By Graeme Kluge
The old adage “children should be seen and not heard” can be traced back to 15th-century England. It is a concept meant to convey that a child’s opinions were not as important as those of adults and they were expected to be quiet and well behaved.
However, some of the beliefs that made sense to past generations may no longer apply as social mores evolve to suit our changing culture. A child’s right to communicate their needs can be important, especially during a divorce. Of course, finding a way to recognize and protect children’s rights can come with challenges.
In any divorce in Canada, a child’s welfare is the court’s overriding concern when making decisions dealing with parenting arrangements and child support. Section 16(8) of the Divorce Act states that in making an order for custody or access, "the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.”
While the needs of a child must be considered, how to give them a voice is often debated.
“Over the past 15 to 20 years, lawyers, psychologists and social workers have recommended that measures be taken by legislators and members of the judiciary to accommodate children in the legal process,” according to one Department of Justice (DoJ) report.
The DoJ points out that it has been “argued that the system of justice is adult-oriented and is not designed to handle cases in which children are involved” and that "children must be protected in the court process in order to effectively tell their story."
“Extreme anxiety on the part of the child may not only have psychological repercussions, it may result in testimony that is incomplete, at times incoherent, and with little probative value,” the report notes.
It is important that a child be heard when it comes to parenting arrangements, but should your child testify in your divorce?
Children on the witness stand
The innocents are invariably caught in the crossfire of any battle. The same can happen in a contentious divorce.
It is uncommon for parents to want to call their children to the witness stand in their divorce. Even when they do, the general public seldom hears about it. But it does happen, as witnessed during the messy divorce of Brad Pitt and Angelina Jolie.
According to media reports, Pitt’s 19-year-old son gave unflattering testimony against the actor in an acrimonious divorce and custody battle.
That son was allowed to testify because he was not a minor. However, it was reported that Jolie criticized the California judge in the couple’s custody case for refusing to allow the testimony of their younger children.
Here in Canada, the Department of Justice has found that “members of the judiciary have been reluctant to allow children to testify as witnesses in custody and access disputes.”
“There is concern that children will be irrevocably harmed by such an experience,” the DoJ states. “It is argued that the pressure to choose between parents, fear of hurting a loved adult on whom one is dependent, and the potential for vengeful retribution from a parent can be damaging to children.
“Concerns have also been expressed regarding the adversarial process that characterizes legal proceedings in Canada. The imposing atmosphere of the courtroom, repetition of details of an event to strangers in public, cross-examination, and physical separation from a parent or relative are some of the features of providing evidence that are feared will adversely affect children.”
Walking a fine line
According to one DoJ report, a child is “clearly an interested party” in the legal system.
“Much information goes before the Court in affidavits, assessments and home studies,” according to the government. “Much evidence is presented about a parent’s likes, dislikes and wishes, and about a child welfare agency’s plan and policy. Yet where does the child’s view fit into all of this? How much does the Court hear about a child’s likes, dislikes, interests, feelings and needs?”
Of course, the best interests of the child does not necessarily mean a family court judge will base their decision solely on what that child wants. A child may prefer to live with one parent because they have free rein. The wishes of the child must be considered alongside what is in their best interest, which can be a delicate balance.
Recognizing a child’s opinion
In recent years we have witnessed new legislation, court rulings and changing views that recognize the importance of including children in divorce, custody and access proceedings where it is appropriate.
“Several reasons have been put forth for allowing a child to participate in custody and access proceedings,” according to the DoJ. “It ensures that the decision-making process is child-centered. It gives children the opportunity to convey their physical, emotional and social needs to a judge which ensures that the decision-making process is not focused exclusively on their parents' views and preferences. Children will know that their views are being stated as clearly as they can formulate them, in the language they choose, without the danger of being misstated by a well-meaning adult.”
The Department of Justice also stated it has been noted that a child’s concerns may not be clearly articulated to the court if their parent’s lawyers are the ones offering the evidence.
“Parents in the midst of a divorce or separation may be vengeful, angry or self-absorbed, and consequently, may not be capable of adequately presenting the views, interests and wishes of the child to judicial decision-makers,” according to the DoJ report.
Alternatives to testifying
Certainly, children have a unique perspective of their own circumstances and the decisions made in a divorce could potentially have a long-term impact on their life. Their input should not be ignored. But is it the right move to call your child as a witness?
As any adult who has had to testify in court knows, testifying can be stressful and intimidating. For a child the anxiety of taking the stand may be much worse. It may also be a tactical legal error, especially if the judge perceives that a parent has pressured their child or unduly influenced their testimony.
However, a child does not have to testify to ensure their views are articulated. Courts can appoint independent legal counsel to represent children in high-conflict parenting disputes. That lawyer can interview the child and report back to the court.
It is also possible to get a Practice Note 7 Intervention Order. According to the Court of King’s Bench, these Interventions can be evaluative that provide information to judges to assist in decision-making or therapeutic “that work toward resolution of disputes, manage conflict and make changes in the existing family dynamic.”
“Interventions are conducted by parenting experts who are registered psychologists or
registered clinical social workers with a combination of education, training, experience and
continuing learning such that the parenting expert qualifies as an expert witness,” according to the King’s Bench.
These parenting experts are not aligned to either parent and are considered impartial observers who share the child’s thoughts, preferences and opinions with the court.
Advice you can trust
The Department of Justice states that children have the right to express their views in court or administrative proceedings as long as they can form their own views. In fact, this right is provided for in the United Nations Convention on the Rights of the Child, which Canada is a signatory.
“The decisions parents and judges make about parenting directly affect children, and children should have a chance to share their views about these decisions. Research also shows that children cope better with the separation of their parents when they have had a chance to express their views,” according to the DoJ.
During a divorce or the end of an interdependent relationship you face decisions that shape your future. The team at Demas Schaefer Family Lawyers understand the emotional
challenges that lay ahead and will work with you to tailor a solution to address your unique circumstances. Contact us today.