THE VOICE OF THE CHILD IN DIVORCE, CUSTODY AND ACCESS PROCEEDINGS
Members of the judiciary have been reluctant to allow children to testify as witnesses in custody and access disputes. There is concern that children will be irrevocably harmed by such an experience. It is argued that the pressure to choose between parents, fear of hurting a loved adult on whom one is dependent, and the potential for vengeful retribution from a parent can be damaging to children. Concerns have also been expressed regarding the adversarial process that characterizes legal proceedings in Canada. The imposing atmosphere of the courtroom, repetition of details of an event to strangers in public, cross-examination, and physical separation from a parent or relative are some of the features of providing evidence that are feared will adversely affect children.
In the past few years, the importance of including the child in divorce, custody and access proceedings has been recognized. There is also growing realization that many of the concerns articulated above by members of the judiciary and other professionals can be addressed by introducing amendments to provincial and federal legislation and through other non-statutory mechanisms.
Several reasons have been put forth for allowing a child to participate in custody and access proceedings. First, it ensures that the decision-making process is child-centered. It gives children the opportunity to convey their physical, emotional and social needs to a judge which ensures that the decision-making process is not focused exclusively on their parents' views and preferences. Children will know that their views are being stated as clearly as they can formulate them, in language they choose, without the danger of being mis-stated by a well-meaning adult. Second, as Madame Justice McLachlin states, for a judge to ascertain the best interests of a child in a custody dispute,
"it seems logical to find out what the child thinks." The child's statement of his or her views directly is important evidence to be weighed by the court. In the article "Hearing the Voice of Children," the following statement is made by a British Columbia judge:
To determine guardianship, custody, or access without seeing or hearing from the child is to fix the future pattern of her life without which may be the most useful evidence.
The judge can observe the child and assess the child's understanding of the situation without the intervention of a third party. It is asserted that
"[at] a time when the parents' capacity to parent is diminished, when parents have difficulty separating their child's needs from their own needs, the child's views about her needs are particularly helpful."
A third reason for allowing children to directly convey their wishes and needs to the court is that excluding them may be more damaging to children than permitting young persons to participate in a process that has life-long ramifications for them. The comments of two judges merit serious consideration:
Children whose divorcing parents cannot communicate rationally will usually have seen much more damaging fights than those in a courtroom. But most judges prefer to protect the child from the presumed harm.
The stress which testimony in custody proceedings must place on a child who is both a witness and a party affected is difficult to calculate. But the damage which may be done by leaving the child out of the process may be even greater.
A further argument in support of child participation in custody and access disputes is that the parents of the child will be obliged to listen and consider the wishes and concerns of their children. In some circumstances, they may incorporate these views in their representations to the court.
Over the past 15 to 20 years, lawyers, psychologists and social workers have recommended that measures be taken by legislators and members of the judiciary to accommodate children in the legal process. It is argued that the system of justice is adult-oriented and is not designed to handle cases in which children are involved. Law reform bodies such as the Ontario Law Reform Commission have asserted that
"children must be protected in the court process in order to effectively tell their story." Extreme anxiety on the part of the child may not only have psychological repercussions, it may result in testimony that is incomplete, at times incoherent, and with little probative value.
The Supreme Court of Canada in decisions rendered in the 1990s has supported the notion that children should be accommodated in the justice system. It was stated in R. v. B.(G.)and R. v. W.(R) that children may require different treatment than adults when providing evidence in legal proceedings. Madame L'Heureux-Dubé stated in R. v. Levogiannis, a case that dealt with the constitutionality of screens for children in criminal trials, that:
The goal of the court process is truth-seeking and, to that end, the evidence of all those involved in judicial proceedings must be given in a way that is most favourable to eliciting the truth.
