Gone are the days when a family law judge would tell a child’s counsel in a custody and access case that they should have their mouth washed out with soap for even broaching the idea of a judicial interview with the youngster. It happened to Toronto family law lawyer Martha McCarthy in the early ’90s. “I suggested a judicial interview with a child. The Children’s Law Reform Act provides that a child’s views and preferences shall be taken into account to the extent they can be ascertained. I said to the judge, ‘I’d like you to interview the child,’ and he said, ‘I will not — and you should have your mouth washed out with soap for even suggesting it.’”
Until recently it’s been a no-no in Ontario family law: judges talking directly to the children has been largely considered “politically incorrect; that is not the way we do things in Ontario,” says McCarthy. These days however, some judges are dipping their toes into the once-scalding waters of interviewing and meeting with children, albeit in varying degrees depending on the individual and jurisdiction. Bottom line: it’s an emerging issue that has its controversies, say lawyers.
While children’s voices have always been heard in these matters, they’re usually vocalized through a third party, says Cathryn Paul, an Oakville family law mediator and agent with the Office of the Children’s Lawyer. “It does happen now in Ontario that a judge will meet with a child in chambers, but it is fairly rare here because there are other ways to bring that voice into court,” she says.
But a dialogue happening now in Ontario could result in adding another tool to the kit for judges in these matters, including a system that assists in hearing from children directly, says McCarthy.
In spring 2011, a province-wide committee co-chaired by McCarthy and Dan Goldberg of the Office of the Children’s Lawyer, was struck under the umbrella of the Advocates’ Society and the Association of Family and Conciliation Courts, Ontario chapter, to write a discussion paper that will include draft guidelines for judicial interviews/meetings with children in custody and access cases, she says.
The committee, made up of judges, family lawyers, and mental health professionals, wrapped up a series of Ontario-wide town hall meetings with family law stakeholders in December. “The goal is to continue the dialogue about ways to put the child’s voice before the court, provide some suggested guidelines for when judicial interviews are more or less appropriate, and set out considerations for judicial interviews when they are occurring,” says McCarthy.
The idea isn’t to eliminate the already-tried-and-true methods that include mental health professionals, social workers, and/or the Office of the Children’s Lawyer, but rather add another option for certain cases that would benefit.
Toronto family law lawyer Murray Maltz says he has had clients who wanted their children to testify and “the judge has not been particularly receptive to it,” even though the Canada Evidence Act does provide that “. . . a person of any age is presumed to be competent to give evidence . . .”
And, of course, every situation will not call for it. Justice Ruth Mesbur, for example, in the 2010 alienation case S.G.B. v. S.J.L. wrote: “I do recognize that children’s wishes and preferences are relevant to determining their best interests, particularly in the case of older children such as JB. That said, the court does not have to hear from children directly to find out what their wishes and preferences are. . . . I saw no benefit in meeting with the boys in the course of the trial. To the contrary, I saw only negative effects in doing so, which is why I did not.”
“There are cases in which it will not be appropriate,” says McCarthy. “But there are also situations in which children want to have a say, or in which an entire dispute can be resolved by a judge speaking to a child, with great efficiency and savings for all. Think about a teenager whose parents are fighting about whether he should go on a trip over the summer; both parents say the child wants to spend the summer with them, but in five minutes a judge might discover the child would rather go to camp.”
Maltz says there is an ongoing discussion around the concept that in some instances children should be heard by judges directly, but in his experience, through the current method of third-party assessors, the “truth is ferreted out.”
The discussion paper idea evolved over three years, says McCarthy, after she had a conversation at a conference with Justice George Czutrin, Toronto’s chief family law judge. McCarthy says Czutrin had many international judicial colleagues who were surprised to hear that judges don’t regularly meet with children in Ontario. He suggested that renewed, thoughtful discussion about judicial interviews should be engaged to see if the current attitudes and approaches were best for serving children and families in custody cases. “I said to him, ‘Let’s do a program together.’ We went to the Law Society [of Upper Canada] and put together a program that became known as ‘The Voice of the Child.’ The program is a full day, multi-disciplinary, and starts with the co-chairs emphasizing that this is a dialogue and there is no right or wrong answer. . . . It’s a true colloquium.”
