Custody & Access: Views and Wishes of the Child

Children are often the subject of a central issue that makes family law litigation so contentious and challenging. Depending on the level of conflict between parents, it can take many months- even years to resolve a parenting dispute. The more high-conflict the relationship is, the longer the procedure usually takes. While parents may quarrel over a multitude of issues, the child of the relationship may experience difficulties in coping with the separation as well, and can sometimes end up caught in the middle between their parents. These children spend many years weathering the storm that is their parents’ divorce, which can potentially have a significant and lasting impact on their lives. Both parents and children caught in family law disputes often wonder: wouldn’t it be fair for the children to be heard in contested separation proceedings? If so, to what degree should the child’s views influence the final decision on parenting issues? What is the best interest of the child?

Subsection 24(2) of the Children’s Law Reform Act mandates that the court considers all of the child’s needs and circumstances when making a decision in respect of custody or access. The subsection lays out a list of factors to be examined in determining what is in the best interest of the child, including “(b) the child’s views and preferences, if they can reasonably be ascertained” [emphasis added].

Those last few words are included in the provision as a qualifier because of several concerns. Firstly, ascertaining the views and preferences of a child is an expensive and time-consuming exercise. Secondly, the child’s views and preferences may not necessarily reflect what the best interest of the child, particularly if what the child says that he or she wishes may have been unduly influenced by adults in the child’s life and may not truly reflect his or her views and preferences.

It is important to remember that the views and preferences of the child, even if ascertained, comprise just one of the many elements that the court looks at in order to conclude what is in the best interest of the child. Other components include but are not limited to emotional ties between the child and each person entitled to or claiming custody/access, the ability and willingness of each person claiming custody/access to provide the child with the necessities of life and any special needs of the child, the permanence and stability of the family unit in which the child will live, and the ability of each person to act as a parent.

How are Views and Preferences of the Child Garnered?

In the decision of Stefureak v. Chambers, [2004] O.J. No. 4253, Justice Quinn wrote that there are essentially four ways by which the court can ascertain the views and preferences of a child:

  1. Expert evidence of professionals well-versed in this domain – such as child psychologists, social workers, psychiatrists, and early childhood educators – who have had contact with the child;
  2. Evidence from the parties and laypeople to testify out-of-court statements made by the child;
  3. The judge interviewing the child in chambers; and,
  4. The child testifying in court.

Evidence From Experts

Evidence from experts, such as members of certain professions including psychotherapy, medicine, social work, and education, can be crucial in identifying the child’s views and preferences. Children often express their thoughts and emotions in unique ways which may not necessarily be congruent with the words and behaviours of an adult. It is for this reason that experts are often engaged in the litigation to observe and speak with the child before making a professional determination as to what the child wishes. This can be an expensive, time-consuming, and invasive endeavour.

Evidence From People in the Child’s Life

Parents, grandparents, aunts and uncles, teachers, and other people in the child’s life can provide evidence on what the child’s views and preferences are. This involves providing an affidavit and/or testifying in court about what the witness saw and heard about the child’s wishes. The judge decides how credible the evidence is, and subsequently how much weight should be placed on the evidence in deciding what the child really wants.

The Judicial Interview

In a judicial interview, the presiding judge for the case speaks with the child privately in the judge’s chambers. If the child has representation, the lawyer may accompany the child in this process. This is a discretionary exercise, which means that the child or the parties do not have an automatic right to this procedure. Even if the parties request a judicial interview, the judge can decline to meet the child if he or she finds that the interview will likely leave negative impacts on the child, or if the interview will not assist the judge in garnering the child’s views and preferences.

Child as a Witness

The courts usually refrain from allowing a child to participate as a witness in a custody/access hearing. This is because most cases that require the view of the child are riddled with parental conflict. Attending court as a witness is an inherently fatiguing task; you are asked by the court to truthfully recount what you have seen and/or heard, often in great detail, and are assessed on the reliability and credibility of your testimony. It is a mentally and emotionally draining endeavour for adults; therefore, it is of no surprise that the court understands that child witnesses would find this exercise even more daunting and alienating, particularly when the subject matter of the dispute is them. This is pretty much the last resort in which the courts will engage when it is absolutely necessary for the child to be on the witness stand.

