Court Cases & Orders

Incorporating the “Voice of the Child” – One Example of How It Can Be Done

Written by Russell Alexander / (905) 655-6335

 Last week I wrote about a case called O. (B.T.) v. A. (A.), 2013 CarswellOnt 17790 (Ont. C.J.), which involved a separated mother who wanted to move with the children back to Nigeria, and a father who objected to the move on several grounds, including the fact that Nigeria was a dangerous place and posed a risk to the health and safety of the children.

In addition to dealing with that issue, the court was also asked to consider a more narrow question: how should the wishes of the children about the proposed move should best be received, and to what extent should they affect the court’s decision?

This examination is triggered because of an international convention to which Canada is a signatory, called the “U.N. Convention on the Rights of the Child”, which makes in mandatory in such cases for a court to receive and take into account the children’s wishes. (This is also required under Ontario’s Children’s Law Reform Act).

However, the manner in which the court is to receive this information is not prescribed or mandated anywhere.

In this particular case, the parents fulfilled the requirement by agreeing to hire as a joint neutral witness a person who has been trained by the Office of the Children’s Lawyer to interview children. This individual (who happened to be a lawyer) was not representing the children, but rather served merely as a non-participating witness whose impartial involvement would eliminate the need for them to testify at trial in front of the court and their parents. In this role, the neutral witness read the court records, met separately with each of the parents, and then met with the children three separate times – including once at each of the parents’ homes. She concluded that the children were mature beyond their years, and gave evidence as to what their views on the proposed move were.

With this evidence in hand, it was then up to the court to assess its reasonableness, determine the weight it should be given, and then ascertain how it should affect the outcome on the proposed move to Nigeria.

Here, the court concluded that the neutral witness had indeed used a reasonable process to ascertain the children’s wishes; it also determined that – while the views and preferences of the children were not the sole determining factor on the move to Nigeria – given the children’s age and maturity, they should be given considerable weight.

Even though the court largely accepted independent witness’ assessment in this case, as a more general comment it did query the process by which the children’s “maturity level” was purportedly determined, pointing out that “as we develop better approaches for obtaining the wishes of the children in the future, we need to keep this issue in mind.”

B.T.O. v. A.A., 2013 ONCJ 708 (CanLII)

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About the author

Russell Alexander

Russell Alexander is the Founder & Senior Partner of Russell Alexander Collaborative Family Lawyers.