Should children have a say in custody and parenting matters?

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Should children have a say in custody and parenting matters?

Adam Letourneau, QC, Managing Partner, LETOURNEAU LLP • May 05, 2020

Practice Note Assessments, Interventions and Voice of the Child Reports in Custody and Parenting Matters

May 5, 2020 -

Adam Letourneau, QC, Managing Partner, LETOURNEAU LLP

I often have parent clients ask me whether it would be advisable to have their children or teenagers participate in custody or parenting court matters. I tell them that it can make a difference in certain circumstances, and it is worth considering. In others, it is best to keep the children away from the conflict and the adult decisions that need to be made.

Generally speaking, as a society, we try to avoid having children come to the Courts to participate in stressful dispute situations. As such, in Alberta, we have some different options available to allow children to have some input into the outcome of their parent's dispute regarding parenting.

The Court of Queen's Bench has two formal options available. One is called a Practice Note 8 or a Parenting Time / Parenting Responsibilities Assessment. The second is called a Practice Note 7 or Intervention. The former is a more comprehensive assessment completed by a neutral psychologist or registered social worker, by Court order, who conducts one or more interviews, and sometimes psychological or other tests, on the disputing parties, the children and possibly other involved third parties such as grandparents or teachers or physicians. The assessment can take anywhere between 3 to 12 months, depending on the complexity. The College of Psychologists has rigorous expectations of their psychologists, so often a lot of investigation and detail is required. The expert then writes up a report (can be anywhere from 12 to 100 pages) with recommendations to the Court regarding parenting scheduling, parenting responsibilities and any other concerns or recommendations related to the children.

A Practice Note 7 Intervention is an opportunity for the parties and often the children to meet, by Court order, with a neutral psychologist or registered social worker who will meet with the parties and the children and will try to help them come up with better ways to conduct parenting, including scheduling and responsibilities. The expert will then provide a report on what the parties have agreed upon or have done, or what the expert believes should potentially be done moving forward. This is a less formal report.

These two options are often well regarded by the Courts as the Court usually respects the fact that the neutral expert has been directly involved and has met with all affected parties. Judges are not able to do this work themselves. The fact that the assessor is neutral is very important. These two options can also be extremely expensive, running anywhere between $5,000 and $40,000 depending on the complexity of the matter.

Another option that I have seen used more often lately is a Voice of the Child Report. Again, a neutral third party is ordered to meet with the children, and often with the parents, to assess what is potentially going on with the child, and to provide a report on what the child is saying in terms of preferences, problems in the homes, or other ancillary issues. The report usually does not provide recommendations as to where the child should reside, for example, but does hopefully reflect what is really going on. There can be evaluative reports or non-evaluative reports depending on what the Court or the parties are seeking from the expert. The Voice of the Child Report or VOC Report can also, sometimes, reflect whether there is a risk that parental alienation is occurring with the children by either parent. In a Voice of the Child Report, there is usually no assessment of, or recommendation made about, the child’s best interest. A Voice of the Child Report is usually less costly than a Practice Note 8 assessment or a Practice Note 7 intervention, but can still cost quite a bit - anywhere between $1,000 and $2,500, from what I have seen, depending on the complexity of the matter.

Another option that I see utilized more in Alberta is to have legal counsel appointed for the children. This is done by Court Order, and can be by consent between the parties, or by a judge's order. The parties will usually either share the cost of this lawyer for the children, or sometimes the Court will order that a lawyer be appointed for the children through Legal Aid, with the ultimate costs for that lawyer's services to be determined by a judge down the road. Lawyers who represent children have specialized skills, and will usually meet with the children on a few occasions, privately, without the parents present. Hopefully, they will develop some rapport with the children, and will then obtain their instructions as to what their preferences or concerns might be in the parenting situation. This is called instructional advocacy. The lawyer will then report to the parents or to their lawyers, as well as to the judge, as to what the children, as their clients, are saying about the situation. It is also possible, in certain circumstances, for a lawyer to act as something called amicus curiae (friend of the Court) and to then advocate for the best interests of the children, even where the children cannot provide proper instructions to their lawyer, or where the lawyer as amicus is concerned that the children may not be able to provide unbiased instructions, such as where serious parental alienation is a problem.

Article 12, UN Convention on the Rights of the Child, states that:

States’ Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

The Courts have not necessary followed this important requirement from the UN in all cases. There seems to be some inconsistency when it comes to the use of Voice of the Child Reports, although I have often seen them used and respected by judges in Southern Alberta matters. There has been some concern about a decision from the Ontario Court of Appeal (Mader v. McCormick, 2018 ONCA 340) refusing a father’s request that the children (age 13 and almost 16) be granted their own lawyer, finding that it might be embarrassing, uncomfortable and burdensome to the children. The father claimed the Court was obliged to follow the United Nations Convention on the Rights of the Child and appoint counsel for the children. The Court disagreed, stating (at para. 13):

"This remedy [appointing a lawyer for the children] should not be available only for the asking. In as much as it implicates the children very directly in the entire litigation, it is a very blunt instrument indeed. It can cause untold harm to impressionable children who may feel suddenly inappropriately empowered against their parents in a context where the children should be protected as much as possible from the contest being waged over their future care and custody. All actions involving custody and access over children should be governed by one paramount consideration: no one should be allowed to act in a way that might endanger their well-being. The test of “the best interests of the children” as insipid and fluid as it might be, still remains the benchmark against which any person wishing to interfere in their lives should be measured [emphasis added]."

Discuss this situation with a lawyer if you come across this particular problem.

One last comment on this topic. I have often heard judges say that children should have a voice, but not necessarily a choice. The judges have taken the view that adult decisions need to be made by adults. Age can make a difference here. If a child is 14, 15, 16 or 17, I have often heard judges say that any order made affecting that child would be very difficult to enforce. A child of this age makes their decisions with their feet, so to speak. Children in the range of 11 to 13 years old seem to have more influence on judges when their voice is heard, but I would not say there is any certainty to an outcome on that basis. Every child is different, with different maturity levels, for example. Each custody or parenting matter is unique, and a judge must determine what is in that child's best interests, looking at all factors involved in that particular situation.

These are just some of the options and considerations available. I have used all of these options at various times in my custody and parenting litigation matters. I also have represented many children as both instructional advocate and amicus. I have found the Court to be respectful of me in that role, and often my submissions have been used in making decisions. I have also found the Court to be quite deferential to the expert reports provided, whether they be Practice Note 8, Practice Note 7 or Voice of the Child Reports.

If you require advice or help obtaining child custody or parenting orders, please contact us. The team of family law lawyers at LETOURNEAU LLP are trained in these complex matters, and we would be pleased to assist you in either negotiating a solution, or in representing your interests or your children's interests in the Courts. Consider calling for a free consultation with one of our LETOURNEAU LLP Family Lawyers at 403-329-4311 to discuss your family law matter. See you soon.

This article does not constitute legal advice.

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