For those of you who are fans of the TV series “The Simpsons,” you will know that one of the characters, Helen Lovejoy, wife of Reverend Lovejoy, is often heard to bemoan the phrase “Please, Think of the Children.” In an animated comedy TV show, geared for older children and adults, we may laugh at the situations in which such a comment is professed. However, for those parents whose children are in the middle in the adult family law conflict, they regularly find themselves at their wit’s end, asking anyone who will listen, “Who will think of my children?” In such cases, it is no laughing matter.
As a family law lawyer, my clients will ask me “at what age” will the court listen to what their children have to say. This can be in regards to who they want to (and don’t want) live with, who they want to (and do not want to) have access to, and any conditions to both of these issues. As I tell them, there is no magic age – not 8, 10, or 12 – which they find quite disappointing. Instead, the facts of the case will dictate whether there is a need for a child’s wishes, preferences, or voice to included. In this blog, I will set out the circumstances in which the child can be heard, how to get that process started, and offer some thoughts on what not to do.
The first and most common way to get the children’s wishes and preferences brought to the court’s attention are through the Office of the Children’s Lawyer (often referred to as “the OCL”). This is a government agency which has the option of hiring a social worker, a lawyer, or both to represent the children in court, so they do not have to go to court. I will touch upon this last emphasized point a little later. Either party is free to bring a motion to ask for the judge to order the involvement of the OCL. If so requested, both parties must complete a rather lengthy intake form and submit it to the OCL within seven days. Sadly, some parties will conveniently forget to complete the form, either to delay the OCL’s involvement, the case itself, or both. If they agree to get involved, an OCL representative will respond accordingly. There is no fee for the parties to file the form or pay for the service if the OCL decides to get involved. As mentioned, they may order a specialized child-focused family law lawyer to represent the children, and perhaps appoint a social worker to assist the lawyer. If a social worker does get involved, they will produce a written report called a “section 112 report,” referencing section 112 of the Courts of Justice Act of Ontario, which gives the court the authority to order such a report.
However, under the current financial times we live in, clients need to be aware that the OCL is selective of which cases they will and will not get involved in. A judge cannot order the OCL to be involved – they can only recommend it. It is now a rarity in non-high conflict family law cases to have the OCL involved.
If the OCL turns the parties down, some may consider asking the court for an order for a section 30 assessment. This refers to section 30 of the Children’s Law Reforms Act (CLRA). These assessments are done by specialized social work professionals. They are sought when there may be concerns about the mental health or wellbeing of the parents, the child, or both, as it relates to their roles. The assessor would meet with the parties and the child/children, likely with other participants. After many meetings and clinical assessments, they would generate a written report for the parties and their lawyers, providing them with their professional conclusions. Unlike the OCL requests, these assessments present certain challenges.
a) very costly – anywhere from $5,000.00 to well into the tens of thousands,
b) time-consuming – they can take up to a year, or more, to prepare, and
c) are often contentious, as the recommendations presented to the parties are often polarizing.
You should discuss this option with your lawyer and get the pros and cons of getting one done before committing to it.
Finally, family law clients now have a rather new option to get a child’s views before the court. It is called a “Voice of the Child” Report, and it is somewhat of a “blend” between the first two options. Unlike a section 112 OCL Report, it will offer the client’s expressed viewpoint. Unlike a section 30 assessment, it is non-therapeutic. A trained professional will meet with the child (like in both options above), but not in a clinical mind frame. Such a report is started by way of a motion to the court and ordered by the presiding judge. If so ordered, the professional will meet with the child, discuss the case with the child, get their thoughts, wishes, and preferences about the case, and then prepare a written report to present that child’s “voice” to the court. This second-hand evidence is preferable to a judge meeting with the child or children in their chambers, which, as mentioned earlier, could be very traumatic for the child/children.
As with any evidence presented to the court, a judge is not bound by such a report. Rather, it is evidence for them to consider in deciding what is in that child’s best interests (at the end of the day, this “best interests” test, and not the child’s “voice/wishes/preferences,” is of paramount consideration for the court).
On a concluding note, over the past little while, I have seen an increase in parties bringing their pre-teen or teenage child/children to court to get them to speak to the judge directly in the courtroom. This often happens with self-represented parties who may see this on television shows or movies, thinking it is both acceptable and a good idea. Let me clear. It is neither acceptable nor a good idea. Judges will look quite unfavourably on parties who bring their child/children to court to give them evidence of what they want. They will voice their displeasure in open court, often embarrassing and/or angering both the parties and the child/children. This is not the way to have the children heard, and it can often turn a potentially successful case into a certainly unsuccessful one.