It is argued that the rules of evidence applicable to adults should be altered for children. The Supreme Court of Canada stated in R. v. L. (D.O.), a case in which the constitutionality of a Criminal Code provision on videotaped interviews of children was upheld, that the
"rules of evidence, as much as the law itself, are not cast in stone and will evolve with time." A similar sentiment was echoed in R. v. Levogiannis where the court stated that legislature
"is free to enact or amend legislation in order to reflect its policies and priorities, taking account societal values which it considers important at a given time." Madame Justice McLachlin in
"Children and the Legal Process: Changing the Rules of Evidence" wrote that because children are "important players" in
our legal system, the laws of evidence, civil and criminal, should be reassessed and amended, if necessary.
It is the position of this author that legislation should be introduced which accommodates children who wish to tender evidence in civil proceedings in which custody and access is being adjudicated. The purpose of these amendments should be:
- to facilitate the participation of children in family law disputes to ensure that the process is child-centered and that their voices are heard;
- to minimize the anxiety on the child; and
- to promote the tendering of reliable evidence.
In this chapter, different methods by which the views of children may be elicited will be examined. In the author's opinion, federal and provincial legislators should seek to introduce changes in divorce, custody and access proceedings to achieve two fundamental objectives: to empower the child and to protect the child. The suggestions that follow will seek to fulfill these twin goals.
Prior to the enactment of provincial and federal legislation on the competency of child witnesses, the common law governed the reception of children's evidence in civil and criminal proceedings. A presumption existed under the common law that children under the age of 14 were incompetent witnesses. Moreover, only children who could demonstrate that they understood the oath were permitted to give testimony in legal proceedings. Children who could not convince a judge that they had the requisite religious knowledge and beliefs were precluded from tendering evidence in civil and criminal trials.
The federal and provincial legislatures introduced statutory provisions on the competency of children in their respective Evidence Acts. The Canada Evidence Act, the Ontario Evidence Act  as well as statutes in other provinces contained provisions similar to the one reproduced below:
Pursuant to these provisions, children who did not understand the concept of an oath and could not give sworn testimony were permitted by statute to give unsworn evidence in legal proceedings. Children who could demonstrate that they understood the
"duty of speaking with truth" and who possessed
"sufficient intelligence to justify the reception of evidence" were allowed to testify. However, an important restriction was imposed. The child's statement required corroboration. According to the statutory provisions, no case was to be
"decided upon such evidence unless it is corroborated by some other material evidence." It is also noteworthy that, unlike adults, children who had no religious upbringing or no religious faith were prohibited from giving a solemn affirmation in lieu of swearing an oath. These provisions continue to govern the reception of children's evidence in
In the late 1970s, it was argued by some child psychiatrists, child psychologists as well as lawyers that the legal rules did not reflect the testimonial abilities of children. It was asserted that the competency rules were based on the following erroneous principles: children have poor memories, children cannot discern fact from fantasy, and children have the propensity to lie more than adults. Studies from Canada, the United States, Australia, England, Scotland and Ireland demonstrated that children had been greatly undervalued in the legal system. Empirical research conducted in the 1980s showed that the memory of a person is not directly correlated to the age of that person. Children from the age of three or four are capable of providing reliable information. It was also established that children are no more likely than adults to fabricate evidence. Psychological and medical studies also revealed that although children engage in imaginative play, they are capable of discerning fact from fantasy in the context of witnessed events.
In 1988, An Act to Amend the Criminal Code and the Evidence Act  was proclaimed into force. Section 16 of the Canada Evidence Act, which governs the reception of children's evidence in federal proceedings reads:
Section 16 of the Canada Evidence Act constitutes a liberalization of the former competency rules. It permits children to affirm in place of swearing an oath. Like adults, children need no longer convince a judge that they hold a belief in God or a Supreme Being in order to give testimony. The federal legislation overcomes obstacles posed by such cases as the Ontario Court of Appeal in R. v. Budin which prohibited children who had little or no religious background from tendering sworn evidence. Prior to the 1988 amendments, such evidence was only receivable as unsworn testimony for which corroborative evidence was statutorily required.
