18 - Hearing the Voice of the Child in Custody/Access Cases

Ontario Family Law Podcast - Episode 16 - How to conduct the Family Law Trail

18 - How to Hear the Voice of the Child in Custody/Access Cases

Should We Hear What Kids Want?G. (B.J.) v. G. (D.L.) 2010 YKSC 44
3      The Convention, which was ratified by Canada, with the support of the provinces and territories, in 1991, says that children who are capable of forming their own views have the legal right to express those views in all matters affecting them, including judicial proceedings. In addition, it provides that they have the legal right to have those views given due weight in accordance with their age and maturity. There is no ambiguity in the language used. The Convention is very clear; all children have these legal rights to be heard, without discrimination. It does not make an exception for cases involving high conflict, including those dealing with domestic violence, parental alienation, or both. It does not give decision makers the discretion to disregard the legal rights contained in it because of the particular circumstances of the case or the view the decision maker may hold about children's participation.
4      A key premise of the legal rights to be heard found in the Convention is that hearing from children is in their best interests. Many children want to be heard and they understand the difference between having a say and making the decision. Hearing from them can lead to better decisions that have a greater chance of success. Not hearing from them can have short and long term adverse consequences for them. While concerns are raised by some, they can be dealt with within the flexible legal framework found in the Convention.
How Do We Hear What Kids Want?Judges Interviewing the child in chambers (or another private place)
Permitting the child to testify
Through the evidence of trained professionals (social workers/psychologists)
Through the evidence of lay witnesses (parents and their supporters)
Through a legal representative Appointed for the Child
Authority for hearing the childThrough lay witnesses
On motions: Family Law Rules, Rule 18(19) – permits hearsay in affidavits
At trial:  R. v. Khan – necessity and reliability
Through a legal representative
Courts of Justice Act, s. 89(3.1)
Rule 4(7) of the Family Law Rules 
Role of the child’s counsel is a contentious issue
Advocate for the child’s view – Strobridge v. Strobridge (1994), 4 R.F.L. (3d) 169 (O.N.C.A.)
Advance best interests regardless of child’s views – L. (A.G.) v. D. (K.B.) (2009). 65 RFL (6th)  146 (O.N.S.C.)

One of the hottest topics in Family Law and Divorce Law is how to hear what the children want.  Ontario Family Law says that children must be heard in proceedings that affect them. This episode of the Family Law Podcast was recorded live at lecture that John Schuman gave to a group of legal professionals on how to give children a voice in child custody and access proceedings.  John goes over the latest research on whether children should be heard in those cases, and if, so what role they should play.  He then, discusses in detail, the various ways that a judge, family arbitrator or mediator can hear from the child.  This podcast also gives the legal authority for each of those methods for hearing the child’s views and preferences and discussed the advantages and disadvantages of each.  It explains when putting a child’s voice before a court is a good idea, and when it may get a parent into trouble. 

Authority for hearing the childJudge’s interview 
Children’s Law Reform Act s. 64
Also provides rules – must be recorded, child entitled to representation
Through a professional
CLRA s. 30 authorizes an assessment, but does not speak to reporting child’s views
CJA s. 112 – authorized the Children’s Lawyer to investigate and provide a report on all matters concerning custody or access
Rule 21 sets out the rules and procedures, including the procedure to oppose a report
R. v. Khan  - necessity and reliability
Permitting child to testify
Evidence Act (Ontario) s. 18
 B. (A. D.) v. E. (D.) 2007 NSSC 182 – calling child is evidence of bad parenting
Vasquez v. To, [2005] AJ No 1486 (QB) – permitted child to testify on narrow issue
How important is it to give kids a voice?Bala and Birenbaum – study going on 5 years
Some kids don’t want to have any input, but most do
Do not want to make decisions, just want their concerns heard
Judges comfort with this varies by geography
Quebec, Ohio, California, New Zealand, Germany all have children speaking directly to judges.
All the judges who speak to children find it helpful, even if discussion is not forensically relevant
Often the child’s comments (not necessarily opinion) are helpful in settlement discussions
Guide to the Basics of Ontario Famly Law - an easy to understand book to help with separation, divorce, family court, mediation, arbitration and child welfare

An easy-to-understand guide to Ontario Family Law for non-lawyers. Click on the cover above to purchase on Amazon.

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This special edition of the podcast is a rare, complete, discussion of hearing children in custody/access and divorce cases.  It provides indispensable information and advice for anyone who thinks that a child should be heard in those proceedings. 


This podcast is a recording of a lecture that John Schuman gave to legal professionals on how to hear the voice of the child.  That lecture also featured slides, which provided additional information, including the citations for may of the authorities mentioned in this podcast.  Those slides will appear on screen on the version of the podcast that can be downloaded from iTunes. Those same slides are on the left  of this page on desktop computers or below on mobile devices for listeners who are not using the iTunes version of the podcast.


The Ontario Family Law Podcast is a companion to the book, Guide to the Basics of Ontario Family Law, which is available as an e-book for Amazon Kindle or Kobo, and as an iBook for iPad, iPhone and Mac, or as a paperback for $25.00 (or less) from Amazon and other fine book sellers.   Anyone who has to deal with issues related to child custody, child access or parenting after separation should rely on them for  give easy-to-understand information and advice about how the law applies to their case and what are the best ways to address their concerns.   It even has a special section on hearing from children in custody and access cases. The book also covers all the other related family law issues, such as child support, spousal support, property division and restraining orders.  To get your copy of the   click on the picture of it to the left.

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Thousands of people tune into the Ontario Family Law Podcast every month to get valuable pointers on family law, divorce and separation issues.  Please feel free to share this podcast with your social network using the sharing buttons below.  The host of the Ontario Family Law Podcast, John Schuman, is a Certified Specialist in Family Law, practicing in Toronto.  If you would like to contact him, either call the number at the top of this page or fill out form below and click “send.”


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