How Can the Children’s Voices be Heard?
In contested custody and access proceedings, it can sometimes be important for the children themselves to be heard. The Court and lawyers rely on professionals to gather and provide this useful and important information to assist in determining what is in the children’s best interests.
There are various ways that children can be heard in the Court process.
OFFICE OF THE CHILDREN’S LAWYER (OCL)
The Office of the Children’s Lawyer is a branch of the Ministry of the Attorney General. They fund the services of either a clinician or a lawyer to assist in providing the relevant information to the Court.
In order for the Office of the Children’s Lawyer to become involved an order is required from a Judge asking the OCL to become involved. The parties then complete intake forms and send these to the OCL along with the Court order. It is then at the discretion of the Office of the Children’s Lawyer whether or not they will get involved.
A clinician’s report is generally more appropriate for children who are younger. The clinical investigator meets with the child as well as both parents over the course of a few meetings. They also consider collateral information available from medical professionals, the children’s daycare or school and/or other individuals in the child’s life. The clinician then makes recommendations with regards to the custody and access arrangements in the form of a report based on what is found to be in the best interests of the child.
For older children who are able to express their opinions, the OCL can appoint a lawyer to represent the child in Court. This does not mean that the child has to go to Court; rather the lawyer speaks on their behalf. The lawyer tells the parties and the Court what the views and preferences are of the child in relation to the parenting plan. A report is not issued by the lawyer. However, a disclosure meeting is often held with the parents to discuss the child’s position in order to try and facilitate a resolution.
It is important to note the difference between the two – the clinician’s report is based on the best interests of the child while the lawyer discloses the views and preferences of the child.
The downside of these reports is that they sometimes can cause delays in the Court process as it can often be a lengthy and time-consuming process. As well, the parties do not get to choose who the clinician or lawyer is – they are appointed by the OCL.
PARENTING PLAN ASSESSMENT
These are assessments conducted by private assessors who are mental health professionals who have knowledge about the law and Court process. The assessments can either be Court ordered or completed on the consent of the parties. Parents do not have to be in Court to proceed with an assessment.
Similar to the clinician report produced by the OCL, parenting plan assessments are case-specific. The assessor conducts multiple meetings with the parents and children as well as home visits. They also consider collateral information from other individuals and professionals involved with the family. The amount and type of information that is gathered depend on the issues specific to the parties and the case. These assessments are useful where the competency of one or both parents may be an issue.
A written report is provided at the end of the assessment which includes recommendations regarding the parenting arrangements. These reports are in-depth and may include referrals to other useful resources or professionals to address any issues that may have been identified in the course of the assessment process.
The downside of these assessments is that they can be very costly. They may also be a lengthy process depending on the amount of information that is required.
VOICE OF THE CHILD REPORT (VCR)
The purpose of this report is to allow the children an opportunity to express their views and preferences to the Court. Similar to assessments, they are conducted by private assessors. The reports can either be Court ordered or completed on the consent of the parties. As with assessments, parents do not have to be going through a Court process to obtain such a report.
The Voice of the Child Report is a much shorter report than those provided by the OCL or an assessor. The process varies depending on the assessor and the issues; some assessors meet with the parents prior to meeting with the child, and others prefer just to meet with the child. The assessor meets with the child on at least two occasions and up to three in order to ascertain the child’s views and preferences. The assessor does not take into consideration collateral information.
The assessor then produces a report indicating the child’s views and preferences in relation to the parenting arrangements. These reports are non-evaluative and do not state an opinion by the assessor. The report simply summarizes and puts forward the child’s views and preferences. The report can be provided to the Court for the Court’s consideration in custody and access proceedings.
These reports are often more cost and time efficient for parties and are child-focused. However, the downside is that depending on the complexity of the issues, a brief report may not always be the best option.
It is important to remember that these reports and assessments are not determinative of the outcome; they are not about the child making the decisions about custody and access. These are different tools that can used to learn the views and preferences of the child or hear a professional’s recommendations. They also allow the Court to obtain these recommendations in a safe manner that does not require the involvement of the children directly in the Court process. The Court considers the recommendations of the report or assessment and weighs it along with the other evidence provided by the parties. These reports and recommendations can often be used to help facilitate settlement prior to trial.
There are many competent professionals in the Ottawa area who offer these services. It is important to discuss with your legal counsel to determine what the right option for you may be.
Please feel free to contact a member of our Family Law Group for more information or to discuss your options when it comes to custody and access reports.[ssba]