issues affect them. In the case of Medjuck v. Medjuck, the Court noted that it is important to recognize the agency of children and to hear their own voice before parenting decisions are made. It also recognizes the individual rights of the child.
The United Nations Convention on the Rights of the Child states that children who are capable of forming their own views should have the opportunity to be heard in proceedings affecting them, and to express their views. In M.A.A. v. D.E.M.E., Justice Benotto found that the right of children to participate in matters that affect their future is fundamental in family law. In S.S. v. R.S, the court noted that the requirement to consider the child’s views in the Divorce Act is consistent with the Convention. This human-rights-based approach recognizes children as a distinct individuals from their parents and empowers them in decisions affecting their lives.
Child’s Input Increasingly Important as the Child Matures
When making decisions regarding a child, these decisions are enhanced when there is input from the child themself. Determining parenting and decision-making ability will usually be the most consequential areas where the child’s perspectives should be heard. However, the Supreme Court of Canada in A.C. v. Manitoba (Director of Child and Family Services) recognized that the extent that such input impacts the best interests of the child assessment varies, but that any input certainly “becomes increasingly determinative as the child matures.” The age of the children is an important consideration in determining the weight to be given to a child’s views. In R.G. v. K.G., the court stated that the “degree to which the court will follow the wishes of the child will depend upon the age and level of maturity of the child and will be subject to the judge’s discretion” as they determine the child’s best interests.
In the case of G. (B.J.) v. G. (D.L.) from Yukon, Justice Martinson remarked that younger children in particular, can provide information on a range of topics which can lead to better decisions for children and have a greater chance of working successfully. For example, they may have “information to offer about such things as schedules, including time spent with each parent, that work for them, extra-curricular activities and lessons, vacations, schools, and exchanges between their two homes and how these work best. They can also speak about what their life is like from their point of view.”
In Medjuck v. Medjuck, the court took note of the ages of the parties’ children, which ranged from 8 to 17. The judge recognized that the oldest child would be nearly 18 years old by the time of trial and it was unlikely the court would make a parenting order given his age, particularly after he had already chosen to reside with his father, therefore a Voice of the Child report would not assist the parties or the Court. The younger children, however, were 14, 12, and 8, and different considerations applied, therefore their voices should be heard.
Child’s Participation Important Even in High Conflict Cases
Parents may be concerned that ordering a Voice of the Child report and hearing the child’s views and preferences in court can insert them into the litigation and into the conflict between their parents. This issue surfaced in M. v. F., where the Court had previously ordered a Voice of the Child report and the father wished to cross-examine the report’s author. The father alleged that the views expressed were not independent or freely given and instead suggested that they were the product of the mother’s undue influence.
The challenge was that the cross-examination was directed at the only evidence the Court had about the child’s views, which would undermine the child’s right to be heard. The father stated that he wanted the child to be kept out of the litigation, as he believed this would cause the child distress. However, Justice Kristjanson did not agree that keeping children and their views out of court was the solution. She cited research which proposed that “in most cases, it is the fact of the conflict that is harmful, not the expression of the child’s views.” Moreover, the mere possibility of parental influence should not be a basis for excluding children’s participation and “discounting their expressed views”.
The Court determined that in a high-conflict case such as this, the weight given to the child’s views will be at issue, but those views should nevertheless be put before the court. Since those views are contained in the report, the child has an interest in the cross-examination of the author of the report and any submissions that might be made about those views. Consequently, Justice Kristjanson found that it was in the child’s best interests to have a legal representative to ensure the court had access to those views on the motion.
Similar issues arose in Medjuck v. Medjuck, where it was suggested a Voice of the Child report would perpetuate alienation and reflect parental manipulation. The judge cited and approved a statement in G. (B.J.) v. G. (D.L.), which acknowledged that children have legal rights to be heard, with no exception made for high conflict cases, and that decision makers do not have discretion to disregard the legal rights because of the circumstances of the case. In many cases, the issue will be the weight to give the child’s views.
The Family Law Lawyers at Long Shariff & Associates Provide Guidance on Involving Children in Litigation
Decisions which impact children are frequently the most pressing and contentious in separation and divorce matters. However, in certain circumstances, it is important for the child’s views to be recognized and acknowledged by the parties and the court, before making orders concerning parenting time. The family lawyers at Long Shariff & Associates work closely with clients to provide trusted advice when it comes to exposing a child to litigation in order to protect the child’s best interests.
Our office is located in Stouffville and represents clients in Markham and the Greater Toronto Area. Contact us online or call us at 905-591-4545 to arrange a confidential consultation with a member of our family law team.