Decisions regarding custody and access have an immense impact on the best interests of the child. In order to ensure that the best interests of the child are met, there are three commonly employed methods of incorporating a child’s views and preferences into the judicial process. Representation of the child by a lawyer is perhaps the most prevalent method, followed by expert reports, and meetings between a judge and child. Judicial interviewing has historically been a controversial method for determining a child’s views, and the effectiveness of this approach has been criticized. There are two common views – one proposing that children must be protected from familial conflict and choosing sides, the other suggesting that the views of children should be encouraged as often as possible.
In Ontario, the Childrens Law Reform Act (CLRA) governs judicial interviewing of children and states that the court shall take the views and preferences of the child into consideration wherever possible. Section 64(2) of the CLRA further provides that “The Court may interview the child to determine the views and preferences of the child”. Unfortunately, this provides very little guidance in regards to how and when judicial interviewing should be conducted. Across Canada, most jurisdictions have left the option of a judicial meeting to the judge’s discretion.
While the current legislation permits any judge the opportunity to interview a child, judges in Ontario rarely meet with children. The most commonly cited reason for this is that meeting and interviewing children requires a unique skill set, which includes both specific training as well as an understanding of the way in which children speak. Additionally, the court has consistently upheld that judges must not collect evidence, and accordingly, judges must not base their decision solely based on the views expressed by a child. Judges are ultimately bound by legislation, and must be careful to consider what is in the best interests of the child, not simply what the child expresses. These competing interests were discussed in the 1965 case Hodge v Hodge (1965 7 FLR 94):
One of the reasons given in that case for not seeing the child was that the court has to consider the welfare rather than the mere desires of the child. That is true, but with the greatest respect to what their Lordships said, one of the factors that has to be considered, although in many cases it may not be a dominant or even an important factor, is what the child wants. That is something that has to be considered in deciding what is best for the child. Secondly, the Court of Appeal referred to the fact that a child which has been in the custody of one present may very naturally express wishes that strongly favour that parent. That may be so, but that, I should have thought, is something that any judge might be expected to discount and take into consideration, and of course if the contrary were the case, that is, if the child expressed a view that was not expected, that might be something that the court might regard as significant. I feel that perhaps I will not gain a great deal from seeing the child in this case, but nevertheless I think it is a proper exercise of my discretion to see her.
Several judges have utilized judicial interviews in more recent years (refer to Coda v Coda 1997 CarswellOnt 3953; PLM v LJ, 2008 CanLII 35923; McAlister v Jenkins, 2008 CarswellOnt 4266). However, Ontario judges frequently defer to utilizing the appointment of the Office of the Children’s Lawyer or the use of an expert report to bring a child’s views into the court process, perhaps due to the view that this creates a more balanced picture of what is in the child’s best interests.