July 16, 2020
Voice of the Child Report (a “Report”), also known as Focused Children’s Lawyer Reports (those prepared through the Office of the Children’s Lawyer), is a relatively new development in family law matters in Canada.
There is now a greater recognition of the importance of the voices of children and youth (“Minors”) in matters which affect them. However, it is challenging for Minors to be able to express those views in a way that would insulate them from possible harm to the Minors or the family as a whole.
A Report and its underlying child-focused investigation, prepared and conducted in a sensitive, informed manner can support Minors to participate in a family law matter. A Report can help insulate a Minor from being directly involved in a family law matter, where they might otherwise be drawn into the family law matter by a parent attempting to press a child into giving evidence in Court through a letter to the Court or through a request for the judge to interview the child.
A Report can assist the Court in determining the strength and consistency of a Minor’s views and preferences; the maturity of a Minor; how informed the Minor’s views and preferences are.
Unlike a full social worker report by the Office of the Children’s Lawyer or a section 30 custody assessment(1), Reports are intended to inform the judge about the views and preferences of a Minor but do not usually contain the opinion of the professional who prepared the report.
The professional preparing the Report will generally meet with the Minor at least once in the care of each parent, in order to attempt to maintain a balanced environment in which to obtain the Minor’s views and preferences.
Although it is not mandatory in the preparation of a Report, the review of pleadings by the chosen professional may assist in identifying any undue influence on the Minor’s stated views and preferences by a parent or family member or any view or preference that may be expressed out of fear of a parent or family member.
Who Can Prepare a Report?
The Office of the Children’s Lawyer prepares a limited number of voice of the child or Focused Children’s Lawyer Reports.
In the alternative, a Report may be prepared by a lawyer, a counsellor, a social worker or a psychiatrist.
A Report may be ordered by the Court, or prepared on the consent of all parties, without a obtaining a Court order.
Who Pays for a Report?
Unlike a report through the Office of the Children’s Lawyer, which is funded through the Ministry of the Attorney General, with a Voice of the Child Report, the parents pay for it.
A Report is cheaper than a full section 30 assessment. It costs, on average less than $4,000.
It is important to note that even if, due to financial circumstances, one parent pays for all or most of the cost of the Report, the person preparing the Report should be retained jointly and will clarify with the parents and/or their counsel their role and what is expected from the Report.
A Report prepared by someone on behalf of one parent or where the person preparing the Report has clearly taken direction from one parent may be given less weight than a Report prepared from a joint retainer.
A Court may also make an order for a Report to be prepared. Such an order may include specifics setting out the name of the professional that will be retained or directions regarding who will pay for the report.
What are some of the Advantages/ Disadvantages of a Report?
While a Report is cheaper than a full section 30 assessment, it contains less information than a full custody assessment. The Minor’s views, as expressed in the Report, are considered by the Court, however a Report may have less influence than a report of the Office of the Children’s Lawyer or a custody assessment.
A Report does not make recommendations about what is in the best interests of a Minor.
A Report can fill in a number of gaps in the current resources available to include the voice of Minors in family law matters. Significant clinical issues are usually required to be identified in order for the Office of the Children’s Lawyer to become involved or for the Court to order a section 30 assessment. A Report can be sought in most family law matters where the issues involved are quite focused and the Minor is old enough or has the capacity to express views and preferences.
As a Report is limited in its focus, a Report can be completed much quicker than a report through the Office of the Children’s Lawyer or a section 30 assessment.
When is a Report not appropriate?
A Report may not be appropriate where there is an imbalance of power between the parties, for example, where there are allegations of domestic violence or parental alienation.
Additionally, where children are resistant to being involved in the Court process or to express their views, a Report may be of little to no use to the family law matter. Forcing a child against their will to participate in what is otherwise an adult matter could lead to anxiousness or other negative effects on a child’s well-being.
If you have any questions about a Voice of the Child Report or if believe that a Voice of the Child Report would be of assistance in your family law matter, please contact our family law team.
(1) Section 30 of the Children’s Law Reform Act gives the Court the authority to appoint a professional to “assess and report to the court on the needs of the child and the ability and willingness of the parties or any of them to satisfy the needs of the child.