Welcome to the Paolucci Law Child Evidence Blog Series! Over the next few weeks, we will be releasing a series of blogs focused on some different ways that evidence from children can be accepted in court. This is the first blog in the series.
There are many situations in which a child’s opinion or testimony is relevant to the outcome of the case. Evidence from children can provide insight into whether parents are acting in the children’s best interests, and can also provide children, especially older children, with the opportunity to have their own preferences heard and considered.
evaluative voice of the child reports prepared by mental health professionals;
the testimony of mental health professionals or third parties (e.g., teachers, coaches) who have spoken to the child;
custody and parenting reports prepared by mental health professionals or court-attached counsellors;
the appointment of children’s counsel;
the affidavit or oral evidence of children;
non-evaluative voice of the child reports prepared by mental health professionals, lawyers and other non-mental health professionals with training in interviewing children;
judicial interviews of children in court or chambers;
the parties’ evidence about what the child has told them; and
the child’s statement to the court by letter, e-mail, or video.
Depending on the type of evidence and how it is heard, evidence given by a child can be accepted as a testimony regarding the facts of the case, as evidence of the child’s state of mind during the relevant time, or as evidence of the child’s views and preferences for consideration in determining their best interests. This blog series focuses on 3 main ways of getting a child’s evidence considered by a court: judicial interviews, hearsay evidence on child statements, and reports prepared by professionals on behalf of the children.
WHAT IS A JUDICIAL INTERVIEW?
A judicial interview is an interview between a judge assigned to a case and a child who will be impacted by the outcome of the case, usually the child of the parties. There are three main purposes of a judicial interview: obtaining the wishes of the children; making sure children have a say in decisions affecting their lives; and providing the judge with information about the child.
It is important to note that the purpose of a judicial interview is not to obtain evidence from the child, and the child is not giving testimony during this interview. This means that although the child might talk about their relationship with each of their parents during the judicial interview, the judge will not take what the child says about their parents as factual evidence. However, if the child makes a disclosure of abuse or neglect during the interview, the Court must report this to the relevant Children’s Aid Society for further investigation.
Judicial interviews are usually recorded, with very few exceptions. If the child has a lawyer, they are entitled to have their lawyer present and receive their lawyer’s advice during the interview. Typically, the meeting will take place in the judge’s chambers. The judge will ask the child questions directly about their views and preferences related to the dispute: for example, they may be asked about their preferred living arrangements between their parents.
The legal basis for judicial interviews comes from the Children’s Law Reform Act, which states at section 64(1) that a child is entitled to be heard, and a court should take into consideration the views and preferences of the child to the extent that the child is able to express them. Section 64(2) provides that the court may interview the child to determine the views and preferences of the child.
There are several pros and cons of conducting a judicial interview. The Advocates’ Society’s “Guidelines for Judicial Interviews and Meetings with Children in Custody & Access Cases in Ontario” provides an outline of some of the pros and cons of having a child meet with a judge:
Reasons for speaking with the judge
Reasons not to speak with the judge
To allow for children’s views to be heard by the individual who is responsible for decision making
Children’s feeling that it is inappropriate or unnecessary (especially in uncontested cases)
To facilitate better decision making
Children’s preference to deal with family matters within the family outside the court process
For children to benefit from sharing their views in private and in confidence
Children’s feelings that being interviewed by a judge would be too scary or too formal
To make sure judges do not misinterpret children’s wishes
Being interviewed by a judge should be a last resort
The importance of providing input and being acknowledged
To avoid having to choose between parents who are in conflict
HOW WILL THE COURT DECIDE WHETHER TO CONDUCT A JUDICIAL INTERVIEW?
In order for a judicial interview to take place, the court will have to determine whether a judicial interview is the most appropriate way of getting information from the child. In some cases, even if both parties consent to their child being interviewed by a judge, the judge may still choose not to proceed with the interview if they determine that it is not appropriate.
The court will hold a special hearing to decide whether or not to conduct a judicial interview. If the court decides to conduct a judicial interview, the court will also determine the manner in which it will be conducted, how the parties can learn about the information obtained in the interview, and how to respond to it if more evidence is required.
