Historically, children in Canada have been excluded from participating in decisions of custody and access.1 There seem to be several reasons for this. First, there are many judges who subscribe to the notion that children will be psychologically damaged if they are involved in the decision making process.2 Second, there seems to be little consensus on how to involve the children in custody and access disputes. Third, historically, children have not been seen as having rights independent of their parents.3 Thus, in the majority of custody and access disputes, parents and judges have been solely responsible for decision making, leaving children without a voice.

1 Ronda Bessner, The Voice of the Child in Divorce, Custody, and Access Proceedings (Background Paper) (Ottawa: Department of Justice Canada, 2002), online: Department of Justice: Supporting Families http://www.justice.gc.ca/eng/pi/fcy-fea/lib-bib/rep-rap/2002/2002_1/2002_1.html at Introduction.

4 Alfred A. Mamo & Joanna E. R. Harris, "Children’s Evidence in Family Law Cases" in Harold Niman, ed, Evidence in Family Law (Canada Law Book, 2009) at 4:10.20.

However, a child’s right to participate in proceedings that directly affect the child is increasingly becoming an accepted approach in family law.4 There have been statutory advances to support this contention. First, Canada has been a signatory to the United Nation Convention

*Alfred A. Mamo, Barrister & Solicitor practices family law litigation, arbitration and mediation at McKenzie Lake LLP, London, Ontario. Danielle Gauvreau is a law student at UWO Law, University of Western Ontario at London, Ontario. Draft for presentation purposes - 2

on the Rights of the Child5 since 1990.6 This Convention places an obligation on decision makers to take into account the views and preferences of children. The section most relevant to the discussion is contained in Article 12, which reads:

5 Convention on the Rights of the Child, 20 November 1989, 1577 UNTS 3, online: United Nations Treaty Collection http://untreaty.un.org.

6 Supra note 1 at 1.3.

7 Supra note 5 at Article 12.

8 Children’s Law Reform Act, RSO 1990 c C-12.

9 Divorce Act, RSC 1985 c 3 (2nd Supp).

10Supra note 8 at s 24(2)(b).

Domestic law also suggests that children ought to be heard in custody and access decisions. The two pieces of legislation relevant to custody and access decisions in Ontario are the Children’s Law Reform Act8 (CLRA) and the Divorce Act9. Section 24(2)(b) of the CLRA reads as follows: "The court shall consider all the child’s needs and circumstances, including,...(b) the child’s views and preferences, if they can be reasonably ascertained."10 This section of the CLRA lists a number of other factors for judges to take into account when making Draft for presentation purposes - 3

Section 64(1) of the CLRA reads: "In considering an application under this Part, a court where possible shall take into consideration the views and preferences of the child to the extent that the child is able to express them."11 The language in this section is more directive in nature, and requires the court to consider the views and preferences of children. The question then becomes whether the child wishes to exercise that right, and if so, whether the child is capable of forming his or her own views. If the answer to each is yes, then due weight must be given to the views expressed.12 While there is no specific age at which children’s wishes will be determinative of the parent with whom they will primarily reside, judges in Canada will typically give considerable weight to the preferences of teenaged children.13 Under the CLRA, the message is that views and preferences of children should be taken into account in custody and access decisions.

11Ibid at s 64(1).

12 Suzanne Williams, "Judges Listening to Children Directly in Separation and Divorce Proceedings: Individual, Institutional and International Guidelines" in George Czutrin & Martha A. McCarthy, eds, Family Law: The Voice of the Child (Toronto: Law Society of Upper Canada: Department of Continuing Legal Education, 2010) 9-6.

13Rachel Birnbaum & Nicholas Bala, "Judicial Interviews with Children in Custody and Access Cases: Comparing Experiences in Ontario and Ohio" (2010) 24(3) International Journal of Law, Policy, and the Family 300 at 309.

