The UN Convention on the Rights of the Child provides that where a child is capable of forming his or her own views he or she is to be afforded “the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.” ¹ Although this provision is not legally enforceable in Canada, Courts have become increasingly interested in methods of ascertaining the children’s views and preferences within the context of custody and access disputes.
Courts have previously relied upon the jurisdiction afforded to them under s. 112 of the Courts of Justice Act², and s. 30 of the Children’s Law Reform Act³ in order to gather relevant evidence in relation to the children who formed the focus of custody and access disputes as between their parents. Section 112 of the Courts of Justice Act provides the Courts with jurisdiction to ask the Children’s Lawyer to investigate “all matters concerning custody of or access to the child and the child’s support and education”. Section 30 of the Children’s Law Reform Act gives the Court jurisdiction to order an assessment of “the needs of the child and the ability and willingness of the parties or any of them to satisfy the needs of the child”.
These tools, while helpful, are often too blunt an instrument in many custody cases and the Courts have looked for other ways to canvas a child’s opinion and input in a more straightforward manner. In 2016 the Law Foundation of Ontario began a pilot project that offered Courts another option for ascertaining a child’s views with respect to custody and access cases. Under this pilot project Courts could order a non-evaluative report that would set out a child’s views in response to various questions asked of them by expert clinicians. These reports came to be known as “Voice of the Child” reports, and were conducted by a clinician who would interview the child on two occasions. The clinician would then issue a report setting out the child’s response to various questions intended to give the child the opportunity to speak to the issues in dispute in the litigation.
The pilot project ended March 31, 2017, yet parties have continued to make use of the Voice of the Child Reports since that time. While it has been suggested that the Courts lack the statutory authority to order a Voice of the Child Report (there is no specific legislative provision granting the jurisdiction to order such a report), a recent decision by the Honourable Madame Justice Kiteley of the Ontario Superior Court of Justice provides that the court has regulatory authority to order it pursuant to Rule 20.1(3) of the Family Law Rules, O.Reg. 114/99.
In their June 21, 2017 paper summarizing the Voice of the Child Project, Rachel Birnbaum and Nicholas Bala conclude that the Voice of the Child Reports are a “valuable addition to the ‘family justice toolbox’” for Ontario Courts, an opinion that is echoed within Ontario courtrooms. This conclusion, and the recent announcement by the Ministry of the Attorney General that the Office of the Children’s Lawyer will be offering Voice of the Child Reports throughout Ontario, suggests that these reports are poised to become more prevalent in custody proceedings. Counsel are advised to familiarize themselves with the Voice of the Child Report and the relevant (though limited) case law in relation thereto.
1 Convention on the Rights of the Child, 1989, C.T.S. 1992/3; 28 I.L.M. 1456; 3 U.N.T.S. 1577; G.A. Res. 44/25
2 R.S.O. 1990, c. C.43.
3 R.S.O. 1990, c. C.12.
4 “Views of the Child Reports: The Ontario Pilot Project – Research Findings and recommendations” for presentation June 21, 2017, Toronto, Ontario.