A further result of the federal legislation is that corroboration is no longer required for the unsworn evidence of a child. The statements of young persons are not to be considered as less reliable than the evidence of adults. The weight to be attached to the testimony of a child, as it is with other witnesses, is to be assessed by the trier of fact.
Although the 1988 legislation constitutes an improvement over the former federal competency rules for children, the provisions contain deficiencies. First, a presumption continues to exist that children under the age of fourteen are not competent. Every child under that age must be subjected to an inquiry by the judge, to ascertain if the section 16 requirements are met. By contrast, adults are not compelled to undergo such scrutiny prior to giving evidence in legal proceedings.
Second, the distinction between an oath, a solemn affirmation, and a promise to tell the truth in section 16 Canada Evidence Act requires clarification. For example, courts have adopted the Bannerman interpretation of the oath. According to Dickson J. (as he then was), the oath is a moral obligation to speak the truth without the necessity of a belief in God. One must ask how an oath is distinguishable from a solemn affirmation. Furthermore, section 16(3) of the Canada Evidence Act states that a child
"who does not understand the nature of an oath or a solemn affirmation but is able to communicate the evidence may testify on promising to tell the truth." Again, one must question the difference between promising to tell the truth and a solemn affirmation.
Third, the Supreme Court's recent interpretation of "communicates the evidence" in section 16 of the Canada Evidence Act has been perceived as a step backwards in the march towards ensuring that children's voices are heard in judicial proceedings. As Madam Justice L'Heureux-Dubé states in her dissenting opinion in R. v. Marquard, the meaning attributed to "communicate the evidence" in section 16 may
"subvert the purpose of legislative reform in this area."
The controversy emanates from the majority opinion in Marquard. The court held that
"communicate the evidence in section 16," means more than verbal ability. McLachlin J., writing for the majority, stated that it is the duty of the trial judge
"to explore in a general way whether the child is capable of perceiving events, remembering events and communicating events to the court." This must be satisfied in order for the child to give evidence in federal proceedings.
L'Heureux-Dubé J. argued that such an interpretation is
"counter to the clear words wording of s.16 of the Act, as well as the trend to do away with presumptions of unreliability and to expand the admissibility of children's evidence." One of the primary objectives of the 1988 amendments to the Canada Evidence Act was to simplify the competency requirements and to facilitate the admissibility of children's evidence. Moreover, as L'Heureux-Dubé J. states, psychological studies in recent years have demonstrated that the conventional assumptions regarding the unreliability of children's evidence lack empirical support. The federal 1984 Badgley Report proposed that no special rules of testimonial competence should exist for children; rather,
the evidence of children should be heard and weighed in the same manner as their adult counterparts. The Badgley Committee made the following recommendation:
Every child is competent to testify in court and the child's evidence is admissible. The cogency of the child's testimony would be a matter of weight to be determined by the trier of fact, and not a matter of admissibility. A child who does not have the verbal capacity to reply to simply framed questions could be precluded from testifying.
It is worth noting that several jurisdictions such as the United States, France, Germany and Scotland have liberalized their respective rules on the competency of children.
L'Heureux-Dubé J. in Marquard makes reference to rule 601 of the United States Federal Rules of Evidence
"which abolished all specific grounds of testimonial competence including those involving children. Everything now goes to weight."
In an article entitled
"High Time for One Secular Oath," an Ontario judge criticizes the federal government for not
"taking the unifying step for all witnesses" but rather creating a
"new hierarchy of choices for witnesses under fourteen":
It seems that we now have three choices: an oath, a solemn affirmation, and the third choice for a person who understands neither the nature of an oath nor a solemn affirmation but who can communicate. Such people may simply promise to tell the truth. Now that there are no longer any requirements for corroboration of unsworn evidence, is there nonetheless to be a different weight attached to the evidence of people depending on which of these alternatives is used? Will that not be very confusing? We know that a solemn affirmation is equated with an oath. What then is the quality of evidence given with a simple promise? Is it something less? If not, why not use a simple promise for everyone? If there is a difference, what is the difference exactly? What is the consequence if the simple promise is taken in the first instance without an exploration of the other alternatives?
