The singular consideration in custody and access disputes is the best interests of the child. However, what this often boils down to is a he-said, she-said battle between two parents who both believe themselves to have their child’s best interests in mind. Trials involving custody and access disputes are often costly and time-consuming because the parents each present their own view of what the child’s best interests are, and each parent’s evidence, plus the evidence of multiple collateral witnesses, can take up numerous days of court time.
Parsing through the lengthy and often acrimonious allegations to determine what is best for the child is often the most trying part of a judge’s job. That is why it is can be most helpful to the court to have a neutral third party to provide information about the child’s well-being, and sometimes, hear what the child himself/herself wants. This is done in either the form of an expert report from a psychologist, called a “section 211 report”, or a “hear the child report” prepared by a qualified person. A third option is having the judge interview the child directly, to hear what the child has to say about his or her needs and wants. Which of these three options is the most suitable in the circumstances can only be determined on a case-by-case basis.
British Columbia’s Family Law Act provides that when determining what is in the best interests of a child, the child’s views must be considered, unless it would be inappropriate to consider them. In other words, the child’s views presumptively matter, unless it would be inappropriate to consider the child’s views. Circumstances in which it may be inappropriate to consider the child’s views include when the child is too young to be able to provide a cogent discussion of their wants and needs.
There is no hard cap for when a child is too young to provide his or her views, but in general, the courts have placed greater weight on the views of children who are older. For example, in the case of McGowan v. McGowan, 2001 BCSC 1070, the wishes of a 13-year-old child were determinative while the wishes of the 11-year-old sibling were merely instructive. The degree to which the views of the child will be considered is dependent on the age and maturity of the child. Generally speaking, it is rare that the court would order an inquiry into the views of children younger than twelve. However, there are cases of courts considering the views of younger children, including the case of A.J.A. v. F.M.A., 2016 BCSC 1613, where the judge interviewed an eight-year old child about her views regarding a proposed relocation.
When a parent wants his or her child’s views to be heard, the parent can apply to court to ask the judge to consider the child’s views, by either ordering a section 211 report with a views of the child assessment, a hear the child report, or interviewing the child directly. The court can order any three of these options even if the other parent does not agree to it.
In deciding which of the three options to proceed with, parents should keep in mind the following:
- Section 211 reports are more comprehensive than hear the child reports. Section 211 reports are evaluative reports, meaning the assessor will evaluate what the child has said in context, and analyze or opine on whether what the child has said really reflects the child’s actual preferences. For example, the section 211 report may find that the child’s statements were impacted or influenced by one or both of the parents, and thus opine that the child’s views should be afforded less weight. On the other hand, hear the child reports are non-evaluative reports, in the sense that they merely report what the child has said, without any further analysis.
- Section 211 reports can only be prepared by a mental health professional, typically a psychologist or family justice counsellor, whereas hear the child reports can be prepared by lawyers with special training, in addition to mental health professionals. A roster of persons qualified to prepare hear the child reports can be found at the BC Hear the Child Society.
- Because of the more comprehensive nature of section 211 reports, they are often more costly than hear the child reports. A section 211 report could cost upwards of $10,000, whereas a hear the child report may be in the range of $1,000 to $3,000. A section 211 report also typically includes an evaluation of both parents, in terms of their ability and willingness to meet the needs of the child, and includes recommendations in the best interests of the child, whereas a hear the child report does not, hence the significant cost difference.However, in certain circumstances, the courts may order that a section 211 report or a hear the child report be prepared by a family justice counsellor. The courts would typically order this where the cost of obtaining the report is prohibitive to the parties. Family justice counsellors will prepare the reports for free if there is a court order. This is a service offered by the British Columbia Ministry of Justice. However, family justice counsellors are in high demand, and there are often delays upwards of six months to a year before a family justice counsellor is available to prepare a report.
- Section 211 reports typically take longer to prepare and obtain than hear the child reports, again because of the more comprehensive nature of section 211 reports. A section 211 report prepared by a private expert may take several months, whereas the turnaround time for a hear the child report may be quicker. However, it often depends on the availability of the expert, and how soon they can meet with the parents and the child.
- Courts are more likely to order a section 211 report, rather than interviewing the child. This is because the threshold requirement for ordering a section 211 is quite low. The court will typically order a section 211 report if there is conflicting evidence from each parent, and the court wants an objective view of the parenting capabilities of each parent and recommendations regarding the best interests of the child. While a section 211 report is not ordered in every family law case involving children, generally, only the cost of obtaining the report will raise a legitimate countervailing concernBefore a judge will interview a child directly, he or she will first consider what other options are available and the appropriateness of those options as an alternative. Many judges opine that a neutral third party option is the best option, and all reasonable options should be explored before acceding to a request to have the judge interview a child. Judges recognize that intrusion may be damaging to the child or the family dynamic. There is a desire to avoid involving children in their parents’ disputes as much as possible, and hence judges are reluctant to ask a child questions that may pressure the child into choosing a side.On the other hand, there are also judges of the view that it is difficult to have a complete picture without meeting the child, and that the process allows the child to tell the judge directly what the child’s views are. As a result, the child will know that his or her views have been heard by the person actually making the decision. Since judges observe and assess witnesses on a daily basis, they also have the experience to assess the credibility and reliability of information received from a child in a private interview.
In general, because the legal test for any parenting issue is the best interests of the child, the child’s views will typically have some impact on the final decision. The right of the child to be heard in a proceeding where that child’s interests are being determined is codified in the United Nations Convention on the Rights of the Child, which has been ratified by Canada. Giving the child a “voice” in the proceedings can also give the child a sense of agency, which is related to positive mental health. There are indications in empirical studies that not listening to what children have to say during divorce processes has had unintended negative effects. As a result of their exclusion, children complain about feeling isolated and lonely during the divorce process and many older children express anger and frustration about being left out.
Child custody disputes are often very sensitive and can be difficult to navigate. If you are facing a child custody, guardianship, access or parenting time issue, please contact one of our Vancouver or Langley family law lawyers.
Associate lawyer in Family Law
Lindsay Kenney LLP – Vancouver Law Office
For more information on family law issues, refer to the following resources:
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- Child Protection Issues and MCFD
- Custody and Guardianship
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