Do Kids’ Opinions Count, in Family Law?

April 15, 2014
Ron Shulman

Article written by Ron Shulman

It’s an often-heard comment:  It’s the kids who suffer most when their parents separate and divorce.  Although this is undoubtedly true in many cases, in Ontario there is a concerted effort to at least ensure that the “voice” of the child is heard and taken into consideration by the parents in resolving their disputes and by the family courts that hear cases.

The principle behind this is obvious:  Since children are inevitably and profoundly affected by their parents’ settlement agreements and by the court orders that spring from the dispute resolution process, it is only fair that their views and wishes are at least considered before their lives are involuntarily and irrevocably changed in terms of which parent has primary care, where they will be living, and how often they see the non-custodial parent.

But how and when is the voice of the child heard?    In Ontario, there is no mandatory legislative or other process which ensures that the child’s voice is heard and incorporated into the parents’ agreement or the court’s order.  Nonetheless, the voice of the child is routinely solicited at several different junctures during the litigation and dispute-resolution process.

The most common – and often most useful – point is during mediation between the parents.  It is also taken into account during the custody evaluation (i.e. “home study” or “family assessment”) which is an integral part of the pre-trial process.  In Ontario, these are prepared by the Office of the Children’s Lawyer, which is experienced in assessing the overall family environment and dynamic.    In certain situations (often involving high conflict parents), there may also be focused assessments which hone in on the child’s views in connection with specific issues that arise in connection with custody or access.

Finally, the voice of the child can also be heard and fostered in the traditional way, with the child giving evidence in the courtroom during the trial.   The evidence may be given directly by the child him or herself, or it may be offered through the child’s own advocate (which again, is usually the Office of the Children’s Lawyer), or through the use of an expert witness who will provide testimony to the court.

Do you have questions about how to have your child’s views heard as part of your family dispute?  We can provide guidance.  Contact us for a consultation.