He further states that because Canadian society has become secular and because there is a proliferation of different religions in this country, the oath should be abolished as a test of competency:
In my opinion, our courts should be entirely secular. We live in an increasingly multi-culture (multi-religion) society. Religious beliefs are diverse. Those people linked to the Judeo-Christian mainstream would find the traditional Anglican ceremony more or less familiar. Many others would not. We took this country from aboriginals who had other beliefs. We have invited and welcomed to the country very significant numbers of Muslims, Hindus, Buddhists, etc. to add to a list of agnostics, atheists, pantheists, and myriad others who have not been indoctrinated with Christian beliefs. The rights of these minorities (who, together, possibly constitute the majority) to be free from discrimination based on religion, are firmly entrenched in section 15 of our Charter of Rights. I think this means that our democratic society is sufficiently liberalized to free individuals from any tendency of the state to use its power to impose religious dogma on them.
There is probably some merit in having witnesses confirm their obligation to tell the truth. Whatever the ceremony it should mean that the witness is being held accountable. The traditional oath, with its tenuous probe into the religious realm, does not have this effect. For those who are not believers, the religious factor is meaningless. For some with religious conviction, this pedestrian ceremony is trivializing and insulting, perhaps even blasphemous. For many, the ceremony is just foreign to their religious beliefs. A responsible person will speak the truth without a religious oath and for the others it means nothing anyway.
This was also the recommendation of the Ontario Law Reform Commission in 1991 in its Report on Child Witnesses:
The Commission recommends that the oath be abolished for child witnesses in civil proceedings. A review of the case law demonstrates that the oath has become an unworkable test of competency for children and has impeded many young witnesses from offering crucial evidence at trials. Moreover, studies indicate there is no correlation between understanding the meaning of the oath and speaking the truth in court. Furthermore, the transformation of Ontario, like other jurisdictions, from a religious to a largely secular society has accentuated the inappropriateness of the oath as a test of competency. The Commission therefore recommends that the oath be abolished as a test of competency for child witnesses. In our view, a simple promise to tell the truth should be the competency requirement for child witnesses in Ontario civil proceedings.
Some provinces have passed legislation in recent years addressed to the competency of children in legal proceedings. British Columbia and Saskatchewan have modelled their statutory provisions on section 16 of the Canada Evidence Act. However, Newfoundland and Ontario have broadened even further the ability of children to give evidence in civil matters. The relevant provision of the Newfoundland Evidence Act is reproduced:
Note that a promise to tell the truth, and not an oath or solemn affirmation, is a test of competency. Moreover, even children who do not comprehend the meaning of a promise to speak the truth may have their evidence admitted if the court considers it to be
The Ontario provision reads:
Children are presumed to be competent witnesses in Ontario. The legislation states that children can tender evidence by swearing an oath, giving a solemn affirmation or promising to tell the truth. As in Newfoundland, if a court considers the child's evidence to be sufficiently reliable the judge can admit the evidence even if the child has not demonstrated that he understands the meaning of the promise to tell the truth.
It is recommended that federal and provincial legislators amend their respective Evidence Acts to remove obstacles to the admissibility of children's evidence. In this way, the judge has the opportunity to consider the child's views and can assess the weight to be accorded to such evidence in the particular case. The new provision could include the following:
(4) in cases in which a child does not understand the promise to tell the truth, the evidence of the child will be admissible if in the court's discretion, the evidence is sufficiently reliable.
