Judicial Interviews of Children in Custody and Access Cases

• Author: Dan L. Goldberg
• Pages: 197-223

197

 

Judicial Interviews of Children in Custody and

Access Cases

 . 

In , Canada ratied t he United Nations Convention on the Rights of the

Child. is agreement enshri ned into internationa l law the inalienable rights

of chi ldren. Purs uant to A rticle  of the Convention, a ch ild who c an form

views in a ma er aecting hi m or her can, either directly or t hrough a repre-

sentative or an appropriate body, have those v iews placed before any judicial

or adm inistrative proceeding. i s provision t heoretically a llows a ch ild to

communicate h is or her views direct ly with a judge or other judicia l ocers.

In Canada, children who are involved i n custod y/access proceed ings and

whose view s and preferences ar e ascertai nable are also, at le ast symbolic ally,

entitled u nder international law to have their own counsel to serve as their

representative.

Under Art icle , the opportunity for a child to be heard in a ny judicial

and admin istrative hearing is to be provided in a man ner consistent with the

procedural ru les of Convention signatory countries. In rega rd to the methods

of ascer taining ch ildren’s views, t he statutory prov isions and reg ulations of

e views e xpressed i n this ar ticle are t hose of the author a nd do not necessa rily repre sent the

views of t he Oce of the Ch ildren’s Law yer. e author gr ateful ly acknowle dges the resea rch

assist ance of Phil ippa Geddie,  – Stude nt-at-Law, Oce of the C hildren’s Law yer. e

author gra tefull y acknowled ges, with fond ness and adm iration, t he enormous cont ribution to

fami ly law in Cana da and inter national ly by Queen’s Univer sity Profes sor of Law Nichola s Bala.

 Can. T.S.   No .

 .  198

the Can adian province s and territor ies vary, bot h as to whet her judicial of-

cers have the discret ion to interv iew children and with respect to t he sys-

tematic provision of ch ildren’s counsel.

In the past several year s, the issue of judges conducting forensic i nter-

views wit h children for the purpose of el iciting their custod ial and visitation

preferences has resurf aced and generated a debate in many Western juris dic-

tions re garding the appropriateness of this practice. i s chapter d iscusses

the issue and describes the many sign icant concerns about judicial prefer-

ence intervie ws. At the same time, it describes some ci rcumstances in wh ich

it may be appropriate for a judge to have a conversation with a c hild without

discussi ng that child’s preferences regard ing custody and visit ation.

ere are several way s to place children’s views and preferences in evi-

dence before the cou rt without di rectly involvi ng them as w itnesses or sub-

jecting them to judicial interv iew. An assessor’s report, a therapist’s evidence,

a parent or another’s statement, and, i n Ontario, evidence of a cl inical inves-

tigator/social worker assist ing the child ’s counsel can al l be used as vehicle s

for ensurin g that a child’s wishes are pl aced before the court.

A. EXCEPTION TO TH E RULE AGAI NST HEAR SAY EVIDE NCE

e traditiona l rule about hearsay statements is that they a re not admissible

in evidence. However, an exception in both crimin al and family law proceed-

ings is that ch ildren’s statements to third part ies are admissible.

e dec ision in R. v. Khan established the hea rsay except ion for chil-

dren’s statements to th ird par ties on the basi s of t he dual test of necessity

and relia bility. e Supreme Cou rt of Canada applied its deci sion in Ares v.

Venner and held that “necessity” should be interpreted a s “reasonably neces-

sary.” If a ch ild’s viva voce evidence would be i nadmissible, then hea rsay evi-

dence is necessa ry. A psychological assessment that the ch ild’s testimony in

court mig ht be traumatic or harm the ch ild can also establ ish necessity.

In R . v. Khan, the Supreme Court of Canada held that “reliabil ity” may

be determined by ev idencing the “timing , demeanour, the personality of the

child, the intel ligence and understanding of the child, and the absence of any

reason to expect fabricat ion in the statement . . . . e maers relevant to reli-

 []  SCR .

 [] SCR .

 Above note  at p ara. .