The first was held in March 2009 and the third will be held this year on March 28. “At the end of the first year there was really a lot of interest and discussion and flexibility and people talking about all kinds of circumstances in which interviews were helpful or appropriate. Judges came and talked about how they have had interviews with children; they told stories about times that it worked and didn’t work. Custody assessors, social workers, children’s lawyers, child protection lawyers, and all kinds of family lawyers attended. We had a very diverse representation and there was way more flexibility and openness to discuss and consider the issue than I think anybody thought,” says McCarthy.
After the second conference, McCarthy says there was a consensus that, “we should be writing down some guidelines for judicial interviews — circumstances under which they’d be recommended or not and if they’re conducted, what should happen.”
There was also some change noticed, particularly in Toronto, after that conference. “We’ve seen an increase in judicial interviews in Toronto, though you’d still have to describe them as rare. But it is happening that judges are meeting children, lawyers are asking at motions and case conferences if the judge will see a child,” says McCarthy. “What I would say we saw as a trend emerging from our conferences is that there can be circumstances in which a judge or the family find interviews to be helpful. So we had judges telling stories about learning about a child’s particular extracurricular interest and taking that into account in fashioning a remedy, or a judge meeting with children after having rendered a decision to explain what was decided to the child.”
McCarthy says her opinion falls in the middle of the spectrum. “I think the forensic interview can be problematic and there’s real issues about procedural fairness,” she says. “During a trial I would have serious concerns about a forensic interview occurring. . . . But I am in favour of talking about it and being open to circumstances in which it can be a very helpful thing to everyone in the process, including the child.”
For her part, Paul says while she recognizes she may be biased, she believes Ontario’s OCL system is effective and, in fact, an unusual approach as compared to the rest of North America to bring children’s voices to family law matters. “It’s rare that I hear anything as complete as what the Office of the Children’s Lawyer does.
“I will often hear from kids they just want their parents to fix it, to solve it, and they don’t want to make the decisions. They appreciate being heard about some things but they don’t want to be the ones who ultimately make the decisions,” says Paul. “You also have cases where there is strong alignment or estrangement or alienation and those are much more tricky and I think can be very hard to analyze based on only one meeting in a place that is not comfortable for children. It will take some kids several meetings to warm up to me and I’m not that scary. . . . I don’t have decision-making power.”
Paul says she doesn’t like the idea of the judicial interview and thinks it would have to be an extremely rare case that it would be the best option.
Maltz says he thinks “it is incredibly difficult for a child to be in a situation of divorce and separation. For the most part children love both their parents and to force the child to testify and give evidence against one or the other or put a child into a trial that’s adversarial in nature would be devastating.”
The town hall meetings have shown that diverse practices are already occurring “across the country and the province,” says McCarthy. “There are some judges who have never and will never interview children. There are some who already regularly meet with children, five days a week.”
She says the discussion doesn’t come without its concerns. For example, there is a provision in the Children’s Law Reform Act that says the conversations are supposed to be recorded, but that’s not happening at the moment.
And, she adds, that part of the mix is the proposition from the assessors that they do it best, arguing they see the child on several occasions, build a rapport and “that’s the way to do it. It’s a big issue. Other concerns we’ll deal with in our paper include questions like, are we going to have more judicial education, or judges who specialize in this, what the basic considerations are including who should be in the room, whether they are recorded, and what happens with the recording.”
McCarthy says what has emerged is “very diverse views and diverse experiences. I’m really glad we did the town halls because it’s going to give a level of authenticity and buy-in.” At the end of the day, she says: “There are all kinds of different children and problems and different ways of putting the children’s voices before the court.”
The paper is targeted for release this month at The Voice of the Child program.