The decision in Stefureak also specifies that the court is “not permitted to delegate to very young children the disposition of their fate”; this implies that young children’s views and preferences are less likely to be an accurate representation of what is in the best interest of the child in comparison to that of older children, who are more articulate in conveying their thoughts and have more strongly established reasons to support their wishes.

How Much Weight Should be Placed in the Views and Preferences of the Child When Determining the Best Interest of the Child?

Children vastly differ in their maturity and development; this is why there are no numerical limits as to when a child’s voice should or should not be heard by the court. In Rice v. Abbott, [2006] O.J. No. 4889, Justice Blishen wrote that the weight to be given to the child’s views and preferences is “dependant on a number of factors, including age, maturity, and motivation”. She quoted a list of factors that the court must consider when assessing how much bearing the child’s wishes must have on the issues of custody and access in a case from a decision by the Nova Scotia Supreme Court:

  1. whether both parents are able to provide adequate care;
  2. how clear and unambivalent the wishes are;
  3. how informed the expression is;
  4. the age of the child;
  5. the maturity level;
  6. the strength of the wish;
  7. the length of time the preference has been expressed for;
  8. practicalities;
  9. the influence of the parent(s) on the expressed wish or preference;
  10. the overall context; and,
  11. the circumstances of the preference from the child’s point of view.

As you can see, this exercise involves accounting for and balancing of a multiplicity of factors. There is no prescribed hierarchy of values of the factors, and the process is entirely driven by the facts of the case, the experts that will testify, and the level of care and support each caretaker can provide for the child.

My Child Does Not Want to Visit or Spend Time With the Other Parent. S/he has been Refusing to go to Access Visits. How Should I Deal with this Situation?

Courts recognize that the older the children grow, the more difficult their parents (and the court) will experience in enforcing a schedule, especially when the child’s wishes are in direct conflict with the prescribed parenting schedule. They understand that at a certain point, reality must be taken into account and some children simply refuse to partake in building or continuing a relationship with a parent.

Nonetheless, parents do have a positive duty to encourage their child to attend and facilitate the parenting schedule outlined in a court order. In K.(B.) v. P.(A.), [2005] O.J. No. 3334, the court ruled that the resident parent is not entitled to leave the issue of access in the hands of the child. This obligation has been reiterated in numerous family law decisions, including Quaresma v. Bathurst, [2008] O.J. No. 4734 and Hatcher v. Hatcher, [2009] O.J. No. 1343. Simply acquiescing to the child’s refusal to visit the other parent because “that’s what the kid wants” will not be viewed as a tenable argument in the court’s eyes.

Justice Gordon, in his decision for Funnell v. Jacksha, 2012 ONSC 4234, wrote that the resident parent is expected to do at least one of the following if the child refuses to have a relationship with the non-residential parent:

  1. A discussion with the child to determine why s/he does not want to go
  2. Communication with the other parent to advise of the difficulty and discuss how it might be resolved
  3. Offering the child an incentive to go, or some form of discipline should s/he continue to refuse

If a parent does not take reasonable steps to encourage the child to comply with the court order, the parent can be held in contempt of the court, which may result in a monetary sanction or imprisonment.

Closing Remarks

Children are often the subject of a central issue that makes family law litigation so contentious and challenging. If the child’s views and preferences can be reasonably ascertained, it might be a good idea for such views to be presented to the court to assist the judge in determining what is in the best interest of the child. While in most family law cases children are not parties, and therefore do not have the right to participate, nonetheless their perspective can be valuable in finding what is a realistic solution in the context of custody and access.

This blog post is not intended to be legal advice and was written for general education purposes. Consult with a legal professional at Kain & Ball to find out about your parental rights and responsibilities.

The above information is NOT legal advice of any kind, and you should be sure to speak to a qualified family law lawyer about your specific situation. For more information on understanding the best interest of the child, call us at 905-273-4588 or email us at contact@kainfamilylaw.com to book a free 30-minute consultation with one of our experienced family law lawyers at Kain & Ball Family Law.

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