I feel like no one is listening to what my child wants in this court process.
When you are involved in the Family Court process, often times you will want the Court to hear what your child thinks about parenting issues, for example, how much time they spend with each of you and the other parent.
In many cases it is important to get a child’s views and wishes before the Court. Both the Divorce Act (which generally covers married spouses) and the Children’s Law Reform Act (which generally covers non-married spouses) requires a Court to consider the best interests of the child, known as the “best interests test”.
Part of the best interests test is determining a child’s views and preferences, where they can be determined, and giving due weight based on the child’s age and maturity.
When there are contested parenting issues in a case, particularly with older children, the Court will generally want to hear a child’s views and wishes. Now, this does not mean that your child goes to Court to tell the Judge what they want. Rather, the Court can request the involvement of the Office of the Children’s Lawyer, referred to as the “OCL”.
If the OCL becomes involved in a family court proceeding, they can provide a few different services, for which there is no cost, such as:
1. Providing a lawyer for the child.
Here, the lawyer meets with the parents separately, and then following will meet with your child a number of times to determine their views and wishes. If their wishes can be ascertained, then they advocate for the child based on those wishes and take a position on the child’s behalf.
When a lawyer is assigned, they represent your child until the issues settle or a Court orders that their involvement is no longer needed. This means that the children’s lawyer goes to Court appearances and they are involved in the negotiation process. A lawyer is often assigned for older children, generally between the ages of 9 and 15.
2. Providing a clinician to complete a Section 112 Report.
Here, a social worker or other clinical professional completes an analysis into what is in your child’s best interests. Not only do they determine your child’s views and wishes, but they look at all of the best interests test factors, such as assessing the plans of each parent to care for the child, domestic violence factors, and the child’s relationship with both parents.
Generally, for younger children, the OCL chooses to assign a clinician to prepare a Section 112 Report, rather that assigning your child a lawyer.
They too meet with both parents and meet with the child several times, but they also complete an observation visit where they observe each parent, and the child interact.
At the end of their involvement a Report is prepared, setting out the steps they took and their recommendations as to what is in your child’s best interests. While these are only recommendations, Courts generally give significant weight to an OCL Report.
Unlike the lawyer, a clinician does not go to Court unless they have to give evidence about a child’s views and wishes.
3. Voice of the Child Report
Voice of the Child Reports are often completed by clinical professionals. They are a quick process and involve the clinician meeting with a child a couple of times and obtaining their views and wishes.
The clinician then writes a short report on the child’s views and wishes. They do not outline what is best for the child, but learning your child’s views and wishes can be helpful in settling cases.
What if the OCL won’t take our case?
Unfortunately, the OCL cannot always become involved and when this happens, parents can decide to privately retain a lawyer or clinical professional to obtain a child’s views and wishes.
The OCL can be an incredible resource to have your child’s wishes made known to the Court.
If you have questions and want to know more about how to have your child’s wishes made known to the Court (and to the other party) it’s important that you speak with a knowledgeable family law lawyer.