Calgary Family Voice Of Child Reports Lawyers at Maclean Law’s downtown Calgary family law office explain the best practices for the use of these reports in today’s blog by senior Calgary family lawyer Peter Graburn. Does the child have the choice in a child custody and parenting dispute or a voice? Should they have their own lawyer or will that just open a can of worms? In the past children were to be seen but not heard but we have come a long way since the 1950’s in child custody cases.
Calgary Family Voice Of Child Reports Lawyers 403-444-5503
“VOICE OF THE CHILD“ REPORTS – Use by the Courts
In a previous post, “Voice of the Child” Reports, our Calgary Family Voice Of Child Reports Lawyers discussed the ways concerned parents can help their children have some input in the decision about where or with who they are going to live, through either in-court or out-of-court (ie. mediation / arbitration) proceedings, including by the use of:
- social workers and counsellors – often not very helpful;
- lawyers for the child – in either an advocate (adversarial), litigation guardian (“best interests of the child”) or amicus curia (friend of the Court) role;
- psychologists – through Practice Note 7 or 8 Reports – usually the most helpful.
Hearing the child’s views and preferences is crucial. The United Nations Convention on the Rights of the Child (adopted by Canada in 1991) sets out 8 procedural safeguards to ensure children’s legal rights are protected, two of the most important (as described by Audra Bayer, Senior Lawyer at MacLean Law’s Kelowna Office) being:
►Legal Representation – “Children should be afforded all appropriate legal representation when their best interests are being formally assessed by courts; … courts should not rely on parents when determining what is in the best interest of children…; parents are there, in often high conflict situations, because they cannot agree on what is in the best interest of the child”, and;
►Obtaining the Child’s Views – “The role of the child’s lawyer goes beyond providing the child’s views to the court. In fact, a second safeguard, ensuring that the child’s views are heard, is only one of the eight safeguards” (emphasis added).
Calgary Family Voice Of Child Reports Lawyers Explain Canada’s Approach
Recognition of these fundamental principles by the UN Convention on the Rights of the Child is important, but how has the principle of adopting Voice of the Child Reports been viewed and accepted by Canadian Court recently? Peter Graburn one of our senior Calgary Family Voice Of Child Reports Lawyers analysed this issue and provides a great summary of the law in the area.
Unfortunately, Courts in Alberta have not recently dealt with this issue. However, two recent Ontario Court of Appeal decisions have dealt with the issue, with conflicting results. In the first case (G.R. v. G.K., 2017 ONCA 108) released on February 9, 2017, the Court dealt with a 16 year old girl who had been denied acceptance to a college after she had obtained a Court declaration that she had withdrawn from parental control. While the Court of Appeal dismissed the father’s application to be made a party to the proceedings as the girl was almost 18 by the time the appeal was heard, the Court concluded (at para. 67):
“This appeal demonstrates the importance of the emerging movement to incorporate the voice of the child in all matters concerning minors” (emphasis added).
When the Ontario Court of Appeal decision in G(R) v G(K) was released, it appeared that Voice of the Child Reports would become (subject to available funding) a standard part of every parenting application in Ontario. Unfortunately, on April 4, 2018, the same Court issued another decision (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 (Can. T.S. 1992 No. 3) 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].
So within about a year, the Ontario Court of Appeal has swung from hinting that Voice of the Child Reports should be an integral part of all parenting Applications to holding that they could be too stressful on (even older) children. The Alberta Courts often follow (or hold very similar) opinions to the Ontario Courts. While the Alberta Courts have not yet come out with a strong opinion regarding the use of Voice of the Child Reports in parenting Applications, it will be interesting to see on which side of the issue they land.
Calgary Family Voice Of Child Reports Lawyers Can Answer Whether a Voice Of The Child Report Is Right For Your Case 403-444-5503
Use of Voice of the Child Reports in parenting Applications is a very timely and controversial topic. Calgary Voice of the Child Lawyers can explain the reasons Courts may come down on one side of an issue or the other (often on similar facts), and assist their clients to decide whether a Voice of the Child Report may be a useful tool to determine what is in their child’s best interests in settling parenting arrangements.
