In Custody/Access Matters, Should the “Voice of the Child” Be in Brief, and in Writing?
In even the most routine child custody, access and child protection determinations, courts are obliged to consider a vast array of factors that explore what arrangement will be in the best interests of the child. Among the key considerations – particularly for an older child – are the child’s express wishes. For example, in the child custody context, the child’s own views will be explored on topics such as which of two separated or divorced parents he or she wishes to live with.
How Courts Currently Hear the “Voice of the Child”
In Ontario, and for all child-related proceedings and for any decision-maker under legislation impacting children, this purposive inquiry is legally-mandated under several statues, including the Katelynn’s Principle Act (Decisions Affecting Children). The fundamental principle is that “a child must always be seen, the child’s voice must be heard, and the child must be listened to and respected.” This concept is also confirmed and echoed in Article 12 of the United Nations Convention on the Rights of the Child.
As a sort of shorthand in family law matters, this is commonly referred to as the “Voice of the Child”.
Presently, the formal method for identifying the Voice of the Child in child-related matters is through a detailed, labour-intensive, and legislatively-mandated report prepared by the Office of the Children’s Lawyer (OCL) in each case. The report can be prepared only after the child, and everyone involved in his or her life, is exhaustively interviewed by qualified experts. The report must also include recommendations on “all matters concerning custody of or access to the child and the child’s support and education” as a means of assisting judges to make a decision as to the child’s best interests.
While still relatively innovative, there is a more efficient option on the family law horizon in Canada. Called the “Voice of the Child Report” (VCR), it is a briefer, non-OCL-evaluated report written by a social worker, lawyer, or mental health professional. The VCR simply outlines the child’s wishes in a neutral way, with the sole focus being on the child’s views.
Using a VCR results in a more streamlined, efficient, and cost-effective way to keep the child involved, while still providing the court with a sufficiently fulsome, but non-binding, glimpse into the child’s wishes. The weight and impact given to the VCR will depend on numerous factors, including the age and maturity of the child, the clarity of his or her wishes, and how long the particular preferences have been held. Both parents must consent to using a VCR, and they are responsible for paying the cost of its preparation.
Why are VCR’s a Good Option?
A study by two Canadian professors of Law and Social Work, respectively, suggests that the use of VCRs should be widely endorsed by stakeholders in the family law system. After a pilot project to use VCRs in a handful of Ontario court regions, their study involved interviewing parents, children, judges and lawyers on their experience with using VCRs. Most parents and professionals found the shorter reports helpful in resolving disputes. The children also reported that they enjoyed the opportunity to be heard on their custody and access-related wants and preferences.
The authors’ resulting report, titled the Views of the Child Report: The Ontario Pilot Project – Research Findings and Recommendations, suggests that the use of streamlined VCRs has many benefits: It can avoid the intensive interview and recommendation process, keep costs and delay at a minimum, yet still uncover a child’s true wishes around custody and access. Plus, separated parents who opt to use VCRs often find themselves encouraged to settle; the VCR’s straightforward statement of the child’s own, unfiltered sentiments can help parents re-focus on the true objectives behind the litigation in which they are often embroiled.
VCRs have not been formally adopted or mandated for use in Ontario family law matters. However, in conjunction with the provincial Attorney General’s office, there are plans afoot to explore whether they should be introduced into the court system, through an amendment to the current legislation.
What are your thoughts? Are VCRs a good idea for child custody and access matters?
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