14 Supra note 9 at s 16(8).

The Divorce Act also provides for custody and access decisions to be made in the best interests of children. Section 16(8) states: "In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child."14 The Divorce Act does not expressly provide for the views and preferences of the child to be taken into Draft for presentation purposes - 4

Over the years, the development in this area of the law has resulted in several options which are available to counsel and to the court so as to bring the voice of the child into the courtroom: (1) testimony by the child, in court or in the judge’s chambers, (2) hearsay evidence given in court by a witness of information obtained informally, (3) hearsay evidence given in court by a witness of information obtained through a formal interview, (4) evidence by the child by way of a videotape, audiotape, or letter, (5) testimony of a mental health professional after an assessment; and (6) counsel for the child.15

15Supra note 4 at 4:30.10.

was found that children’s evidence was only mentioned in 45% of judgements.16 Despite international and domestic obligations to hear from children in custody and access decisions, most children are rendered silent.

16Noel Semple, "The Silent Child: A Quantitative Analysis of Children’s Evidence in Canadian Custody and Access Cases" (2010) 29 CFLQ 7 at 8.

17 Supra note 8 at 64(2).

18 Stefureak v Chambers, 2004 CanLII 34521 (ONSC).

19Supra note 16 at 15.

The different ways that the child can be heard in family law custody proceedings, as set out above, are not mutually exclusive. The most appropriate mechanism can be determined based on a number of factors in any particular case including the age of the child, the maturity of the child, the extent of involvement of clinicians in a child’s life. The degree to which there has been an assessment or a social work report and whether the child is represented by counsel. The purpose of this paper is to focus on the option of having a judge interview the child as part of the court process. In Ontario, judges are granted the right to interview children by section 64(2) of the CLRA: The court may interview the child to determine the views and preferences of the child.17 While judges have this right, it is rarely used. It is often viewed as a last resort for judges.18 In the study mentioned above, there were no judgments found in which a judge had interviewed a child.19 The common concerns judges have expressed in regards to interviewing children will be discussed.

process in custody and access proceedings.20 Judges in Scotland appear to have a more open attitude towards interviewing children as most judges claim they would be happy to speak to a child if the child wished and none would refuse a child’s request to meet with them.21 In the Netherlands, every child twelve years of age and older is invited to meet with the judge through a standard letter of invitation.22 A similar practice is being piloted in Israel with a standard letter of invitation sent to children aged eight years and older.23 Judicial interviews are also more common in New Zealand resulting in the preparation of formal guidelines for lawyers and judges.24 Similar guidelines are also being considered in England by the Voice of the Child sub-group of the Family Justice Council.25 The sheer volume and acceptance of judicial interviewing of children in custody and access proceedings suggests that perhaps Ontario judges ought not to be so reluctant to be engaged in such interviews.

20 Supra note 13 at 304.

22 Supra note 12 at 9-17.

An informal discussion between the child and the judge can be helpful in determining the best interests of the child. Speaking with the child directly can give a judge a broader picture of the child and the child’s life. It would be much easier to piece together the puzzle of what is in the child’s best interests if one has all the pieces. The judge can learn about what activities the child enjoys, the child’s current living situation, and the child’s likes and dislikes. From this discussion, the judge may glean an understanding of which available parenting arrangement will work best for the child. A discussion with the child may also humanize the case for the judge. As lawyers and judges, it is often easy to forget that real people are involved in disputes and that a custody or access decision will have an enormous impact on a child’s life. Finally, an informal discussion such as this will cause relatively little stress for the child. There would no pressure for the child to choose one parent over the other and the interview would take place in a more welcoming environment than open court. It would be "made clear that the judge is deciding the case, based on an assessment of the child’s best interests, and that the child’s wishes will be considered but are not determinative of the outcome."26 Children understand the difference between providing input into the decision-making process and making the final decision.27 The child’s voice would be heard firsthand in a low-pressure environment and would contribute to the judge’s understanding of the best interests of the child.

26 Supra note 13 at 309.

27 Rachel Birnbaum, The Voice of the Child in Separation/Divorce Mediation and Other Alternative Dispute Resolution Processes (Literature Review) (Ottawa: Department of Justice Canada, 2009) at 9.

place too great a burden on a child. The child may believe that s/he is responsible for the custody and access decision, imposing a great deal of stress.28 Many children would be unwilling to choose one parent over another, resulting in an ineffective interview that would not be helpful in determining the child’s best interests. The child may not even have a preference. This type of interview would at its best be ineffective, and at its worst emotionally and psychologically damaging for the child.

