“She’s twelve. Surely she can just tell the judge who she wants to live with.” Parents say this in law offices all the time, usually from a place of love and exhaustion. Others say the opposite: “He’s been told what to say. A judge can’t possibly listen to him.” Neither is quite how Ontario law works.
The law requires courts to consider a child’s views and preferences, giving them due weight according to the child’s age and maturity. It does not make the child the decision-maker, and it does not put the child on a witness stand as a general practice. In between these two extremes sit several ways of hearing from a child, and the best known of them involves a government office many parents have never heard of until a judge mentions it.
This article gives general information about how that works in family cases, and it is not legal advice. Your case’s circumstances will affect whether any of these options is available or suitable.
Why a child’s views are part of the case
Two statutes point the same way. Under the Divorce Act and Ontario’s Children’s Law Reform Act, the child’s views and preferences are one of the listed best-interests factors, considered with due weight given to age and maturity, unless they cannot be ascertained. Section 64 of the Children’s Law Reform Act adds that a court must, where possible, take those views into account to the extent the child is able to express them.
There is no magic age. People often say that at twelve, or fourteen, a child “gets to decide.” Ontario has no such rule in parenting cases. Older, mature children’s clear and consistent wishes tend to carry a lot of weight, partly because it is hard, in practical terms, to enforce a schedule on a teenager who refuses to go. But a judge can still take into account why a child is saying what they are saying. Wanting to live where there are no rules and a better gaming setup is different from having a settled, reasoned preference.
Views are also just one factor. The court gives primary consideration to the child’s physical, emotional and psychological safety, security and well-being, and there may be solid reasons why a child’s preference does not fit with that.
What the Office of the Children’s Lawyer is
The Office of the Children’s Lawyer, often called the OCL, is an independent law office within Ontario’s Ministry of the Attorney General. In family cases about parenting time, decision-making responsibility and contact, it can represent the interests of a child under 18. Its authority comes mainly from sections 89 and 112 of the Courts of Justice Act.
Its services are available in Peel like elsewhere in the province, but the OCL is not a universal service. It does not advise parents and it does not enforce support. Nor does it decide what is in a child’s best interests; that remains for the judge. Generally, it does not become involved until a case is before the court, and a judge’s request is the normal way in.
Its services include:
- Legal representation. A lawyer is assigned to represent the child. The lawyer generally takes a position consistent with the child’s views and preferences.
- Legal representation with clinical assistance. A lawyer works with a clinician, usually a social worker.
- Children’s Lawyer Reports. A clinician investigates and gives a report with recommendations.
- Voice of the Child reports. A clinician meets with the child and reports what the child has said.
How a Brampton case gets to the OCL
Usually the topic comes up at a case conference or on a motion, either because a parent asks or because a judge raises it. A judge can then make an order requesting the OCL’s involvement. Note the word “requesting”: the OCL has discretion. Section 112 says the Children’s Lawyer “may” investigate, and may act at the request of a court or any person. Under OCL’s process, the parties then complete an intake form, typically very quickly after the order is made, and send it to the OCL along with the order. The OCL’s own material asks for the form within one business day of the order. Do not let this slip.
The OCL reviews the forms and tells the parties and the court, in writing, whether it will accept the case and which service it will provide. Resources are limited, and acceptance is not automatic. Cases where a child is very young, or where the issues are narrow, may not be accepted. If the OCL says no, the court and parties will need to consider other options.
When filling out the form, stick to facts: what the parenting schedule is, what the issues are, what services or professionals are already involved, and any concerns about safety. Remember that other people may read what you write.
The lawyer: a voice, not a referee
An OCL lawyer represents the child, not either parent. That can be confusing for parents who assume the lawyer is there to judge which of them is better. They may meet with the child several times, usually away from either parent’s influence. They may speak to teachers, doctors and others. They then bring the child’s position to the court, can take part in conferences and in negotiations, and may question witnesses at trial if the case gets there.
Since the lawyer’s position generally follows what the child wants, parents should be prepared for a position they disagree with. You can provide information to the lawyer, and you should be honest and cooperative. What you cannot do is instruct them. Trying to pressure them, or badgering your child about what they said, tends to go badly.
Younger children may not be able to give instructions in the usual sense. In those cases, the lawyer’s work may focus on the information available about the child’s situation.
Children’s Lawyer Reports
Where a clinician investigates under section 112, they generally meet with each parent, observe the child with each of them, and talk to the child and to others who know the family, such as teachers. They may review records. Afterward, there is usually a meeting with the parents to explain what the clinician found, sometimes called a disclosure meeting, and then a written report that makes recommendations to the parties and court.
