Throughout the pandemic, Ontario family law courts have been inundated with cases of separated and divorced parents clashing over what’s best for their children. Judges have heard hundreds of cases with parents at odds over where their children should live and whether they should attend school in person or do online learning.
Most cases the courts heard over the past year involved disputes over parenting, reports The Lawyer’s Daily.
“Approximately 70 per cent of the 506 cases involved only a parenting dispute, and an additional five per cent involved both a parenting dispute and an economic dispute” over property, child support or spousal support, the online legal news outlet reports.
Often in high-conflict cases, it can be difficult for the court to determine what a child wants or needs. Mom says one thing; Dad claims the opposite. In these cases, one or both parents can ask the court to appoint a lawyer who will represent the child and determine their views and preferences. Every year in Ontario, the Office of the Children’s Lawyer (OCL) assists children in more than 10,000 cases by appointing a lawyer whose job is to act as counsel to a child.
This post will give readers insights into how the process works and why it’s an effective method for assessing a child’s viewpoint.
How the OCL works
The OCL typically gets involved in cases where a child is experiencing significant difficulties as a result of conflict within their family.
I’m a panel lawyer for the OCL and frequently represent children in cases where their parents are in conflict as well as in child protection cases involving the Children’s Aid Society. As counsel for the child, my role is to formulate a position as to their views and preferences on the issue in question, which will ultimately be articulated to the parties and the court.
A common scenario where a children’s lawyer can be helpful occurs when each parent claims the child has told them they want to live with them full time. It’s not unusual in divorce for kids to tell parents what they think they want to hear, but that’s often entirely different from what the child believes.
As their legal representative, my job is to get to the heart of the child’s views and preferences, which can be challenging because, in many cases, there has been a great deal of influence on their thinking by one or both parents. The process can take months or longer and involves multiple interviews with the child. It takes time to establish a safe space where they can express their truth. And they must voice consistent views over an extended period.
In child protection cases involving the Children’s Aid Society (CAS), the children’s lawyer acts solely for the child, not their parents or guardians or CAS. As in other matters, our job is to consider the child’s views and preferences, within the context of other relevant factors, and present that to the court.
The questions I pose and how I ask them will look quite different for a six-year-old versus a teenager. Younger children tend to speak openly once they get comfortable, but it usually takes more time to build rapport with older kids.
In cases involving a dispute over where the child will live, it might seem like a good starting point to ask the child directly, “Who would you rather live with: Mom or Dad?” but that’s not effective. Instead, I’ll ask questions that help me better understand their comfort level in certain situations: “What do you enjoy doing most with Mom?” or “How many sleeps in a row are you comfy with at Dad’s place?”
I also review the child’s report cards and assess any special needs they may have. To make informed recommendations about a child’s future, it’s important to gather information from as many relevant sources as possible: the parents or caregivers, educators, doctors, mental health professionals and others. The information gleaned during these discussions helps in two ways: It informs the conversations I have with the child and it puts their views and preferences in context.
Understanding the child’s preferences
I’m currently representing a 14-year-old boy who’s experiencing such a high degree of pandemic-related anxiety that he doesn’t want to attend school in person. One parent supports his choice; the other is opposed.
My goal, in this case, is to clearly understand the boy’s views and preferences to see how we could craft a plan that keeps his anxiety at bay while making sure he’s getting a quality education and maintaining a social life.
These cases are tough but very rewarding. Any time you can encourage a frightened and anxious child to speak their truth, it’s time well spent.
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