28 Ibid at 14.

29 C.O. v D.O., 2010 ONSC 6328

However, there is a further alternative or category of judicial interview. This interview would take place after a judge has made a decision regarding custody and access and would take place for a much different purpose. In this meeting, a judge would explain the decision and the reasons informing the decision. Historically, the explanation of the decision was left to the litigants, the parents. Parents are often unhappy with the decision made and may project their dissatisfaction onto their children. Hearing from the decision-maker, the judge, would present the decision in a more neutral and unbiased fashion. This meeting would also remind the child that the decision was made solely by the judge and that the child was not directly responsible for the outcome. This would be especially important in cases in which the child has had some form of participation in the decision making process; such as an assessment or prior interview with the judge. Children need to be reminded that the outcome in custody and access was not their fault, nor was the conflict in the parental relationship leading up to the separation.29 This would also remind the child that her voice was heard and considered in decision making, regardless of how impactful it was. Children feel that their views were respected in decision making and are more likely to comply with the final custody and access order. Finally, judges would no longer be able Draft for presentation purposes - 9

Many members of the judiciary and professionals have subscribed to the view that children will be psychologically damaged if they participate in the decision-making process.30 However, this view has been rebutted in the research. "A belief that has been gaining acceptance in recent years is the notion that more harm is caused to children by excluding their views in family law matter than by including them in the decision-making process."31 There is a wealth of literature supporting the inclusion of the voice of the child in custody and access decisions.

30 Supra note 1 at Introduction.

31Ibid at 2.5.

32 Ibid at Introduction.

A children’s right to participate in proceedings that directly affect him or her is increasingly becoming an accepted approach in family law. The more paternalistic approach, to exclude the child, overlooks the reality that the child is already harmed by the turmoil in his home and the stress that litigation has brought upon everyone.32 There is evidence that a lack of participation or input in the decision making process negatively impacts upon self-esteem, Draft for presentation purposes - 10

psychological functioning, and helping children develop competencies.33 Specifically, immediate effects of excluding children and adolescents may include: feeling ignored, anxiety and fear, sadness, depression, withdrawal, confusion, anger at being left out, and difficulty coping with stress.34 Longer term effects of not consulting children include: continuing resentment if living arrangements don’t meet their needs in time or structure, less satisfaction with parenting plans, less compliance with parenting plans, more vote with feet, persistent longing for more or less time with the non-resident parent, worries whether non-resident parent loves the child, and deterioration in parent-child relationships.35 This list contains just some of the potential negative effects of excluding the child in custody and access decisions.

33Supra note 4 at 4:10.20.

34 Supra note 12 at 9-7.

36 Supra note 4 at Introduction.

37 Supra note 12 at 9-7.

There are also positive effects of including children in custody and access decisions. It is argued that when decisions are made with children, rather than about them, children will feel respected and their self-esteem will be positively affected resulting in improved resiliency.36 Focusing on the needs of children early in family disputes can reduce both the intensity and duration of a family conflict.37 Inclusion of children may also be empowering, improve child-parent relationships and the quality of the agreement reached, and assist the child in accessing other supports the child may require.38 The hope is that once the child is heard, parents may make adjustments in their behaviour and begin to focus on what is in the best interests of the child, rather than dwelling on their failed relationship. There is a positive correlation between children’s inclusion in decision-making and their ability to adapt to a newly reconfigured family; as well as their ability to regain mastery and control over what is often a confusing time for them Draft for presentation purposes - 11

post-separation and/or divorce.39 It has also been argued that meaningful participation can be a protective factor during times of parental separation and/or divorce as children are provided with a sense of responsibility and improved parent-child relationships through children’s role in the decision making process.40 Further, there is no research to support the view that listening to children in and of itself is harmful to children.41 Because there are positive effects of inclusion and negative effects of exclusion, children ought to be consulted in custody and access decisions.

39Supra note 21 at 10.