Rule 21 of the Family Law Rules sets the framework for these reports:
- The OCL serves notice on the parties and files it.
- From that point, parties must serve the OCL with documents about parenting, support or education issues relating to the child, as if it were a party.
- The OCL has the same rights to document disclosure and questioning as a party.
- The report is due within 90 days after notice is served.
- Within 30 days of being served with the report, a party may serve and file a statement disputing anything in it.
That last deadline is easy to miss, and it can really matter. If you think a report contains factual errors or draws unfair conclusions, you should get legal advice immediately. Do not assume you can simply point this out at trial. The person who prepares the report also swears an affidavit verifying the facts that are within their knowledge and the sources of their other information.
Reports can be very influential, even at settlement stages, since the parents often adjust their positions after hearing what a neutral professional saw. Nevertheless, a judge is not bound by a report and may accept all, part or none of it, after considering the rest of the evidence.
Voice of the Child reports
A Voice of the Child report is narrower, and shorter. The OCL describes it as a report in which a clinician summarizes the child’s statements about an issue in the parenting dispute. It is typically done for children over the age of seven. It usually involves meeting the child, without formal interviews of the parents, observation visits or gathering information from other sources, and it does not make recommendations. The OCL states that a report is generally delivered within 30 days after a clinician is assigned.
This tool can suit a case where the question is relatively focused, such as a teenager’s thoughts on a schedule, or which school a child wants to attend, and where the parents and the court would benefit from a neutral record of what the child says without putting them through a longer process. It has limits. It cannot tell a judge whether the child has been influenced, whether what the child says is accurate, or what the best outcome would be. If the concern involves abuse or serious conflict or manipulation, a fuller investigation may be more suitable.
In some cases, a report like this might also be prepared by a private clinician retained by the parents, but that raises its own questions about cost, neutrality and admissibility.
Other ways a child’s views reach a judge
The OCL is not the only route.
Interview by the judge. Under section 64 of the Children’s Law Reform Act, the court may interview a child to find out their views. The interview must be recorded, and the child is entitled to have counsel present. Judges vary in how comfortable they are doing this, and many consider it best suited to older children or to specific situations.
Assessments. Section 30 of the Children’s Law Reform Act allows the court to appoint a professional to assess and report on the child’s needs and the parties’ ability to meet them. Parents generally pay for this, though the court can apportion the cost. It is usually broader and more expensive than an OCL report.
Testimony from other people. Teachers or counsellors may give evidence of what they observed. Statements a child makes to a parent are hearsay, and courts may give them limited weight, particularly when they are being used to prove contested facts. They are also easily coloured by the parent repeating them.
Children’s own testimony. Children very rarely testify in family court, and for good reason. Courts usually avoid this wherever possible.
Mediators and others. Some mediators use a child-inclusive approach, where a trained professional speaks to the child and shares themes with the parents. This depends on both parents’ agreement.
What not to do with your child
The most common way to hurt your own case, and your child, is to turn them into a messenger or witness. Some rules of thumb:
- Do not ask your child to choose or tell them what you would like them to say.
- Do not show them affidavits, court papers or messages from the other parent.
- Do not ask them to write a letter to the judge.
- Do not question them after they have met with the clinician or lawyer.
- Do not record them. Judges are often sharply critical of this.
- If they ask what is going on, give a short, calm, age-appropriate explanation. “A person’s job is to listen to you, and you can tell them whatever you think. You will not be in trouble.”
Clinicians are alert to coaching, and they are often skilled at spotting phrases that sound as though they came from an adult. A child who says the same thing in the same words each time, or who uses legal terms, may raise concerns about whether the views are truly their own. Where a court finds a parent is undermining a child’s relationship with the other parent, this can affect its overall assessment.
Practical preparation for parents
If the OCL gets involved, set yourself up to be a useful source of information:
- Return intake forms immediately and answer calls promptly.
- Prepare a short, factual list of who knows your child and how to reach them, including teachers, the family doctor and coaches.
- Share relevant documents such as report cards or medical letters.
- Tell the truth about your own weaknesses and strengths. Clinicians notice when someone’s account is suspiciously perfect.
- Speak about your child, not your former spouse. Show what you know about their friends, fears and routines.
- If you have safety concerns, say so clearly and ask how they will be handled.
These processes are not meant to be a test of your love for your child, though it can feel like that. If an order has been made, or you are wondering whether to ask for one, it is worth getting advice on whether this suits your family. You can learn about how parenting cases are decided on our custody and parenting page, or contact the office if you would like to discuss it.