Hearing the Views of a Child in Family Law
Author: Calgary Family Lawyer Mat Wirove
The Family Law Act, and common law have made it clear that the views of the child are one factor to consider when determining the best interest of a child. Further, the United Nations Convention on the Rights of the Child, recognizes that children can have the capacity to understand their own needs and to express those needs and interests to the adults making the decisions for them. Therefore, while it is generally best to prevent children from having to give evidence in court after separation and divorce, there must be a way to properly hear the voice of a child. Here are 8 ways to enter the evidence of a child in family court.
1. Parent Affidavit
If parents are unable to resolve a parenting dispute after separation or divorce and the matter comes before the family court, the most common way the child’s wishes are expressed is through a parent’s affidavit. Here a parent swears to what the child has told them. The issue with this type of evidence, aside from it being hearsay, is that this is likely biased due to one parent’s interpretation of what the child has said or done. Therefore, little weight is given to this type of evidence by the court.
2. Direct Evidence
Direct evidence from a child includes having the child swear an affidavit, or even being called as a witness themselves by a family lawyer. Many judges have determined that it is too traumatic for a child to be a witness at a family law trial. This situation places a child in the position where they are forced to provide answers about their parents to the Court in front of their parents and strangers. This also opens up the possibility that the children will be cross examined by their parents, or lawyers. For these reasons, direct evidence from children is extremely rare.
3. Video or letter of child
This involves a parent attempting to show a video of a child, or a letter written in the child’s own writing. These types of evidence rarely see a courtroom as they raise a significant issue of reliability as the context in which they are made can be suspect. The court is often worried that coaching has occurred or that this type of evidence has been edited to leave out parts that may not benefit the parent trying to enter this evidence. This type of evidence is thus often inadmissible.
4. Third Party Evidence
This type of evidence comes from a trusted adult, such as a teacher, family member, access supervisor, or counselor who has spoken to the child. Unfortunately, this evidence also has issues with regards to hearsay, but can be admissible if found to be necessary. It is generally more reliable evidence than that coming from two competing parents. However, the weight given to these statements will vary depending on the context including, who the child made the statement to, whether it was made to others, how often the child has made the statement, the age of the child, the intelligence of the child and the influence of the parents.
5. Voice of the Child Report
A common method of submitting the wishes of a child in family court is through a written report outlining the statements of the Child. These can be called a voice of the child report or a hear the child report. These reports are generally brief and prepared by a psychologist or family lawyer. A psychologist may be appointed by the Court or by consent of both parents. These reports do not make any direct recommendations about parenting time, but they outline questions that were asked of the child, what the child says, whether the child appears coached, and a general assessment of the child’s capacity.
6. Lawyer for the Child
A family lawyer can also be appointed for children, and sometimes these services are free through Legal Aid. When appointed, a family lawyer must determine what type of role they will take: “Friend of the Court”, Litigation Guardian, or Direct Advocate. Which role a family lawyer for the child takes depends on the individual child. A “Friend of the Court” remains neutral and has no obligation to advise the court of the Child’s wishes. This role takes instructions from the Court and assists the Court in its decision making. A Litigation Guardian, in family law matters, makes a decision on what is in the child’s best interest and makes those submissions to the Court. A Direct Advocate is the more traditional family lawyer role and represents the child similar to the regular solicitor-client relationship.
7. Judicial Interview
A judge at any point during the Court process may request to meet with the child to learn of the child’s wishes and views. This is a rare occurrence and many judges do not feel comfortable doing this. If a judge decides to interview a child it may occur in the courtroom and the parents may be asked to leave. This could also occur in the judge’s office with family lawyers present. However, there are no formal rules or law on how this should occur.
8. Parenting Assessment
A parenting assessment is a more extensive assessment by a parenting expert using psychological testing, interviews of the parties and collateral witnesses, home visits and interviews with children. These assessments are not usually undertaken due to their cost but they can provide a very helpful window into the family after separation and divorce. Unlike a Voice of the Child report, a parenting assessment will include recommendations for parenting time.
There are many options available for presenting the views of a child in family court and each option carries certain risks and opportunities. When deciding which option to choose, the best interests of the child must be the paramount concern for the parents and the court.
If you have any questions about parenting or entering your child’s views in family court you can contact the family lawyers at Crossroads Law. We have extensive experience entering the evidence of children at court.