41 Supra note 12 at 9-7.

42 Supra note 13 at 309.

There is a widely held view that generally Judges do not know how to interview children and as such should not do it. This counter-argument to judicial interviewing of children may have some merit as Ontario judges are not typically trained in interviewing children. However, this need not act as an absolute deterrent. First, training and education is an ongoing process for all professionals involved in family law disputes and would greatly assist all judges in any jurisdiction in regard to judicial interviews with children.42 Judges often receive training on various topics throughout their careers. It would not be unduly cumbersome to provide judges with some educational materials on how to interview children. Furthermore, the type of judicial interview proposed in this paper is an informal discussion to learn more about children and thus their best interests. Formal interview structure and intensive training may not even be necessary.

interviewed children in the past.43 Some suggested guidelines include: The judge should use vocabulary and sentence structure that is appropriate to the child’s age and stage of development.44 The discussion should focus on the child’s activities, school, and what s/he does in each parent’s home.45 Questions should be open ended.46 It is preferable not to directly ask children about their preferences for custody or visitation, as this question may induce feelings of guilt or disloyalty, and some children will be very reluctant to provide a direct answer.47 Enough time should be set aside for the meeting that the child will not feel rushed, depending on the child’s age and stage of development.48

43 Supra note 12 at 9-26.

44 Supra note 13 at 329.

49 Supra note 1 at Introduction.

Some argue simply that children have no desire to speak to a Judge. Children often express their desire to be heard in custody and access proceedings. In preparing its report, For the Sake of the Children, the Special Joint Committee of the House of Commons and the Senate of Canada held hearings. At the hearings, children and youth stated that they did not wish to be excluded from proceedings that had a significant impact on their lives.49 Children want an Draft for presentation purposes - 13

opportunity to be heard, and hearing children’s views in family law may be beneficial to children (as outlined above).50

50 Supra note 12 at 9-7.

The concept of an invitation to meet with a judge has been used in other jurisdictions successfully. For example, "in the Netherlands procedural rules or regulations have been developed by the judiciary that require a standard letter of invitation to automatically be sent to every child 12 years of age or older inviting them to speak to the judge directly."51 In Israel, for children 8 years of age or older, a letter of invitation is sent to the child to have a discussion with a social worker of the Court’s social work unit.52 If the invitation is accepted, the child has a confidential discussion with the social worker.53 The social worker prepares a report for the judge and informs the child of the possibility of meeting with the judge directly.54 If the child expresses an interest, the child and social worker meet with the judge in Chambers.55

51 Supra note 12 at 9-27.

52 Supra note 12 at 9-28.

There are also confidentiality issues at stake in these interviews. Some judges are of the view that anything disclosed to them by a child during an interview should remain confidential.56 In this case, the child is likely to speak openly as there would be no anxiety as to how the parent would feel when hearing the child’s views. Section 64(3) of the CLRA requires that the interview be recorded. The interview would have to be transcribed by a court reporter, however that transcript could be sealed by the trial judge. The transcript of the interview would be available to the appellate court if the trial judge’s decision were appealed. This is the practice used in Ohio where judicial interviews are much more common as judges are obligated to meet with a child once, one or more of the parties, asks the Court to meet with the child. In Ontario, section 64 of the CLRA does not place such a duty on judges.57 Confidential interviews make some judges uncomfortable, however, as they feel that the information given by the child may be prejudicial to one of the parties. This is common practice for Ohio judges who find there to be no violation of the due process rights of the parents.58 The availability of the transcript to the appeal judge is protection enough. The crucial element to be remembered here is that the purpose of the interview with the child is not to receive evidence from the child, as such, but to

56 Supra note 13 at 312.

57 Ibid at 315.

58 Ibid at 314. Draft for presentation purposes - 16

The concerns judges have expressed regarding judicial interviews of children can be addressed through education, training, practice and experience. There are definite benefits to interviewing children and many circumstances where a judicial interview would be the most desirable method of ascertaining the voice of the child. First, hearing firsthand from children rather than relying solely on a mental health professionals report or hearsay evidence provides the unaltered voice of the child.59 Second, the judge has the ability to explore more details with the child regarding the options that the judge may be contemplating in his/her decision making.60 Third, hearing from children might expedite a decision in urgent cases and enforcement matters; where there are no services available to assist the judge in decision making or learning the child’s views.61 Fourth, judicial interviews would be helpful in cases when the expense of a

