What should you do if a child says the family court judge, his parents and even his own lawyer are not listening to him in divorce court?

This is an upsetting situation. However, the perspective on hearing from children is changing in Ontario Family Law. Many judges recognize children have a right to be heard in matters that affect them, provided it is the child who wants to be heard and not a parent trying to get the child to take sides. This webpage has information about kids expressing views in their parent’s divorce process. 

Here is a podcast that has a discussion of what voice a child should have in family law matters. You may also want to look at this article questioning why children have a much greater say in their health care than in where they live. 

Technically, a child does not have to be represented by the Office of the Children’s Lawyer. A child can retain a private lawyer to assist him or her. Judges view this with some skepticism unless it is clear the child was not “put up to it” by a parent. This means the child has to contact the lawyer himself, see the lawyer without a parent present and negotiate the retainer for that lawyer. That lawyer can then advise the court and the OCL that he or she is representing the child and that the OCL is no longer doing so. The court (and the OCL) will likely want to explore the situation to ensure this was not a parent influencing the child. At some point, the child may have to say that he lost confidence in the OCL lawyer. That may take some fortitude, but so will putting a position before the court on his parent’s divorce. However, a child who does all of that to ensure he is heard by the court will convince most judges to at least listen. 

It sounds like you are being “neutral” in this situation, so it would likely be OK for you to assist the child in finding a lawyer. 

Also, it is important to remember that a child expressing a point of view is NOT determinative of any issue. Even if a judge listens, the child will only be a witness, not the decision-maker. After listening, the judge may make a decision that is different from what the child wanted. However, often just knowing that the judge has heard his point of view is enough to get a child “on board” for any decision.

If you want to know the technicalities of the law in relation to courts listening to children, you can see if your local reference library or law library (often in the courthouse) has a copy of Wilson on Children and the Law. There is a long chapter on this issue. The book itself costs several hundred dollars to purchase. So, you will need to find a good library to get a copy.

There is more about children in the family court process, how to navigate family court and many other family law issues in this easy-to-understand best-selling book on Family Law.