BEST INTERESTS OF THE CHILD

The priority in family law is children. I have seen a trend towards co-parenting, provided both parents have a track record of putting their children’s interests ahead of their own. Children develop into better adults when both parents are active in their lives with an absence of conflict. Scholarly literature bears this out. Courts and parenting coordinators strive to reduce conflict by minimizing the number of weekly transfers, ordering that communication be through Our Family Wizard when things are moving in a toxic direction, and by encouraging parents to take co-parenting courses.

Child-related issues fall under decision-making responsibility and parenting time. Changes in the legislation were designed to highlight that children are not a trophy. Parenting time and decision-making responsibility are not defined by winning and losing and in fact the term “custody” has been removed from the legislation.

At the same time the legislation discarded the term “custody” it also expanded the impact of domestic violence on the best interests of the child. Domestic violence includes “coercive and controlling behaviour in relation to a family member” not only physical but “emotional and psychological harm or risk of harm to the child.” Importantly, the factors bearing on domestic violence spelled out in the legislation are not exhaustive since the last factor is “any other relevant factor.” That catch-all reflects how seriously the Court takes domestic violence when it comes to Orders concerning children.

Steps taken to mitigate domestic violence are also relevant. A parent cannot rectify a problem unless that parent first recognizes it exists.

The Association of Family and Conciliation Courts (“AFCC”) has developed recommendations for a host of parenting issues, and these recommendations are gaining traction with judges. I have seen AFCC recommendations described in close to similar terms to the SSAG’s – persuasive but not necessarily binding.

Recently, I was counsel in a trial where the other parent claimed that even though my client was compliant with his medication and otherwise adhering to his doctor’s advice, an underlying bi-polar condition warranted permanent supervised parenting time. The evidence, however, showed that my client’s relationship with the parties’ two young sons was exemplary. The Court referenced the recommendations of the AFCC when a parent has a mental health issue in the Reasons for Decision.

The Office of the Children’s Lawyer (“OCL”) is an important participant if the parties go to Court. Since the OCL is free, it is a very busy resource. Consequently, the OCL do not accept anywhere close to every case referred to it by a Judge. If the OCL accepts the case, typically a social worker will meet with the child and the parties and make recommendations to the Court regarding parenting time, decision-making responsibility and the child’s views and preferences (known as a voice of the child report or “VOC” report). While the recommendations are not binding, they are persuasive, though it must be noted that a child’s views and preferences are only one factor that the court must consider in its best-interests analysis.

A VOC report stands in the place of putting the children in the witness box and as such it is a way to receive evidence regarding the views and preferences of the children. It is unusual to have a VOC report for a child under the age of 9 because it is difficult to obtain independent and consistent views. The social worker (or other mental health professional if the VOC report is carried out privately) does not meet with the parents or gather information through other sources, including documents. It is not the policy of the OCL for a clinician to have prepared questions when interviewing a child and hence the child’s stated preferences can be confusing if not ambiguous.

In my experience, the OCL does not have any hard guidelines regarding safeguards to identify when a child has been effectively brainwashed and is merely parroting the wishes of the primary parent. That is something that needs to be extracted by your lawyer through cross-examination.

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As an alternative to the OCL, the parties may desire a private assessment to report on the needs of the child and the ability and willingness of each of the parties to meet the needs of the child. Unsurprisingly, a private assessment is more thorough than the OCL investigation. A private assessment is also costly. It is often carried out by a child psychologist rather than a social worker. The report is similarly filed with the Court and the assessor may be called as a witness.

The worst-case scenario is when a child has been alienated by one parent against the other. In those circumstances, it is important to intervene early. Reunification counselling with a court-ordered specialist may not even get off the ground because the child will refuse to attend. The older a child is, the less inclined a court will be to make an order against that child’s stated interests, even when it is apparent that the child’s views and preferences are the result of being brainwashed. Parental alienation cases are the most difficult cases I encounter. They represent a form of child abuse that in my opinion could have been more specifically addressed when the changes were made in 2021 to the Divorce Act and Children’s Law Reform Act regarding the best interests of the child.