59 Ibid at 306.

61 Ibid. Draft for presentation purposes - 18

mental health professionals report is prohibitive to a family or takes too much time.62 Fifth, the interview can be used as a means of updating an earlier report done by a mental health professional.63 Finally, a discussion between the judge and a child can be cathartic and/or therapeutic to a child.64

Independent legal representation for children, a part from representation by the O.C.L. is rare in custody and access disputes. "The Ontario Bar Association recently reported that 40% of all civil litigants in Canada are self-represented, and that the rate in family court is even greater than this average."65 This means that a large number of parties come to family court without a lawyer. It was found that 93% of children were unrepresented in custody and access cases in a recent study.66 One can speculate that the high costs of legal fees is partially to blame for this phenomenon. Parents may also feel that because they are not paying for a lawyer for themselves, then they should not pay for a lawyer for their children either.

65 Supra note 16 at 19.

66 Ibid at 8.

67 Dan L. Goldberg, "Representing Children in Custody & Access Proceedings" in George Czutrin & Martha A. McCarthy, eds, Family Law: The Voice of the Child (Toronto: Law Society of Upper Canada: Department of Continuing Legal Education, 2009) at 2b-26.

Related to legal costs is the question of whether the parents can cooperate to support an independent lawyer and agree on how the legal costs should be divided. One of the issues with independent legal counsel for children is that the person paying the bills, that is the parent(s), is not the client, the child is. It may be asserted that the child’s lawyer is aligning with the parent paying the legal fees, and this would be unfair to the non-paying parent. Thus, children should never be represented by counsel retained by one parent. That is not in the best interests of the children and does a disservice to the children and to the family.67 In addition, the litigation could be unduly extended as parents argue over the choice of the child’s lawyer and the division of payment.

representation would be provided to the child at no cost to the parents. This would be an effective method of presenting the voice of the child to the judge. However, the OCL is rarely involved in custody and access decisions. Only 3% of children are independently represented, and only a portion of those children are represented by the OCL.68 The OCL is likely to be involved with highly conflicted families that experience poor communication with one another, allege serious alcohol and drug problems against one another, and the children are exposed to neglect and inter-parental violence.69 Unless these circumstances are found, it is unlikely that the child will be given free legal services from the OCL. Thus, reliance on independent legal representation to ascertain the child’s voice will likely be ineffective.

68 Supra note 16 at 8.

69Rachel Birnbaum, "Examining Court Outcomes in Child Custody Disputes: Child Legal Representation and Clinical Investigation" 24 CFLQ 167 at 178.

70 Supra note 4 at 4:50.60.

The OCL can also provide an assessment report.70 While it is not as in depth as an assessment obtained independently, it would also be provided at no charge to parties who qualify. However, as described above, very few children are provided with OCL services, including assessors, to present their views and preferences to the court. Independent assessments can cost thousands to tens of thousands of dollars. Unless the parents are in a high income bracket, independent assessments are unlikely to be provided to the court. Assessment reports are also quite time-consuming and would delay the court process even further. Reliance on assessments in custody and access decisions to ascertain a child’s views and preferences will likely also result in the child’s voice being silenced.

Another method to hear directly from the child, besides judicial interviews, is to have the child testify in court. "It is very rare for a child to testify in family court, and generally considered upsetting and even traumatic for a child."71 Even if counsel seeks to have a child testify or a child appears in court voluntarily, a judge may refuse to issue a summons to a child witness or refuse to permit the child to testify.72 It has been argued that the pressure to choose between parents, fear of hurting a loved adult on whom one is dependent, and the potential for retaliation from a parent can be harmful to children.73 "The imposing atmosphere of the courtroom, repetition of details of an event to strangers in public, cross-examination, and physical separation from a parent or relative are some of the features of proving evidence that are feared will adversely affect children."74 Even with aids to children, like support persons and screens, the testimony of children is viewed as too traumatic for children and is to be avoided in custody and access disputes.

