Voice of the Child Report

In the context of parenting disputes, parents often ask whether their child’s views and preferences will be considered before a decision about them is made – by agreement between the parents, by court order or arbitration award. In other words, will the child have a voice on issues that affect them, like how much time they will spend in the care of each parent, for example. The answer is “yes, they will” but there are two caveats here:

1.     Depending on their age, the child may have a voice only but not a choice; and

2.     Steps will need to be taken to elicit that voice, put it out there so to speak, particularly (but not exclusively) in the context of a court case.

Where does a child’s right to have a voice come from?

At the federal (Canada-wide) level, section 16(3)(e) of the Divorce Act requires the court to consider the views and preferences of the child while considering their best interests – to the extent those views and preferences can be ascertained. Here is the wording of the section:

“(3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including

…

(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;

…”

Ontario’s Children’s Law Reform Act (section 24 (3)) contains similar language.

“..giving due weight to the child’s age and maturity…” means that what the child expresses and how must be considered in light of their age and stage of development. Based on this direction, the view expressed by a 5-year-old are likely to be given much less “weight” by the court than those of a 14-year-old, meaning they will have less impact on the determination of best interests.

How are these views and preferences elicited? There are a number of options here (a topic for another blog post) ~ one of them is a Voice of Child Report (VCR), completed either by a private individual, a mental health professional or family law lawyer, or by the Office of the Children’s Lawyer.

Focussing in this post on a privately generated VCR, the professional hired for this purpose meets one-on-one with the child, usually on at least two occasions, and canvasses with them the topic under consideration. This topic may be very general, for example, the extent of care and decision-making authority each parent will have or more specific, for example, the residential arrangements being proposed by each parent.

This professional is skilled at eliciting information from the child in an age-appropriate way. Sometimes, specific questions are posed – again, this depends on the child’s age and maturity. In other instances, information is gleaned from a general dialogue around a topic. The goal is to obtain the child’s views and preferences without creating undue pressure, or making the child feel like they are in the spotlight and must choose a side. Loyalty binds are particularly harmful to children, across the age and development spectrum.

The enquiry is acontextual, meaning that the professional does not meet with the parents or any other professionals who may be involved in the matter, for example, therapist and the child’s educators and health providers. The focus of the enquiry is the child – and their views on the topic being addressed.

Once the professional determines that they have communicated with the child sufficiently to elicit their views and preferences, he or she prepares a report – either for one parent, or both – depending on who commissions the VCR.

The author of the VCR is not expected, at first instance, to indicate in the report whether he or she believes the child is being influenced in expressing their views and preferences by one of the parents. Skilled and experienced professionals who prepare such reports pay close attention to this issue in any event ~ they watch and listen for signs that the child may be influenced but they are not expected to comment on their observations. In situations where one parent alleges the other is putting undue pressure on the child, it may make sense to ask the professional to specifically address this issue in their report – in other words, comment openly on whether or not, in the professional view of the author, the child was speaking their own mind or expressing ideas introduced by someone else.

What about age limits, are there any? The legislation does not provide us with any guidance in this respect but it is has been generally accepted, by way of practice, that VCR reports are suitable for children over the age of 8. In a recent decision in the Superior Court of Justice, Tellier J. ordered a VCR report for a 6-year-old, with the caveat that if the professional completing the report found eliciting the views and preference of such a young child in any way challenging based on their maturity, she should abandon the task or address the issue in her report.

To learn more about my Family Mediation & Parenting Coordination services, please visit: www.mettamediation.ca or call us at (905) 898-8500.

©AJJakubowska