Voice of the Child in Court Proceedings

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Additional Resources

There is much written on this topic, too much to incorporate within the limited scope of this paper. For more information on this topic, I recommend the following:

• McLeod, Child Custody Law and Practice, chapter 13 – Child Representation: Proper Role for Counsel Representing a child who is capable of instruction counsel.
  
• McLeod, Child Custody Law and Practice, Supplement 5 – Determining Best Interests and Supplement 5(3) – Views and Preferences of the Child.
  
• A. (M.) v. L. (D.) 2003 CarswellOnt 4057 - Court relied heavily on the child’s wishes.
  
• Kalaserk v. Nelson 2005 NWTSC 4 - Quotes Davies article – contains a large section dealing with the wishes of the child at p. 15-23.
  
• Schirm , M.E. Sylvie, "Representation of Children- Summary – Australia ", Paper presented at National Judicial Institute, Family Law Seminar, Halifax , Nova Scotia , February, 2004.
  
• Mathieson 2005 CarswellSKQB 441 - Court comments negatively on child being taken by the father, at the age of eleven, to a lawyer’s office to discuss issues with a lawyer. Court states such a meeting must have been "uncomfortable and difficult" (see p. 69).
  
• Maillet v. Gould 2005 NSQB 13 - Refers to "voice of the child" in the context of 7(d) – then proceeds without it.
  
• M. (L.K.) v. F. (J.) 2004 ABQB 824 - Discusses the "age" factor.
  
• Re: A. (R.) 2002 YKTC 28 - Describes the denial of an independent voice for a child in proceedings to determine their best interests as a violation of the fundamental principles of justice.
  
• B. (R.K.) v. B. (N.S.) 2004 BCSC 619 - Children sixteen and thirteen resisted contact with the father – wishes respected.
  
• McLeod, Custody Law and Practice, Chapter 13 – Child Representation and Independent legal representation for children in contested custody and access matters has been institutionalized in most jurisdictions in Canada.
  
• Gary Direnfeld has an interesting series of short articles and film clips dealing with children’s issues in custody/access disputes.
  
• American Bar Association of Family Law Standards of Practice for Lawyers Representing Children in Custody Cases, August 2003.
  
• Orr v. Bzowey 2005 SKQB 12 - eleven year old boy, application to vary custody.
  

For an interesting American view of stepfamilies and how difficult it can be for first family children in second families, I recommend "Stepfamily Tribulations under United States Laws and Social Policies", Marjorie Engel, in The International Survey of Family Law, 2005 Edition (Family Law: Jordan Publishing Limited, Bristol, 2005).

The Children’s Voice Submission to the Special House of Commons/Senate Joint Committee on Child Custody and Access (Parenting Responsibilities), March 1998.

Fairchild (Ashe) v. Ashe [1991] N.S.J. No. 294 – This decision was an appeal from a Family Court judgement where the judge in question agreed that a child would be allowed to testify but made it clear that she would not be putting any weight on it whatsoever. This case was overturned on appeal as the Court felt that it left the impression that the testimony of the daughter would not be believed or considered, and that this was an error of law. Thus, the Appeal Justice heard the testimony - but concluded that the child’s testimony was of no assistance. It also contains some discussion on child witnesses in general.

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