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Judge may ascertain child’s views and preferences through a judicial meeting

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Judge may ascertain child’s views and preferences through a judicial meeting

Our summer Student Amelia Rodin recently researched the issue of Judicial Interviews of children, she notes that decisions regarding custody and access have an immense impact on the best interests of the child. In order to ensure that the best interests of the child are met, there are three commonly employed methods of incorporating a child’s views and preferences into the judicial process.

Representation of the child by a lawyer is perhaps the most prevalent method, and children are often assigned a lawyer from the Office of the Children’s Lawyer to represent their interests. Expert reports written by professionals such as social workers or psychologists are also used to communicate the child’s preferences to the court in an unbiased manner. Perhaps the least common method of ascertaining a child’s views and preferences is through judicial interviews, or meetings between a judge and child . Judicial interviewing has historically been a controversial method for determining a child’s views, and whether the court embraces this approach is largely based on the judges comfort level and training.

However, in appropriate situations, judicial interviewing may be an important supplement to legal representation and expert reports . In G. (L.E.) v. G. (A.) the court identified three main purposes for judicial interviews with children:

Obtaining the wishes of children; making sure children have a say in decisions affecting their lives; and providing the judge with information about the child.

An interview can occur at many different stages of a case, and in G. (B.J.) v. G. (D.L.), the court held that:

Judicial interviews can take place both at the more informal judicial dispute resolution stage, such as at a family case conference or a settlement conference, and during more formal court hearings and trials.

In the Ontario case P.L.M. v. L.J., Justice R.J. Harper conducted a judicial interview with a 12-year-old child for the purpose of hearing her wishes in regards to custody issues.

In this case, the child was not represented by a lawyer from the Office of the Children’s lawyer, but had seen a therapist who had submitted a report to the court. Despite the therapist’s records, there were concerns that the child did not feel heard by the court.

The interview was held privately in the judge’s chambers and recorded. In addition to the judge and the child, the court reporter, court services officer, and the child’s therapist were present.

Throughout the interview, the child was able to express feelings of parental alienation, and describe situations of deep conflict between her mother and herself. In consideration of the insights provided by the interview, as well as the totality of the evidence presented throughout the case, the judge ordered custody to the father.

For the full text of the decision, see:

P.L.M. v. L.J., 2008 CanLII 35923 (On S.C.).

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com.