Children have the right to an opportunity to be heard. This right to be heard is reflected in Article 12 of The United Nations Convention on the Rights of the Children (UNCRC) of which Canada is a signatory. It is also reflected in the Divorce Act, the Child, Youth and Family Services Act, and the Children’s Law Reform Act.
Involving children in a family law matter can be a complex exercise and must be done with a high level of sensitivity and care. There are various mechanisms in Ontario that are available to parents who are separating and would like their children’s voices to be included in the decision process.
Office of the Children’s Lawyer (OCL)
For matters that are in Court, the Ministry of the Attorney General provides for independent child legal representation through the Office of the Children’s Lawyer (referred to as the OCL). The OCL is a publicly funded legal office that represents children’s legal interests before the court in parenting disputes, child welfare matters, and estate issues. Ontario is the only province that provides a comprehensive child legal representation program.
If you would like your child to be appointed legal representation, you must ask the Court to grant an order appointing an OCL counsel. The service is offered at the discretion of the OCL based on the facts of each situation.
The role of the child’s counsel is to obtain the views and preferences, if any, that the child is able to express. The child’s counsel has a solicitor-client relationship with the child, meaning the child’s consent is required before information can be shared with the parents and Court.
Child-Inclusive Mediation (CIM)
For matters that are not in Court, Child-Inclusive Mediation (referred to as CIM) is a process available to parents that would like to include the voice of their child in their mediation discussion. Obtaining the voice of the children can be very useful as it allows parents to gain a better understanding of their children’s experience and usually assists with settlement.
As a parent, you can request CIM at any point in the process of your mediation. You will be asked to complete an intake form and consent forms. The Child-Inclusive Mediator, also known as a Child-Inclusive Practitioner, will determine the next steps. In some circumstances, such as when there are pending criminal charges or a parenting assessment recently completed, obtaining the voice of the child in the mediation process may not be in the best interests of the child. The Child-Inclusive Mediator will have the discretion to determine whether CIM is appropriate.
Once the parents and the Child-Inclusive mediator have determined that CIM is in the best interests of the child, the mediator will schedule at least 2 meetings with each child. Children are seen individually and not with siblings in the room. The meetings are not normally longer than one hour and at times less. In most cases, the meetings take place at the mediator’s office. Many mediators have child-friendly meeting rooms. Following the meetings, and subject to the child providing his/her consent to share the information, the mediator will meet with the parents to share the information received from each child. A report is not provided. The mediator will only share what the child is comfortable sharing within the context of closed mediation and none of the information can be used for court purposes. With the information received, parents are then encouraged to make decisions that take into consideration what their child has said.
Voice of the Child Report (VCR)
A Voice of the Child Report (referred to as VCR) is a non-evaluative report prepared for parents (and the Court) after meeting with the children. The purpose of it is to assist in the resolution of ongoing parenting disputes. The parents can request the preparation of a VCR at any point in the process of dispute resolution or litigation. They can also be court-ordered.
A VCR will help parents learn the child’s views, perspectives, and preferences for consideration in negotiation, mediation, litigation, and other dispute resolution processes. A VCR can be very useful in the early stages of separation to allow the parents to gain a better understanding of the child’s views and assist with settlement. Much like CIM, the professional preparing the VCR has the discretion to determine whether completing a VCR is in the child’s best interests. The child’s consent is also required.
Most parents appreciate hearing their children’s views and agree that it is in the children’s best interests to be heard. Parents often appreciate that the Report is about what their child had to say and is not a full custody and access assessment about the strengths and limitations of each parent’s parenting abilities.
Most children want to have their voice heard and considered. However, the child may not want to share anything and we must respect their choice. In confidential interviews, the VCR practitioner will allow the child to determine what information is shared with the parents and what is not to be shared. Such assurances of confidentiality can encourage children to be more comfortable and open to sharing.
The practitioner will determine with each parent, where and when the meetings shall take place. There should be at least two meetings with each child and the meetings are individual. Following the meetings, the VCR practitioner will write a Voice of the Child Report which is provided to each parent and the Court (if applicable). The practitioner will only share what the child agrees to share.