Child’s ability to express their views and preferences
One of the most important considerations in determining whether to conduct a judicial interview is determining whether the child is able to express their views and preferences. Factors such as the child’s age, intelligence, and maturity will be relevant here. In the case of TJL v EB (2019 ONSC 6096), the court decided not to conduct a judicial interview with a 6-year-old child because there was no evidence presented that the child was able to express her views.
There is no definite minimum age for judicial interviews, since age is not always indicative of a child’s developmental stage. The general age suggested by experts is around 8 years old, although children slightly younger may be able to be interviewed depending on their level of maturity. If parties believe that their child is mature enough to be able to express their views to a judge, they should present evidence to the court to support that.
Child’s willingness to be interviewed
The court will also consider the child’s willingness to be interviewed, and other factors which may affect a child’s best interest in relation to a judicial interview. For example, a child may be able to express their views, but may be afraid of speaking to a judge, whether because they are intimidated by the judge themselves, or because they are afraid of getting a parent “in trouble”. The judge will have to explain to the child that the parties will have access to the recording or transcript of the interview; a child may be unwilling to proceed with an interview if they do not want one or both of their parents to know what they want to tell the judge. Since parties must be able to respond to any evidence on the record, a judge is not an appropriate person to tell information that a child wishes to keep secret from their parents.
A child may also express that they are willing to be interviewed, but then act in such a way that may suggest they have been pressured into agreeing. In cases where there has been evidence of coaching by one or both parents, a judge may choose not to conduct an interview out of concern that the child has been pressured to express views which are not truly their own. The judge may also choose to interview the child more than once, and have a different parent bring them to the interview each time, in order to be more certain of the child’s actual views.
In other cases, however, there may be evidence that a child has specifically requested to speak to a judge. This could be especially relevant in cases involving older children, where the children have some awareness of the case and understand the parties’ involvement in court.
Since the best interest of the child is the primary consideration in family law, a court will not proceed with a judicial interview if it determines that doing so is contrary to the child’s best interest.
Necessity of the interview
In some cases, the court may determine that although a child is able to express their views and preferences and a judicial interview would otherwise not be inappropriate, it is nonetheless unnecessary. For example, not all parenting issues require knowledge of the views and preferences of the child. In other cases, the child’s views and preferences may have already been determined through the child’s involvement with a professional who can bring their views to court, such as through the child’s lawyer or the testimony of a mental health or social worker.
Timing of the interview
Another thing to be considered is the timing of the judicial interview. For example, the court could decide to hold the judicial interview close to the beginning of the trial so that the parties’ evidence can address the information received at the interview; alternatively, the court could decide to hold the interview at or near the end of hearing other evidence, so the court will be in a better position to determine what information it would like to hear from the child. In making this decision, the court will consider benefits and concerns relating to a judicial interview; the relevance and reliability of the information that may be obtained; and the necessity of obtaining the information in this way.
In addition to the above, the court will take into consideration other factors that suggest it may or may not be appropriate to conduct an interview. Factors that may suggest a judicial interview is appropriate include, but are not limited to:
The dispute involves a single issue, other than the determination of custody or access, such as the selection of a particular school that the child may wish to attend;
The child’s views or preferences will likely play a significant role in the court’s decision;
There is no other independent evidence of the child’s views and preferences;
Both parties consent to the child being interviewed by a judge; and/or
There is an existing assessment or Children’s Lawyer Report, but it is old or outdated due to material change in circumstances.
By contrast, factors that may suggest that a judicial interview is NOT appropriate include, but are not limited to:
The child has legal representation;
There is existing independent and reliable evidence, such as a Children’s Lawyer Report or the report of a mental health professional, regarding the child’s views and preferences; and/or
One or both parties do not consent to a judicial interview of the child taking place.
For more information on judicial interviews, see the “Guidelines for Judicial Interviews and Meetings with Children in Custody & Access Cases in Ontario” published by the Association of Family and Conciliation Courts, Ontario Chapter, and The Advocates’ Society.