73 Supra note 1 at 3.1.

75 Supra note 4 at 4.60.

The judicial interview was created as a way of minimizing the trauma to child of testing in open court.75 Meeting with the judge in a less formal setting, such as the judge’s chambers, is Draft for presentation purposes - 22

"Judges sometimes think that because of their life experience as a child, a partner, a parent and a lawyer, they can figure out the right result in any family law case they face. They were, after all, selected as judges because they were viewed as having what it takes to make decisions. However, being able to identify these cases, determine the nature of the problem and devise the necessary solutions is not intuitive. Nor is the information and experience required learned from day to day life experience. Yet, making the wrong choices can be harmful to children.76

76 The Honourable Donna J. Martison: "One case: One specialized Judge: Why Courts have an obligation to manage alienation and other high conflict cases." (2010) 4 Fam.Ct.Rev. 180 at pp.187-188.

77 See the comments of Martinson J. in the case of G. (L.E.) v G (A.), 2002 BCSC 1455, 118 A.C.W.S. (3d) 90.

78 See Jandrisch v Jandrisch (1980), 3 Man.R.(2d) 135, 16 R.F.L. (2d) 239 at p. 243 (C.A.) and Demeter v Demeter (1996), 133 D.L.R. (4th) 746, 21 R.F.L. (4th) 54, 62 A.C.W.S. (3d) 98, [1996] O.J. No. 1470 (QL) (Ont. Ct. (Gen.Div.)).

There are two schools of thought on when the court, if it decides to do so, hear directly from the child through giving evidence or a private interview with the judge.77 One approach is to have the hearing at or near the end of other evidence. That way, the court will be in a better position to determine whether the evidence is relevant, reliable, or necessary.78 The other approach is to conduct a hearing at or near the beginning of the trial so that the other evidence can place in context the information received from the child’s evidence or interview. This approach is referred to with approval by Williams J. in his seminal paper on the topic entitled: "If Draft for presentation purposes - 24

Wishes were Horses, Then Beggars Would Ride’-Child Preferences and Custody/Access Proceedings".79

79 See Ward v Swan, (2009), 177 A.C.W.S. (3d) 742, 2009 CarswellOnt 2435, 2009 CanLII 25611 (Ont.S.C.J. (Fam. Ct.)) quoting from G. (LE.) v G. (A)., 2002 BSCS 1455, 118 A.C.W.S. (3d) 90.

80 See Jandrisch v Jandrisch (1980), 3 Man.R (2d) 135, 16 R.F.L. (2d) 239 at p.243 (C.A.) and Demeter v Demeter (1996), 133 D.L.R. (4th) 746, 21 R.F.L. (4th) 54, 62 A.C.W.S. (3d) 98, [1996] O.J. No. 1470 (QL) (Ont.Ct.(Gen.Div.)).

81 G.(L.E.) v G. (A.), 2002 BCSC 1455, 118 A.C.W.S. (3d) 90.

82 Supra, at para. 45.

The decision as to whether a child should testify either in court or in chambers requires an examination of numerous factors and competing interests. A court, in most cases, is unable to make an informed decision in this regard, until all of the evidence on behalf of the parties has been heard. It is only now that the court is in a position to determine the extent to which the children’s evidence in necessary for the integrity of the process and the best interests of the child.80 If the hearing is to take place after all other evidence has been received, however, it is important for the court to determine if there ought to be a procedure to allow the parties to address the information received by the court from the child. As stated by Martison J. in the case of G. (L.E.) v G. (A.):81

In each case, the court can consider not only the general benefits of and concerns relating to a judge’s interview, but also the relevance of the information that may be obtained; the reliability of the information; and the necessity of obtaining the information in this fashion.82

83 Supra note 4 at 4:70.

Because of the nature of the cases, Judges are beginning to hold post decision meetings with children after making a decision in high conflict alienation cases especially when the court has found it necessary to change the residential arrangements of the children against the children’s wishes. In such a case, Justice Mossip conveyed her decision to a 13 and 16 year old boys when she changed custody from their father to their mother. 84 There are other examples of post decision interview being conducted by judges in high conflict cases.

84 Reeves v. Reeves, (2001) O.J. No.308 (Ont.S.C.J.).