3.3.2 The Use of Screens in the Courtroom
Provision of screens to children in custody and access disputes serves two important functions. The erection of a screen, which prevents the child from seeing the parties to the proceeding, has the effect of reducing the anxiety of the child and of fostering an atmosphere in which the child can give accurate and comprehensive testimony. A one-way screen allows the parties and lawyers to observe the child while he or she is tendering evidence. Several jurisdictions, including England, Wales, and some U.S. States, have passed legislation that permits screens to be erected for children involved in the legal process.
In 1988, the Parliament of Canada introduced a provision into the Criminal Code which permits the use of screens in circumscribed situations. It is submitted that legislators should not blindly import section 486(2.1) of the Criminal Code into civil divorce, custody and access proceedings. It is noteworthy that the 1988 provision allowed only children who had allegedly been subjected to acts of sexual abuse to rely on this protective device. It was not available to children who had been victims of other crimes. In the 1997 amendments to the Code, the section was broadened to include acts of physical abuse, such as assault. Also, until recently, section 486(2.1) was restricted to victims of abuse and not to children who may have witnessed these crimes. The test that must be
satisfied to avail the child of a screen is onerous. It must be established, to the satisfaction of a judge, that the
"screen is necessary to obtain a full and candid account of the acts complained of from the complainant or witness." In other words, children who are capable of tendering evidence without a screen are denied this protective device. It is clear from the Ontario Court of Appeal decision R. v. Paul M. that prevention of trauma is not an objective of the legislation.
The London Child Witness Project in Ontario has criticized the restrictiveness of the screen provision in the Criminal Code. In a report, it stated that
"the formality of the application procedure and the difficulty in obtaining screens for young witnesses is unnecessary and not in keeping with the spirit of the legislation to make child witnesses feel more comfortable in a courtroom setting."
In 1989, the Saskatchewan Legislature followed the lead of the federal government and amended The Saskatchewan Evidence Act to provide screens for children in civil proceedings. Section 42.1(1) states that where:
Like its federal counterpart, Saskatchewan has adopted the
"full and candid test" of section 486(2.1) of the Criminal Code. Thus, the psychological health of a child is not a relevant consideration for judges in their determination of whether a screen should be provided to a child in civil proceedings. Note, however, that the provision is not restricted to disputes in which abuse is alleged. Screens are available to children in all civil proceedings.
British Columbia introduced an amendment to its Evidence Act in 1988 that enables children under the age of 19 to testify behind a one-way screen. However, this protective device is restricted to victims of sexual or physical abuse. Children who provide evidence in other types of legal proceedings cannot testify behind a screen. Nor can children who have merely witnessed events that are the subject of litigation. A further limitation is that the
"full and candid" test must be satisfied. The judge, justice, or a presiding officer must come to the conclusion
"that the order is necessary to obtain a full and candid account of the alleged abuse from the person alleged to have been abused."
In 1995, legislators introduced amendments to the Ontario Evidence Act  to allow screens for children in civil proceedings. Any child under 18 years old, not merely victims of abuse, may rely on this protective device. Moreover, the provision is broader than the federal legislation or the analogous statutory provisions in British Columbia or Saskatchewan. A screen is available if either it helps the child give complete and accurate testimony, or if it is in
"the best interests of the child." The section reads:
18.4(1) A witness under the age of 18 may testify behind a screen or similar device that allows the witness not to see an adverse party, if the court is of the opinion that this is likely to help the witness give complete and accurate testimony or that it has in the best interests of the witness, and if the condition set out in subsection (4) is satisfied.
(4) When a screen or similar device or closed-circuit television is used, the judge and jury and the parties to the proceeding and their lawyers shall be able to see and hear the witness testify.
3.3.3 Closed-Circuit Television
Live television link enables the child to be examined and cross-examined from outside the court in the congenial atmosphere of a witness room. Television cameras and screens are placed in the courtroom to enable the judge, the parties, and members of the public, to see and hear the child testify.
The availability of closed-circuit television for children is considered to have several advantages. First, it protects the child from the anxiety-inducing courtroom
"full of strangers and rituals." Second, it shields the child from physical confrontation with the parties to the proceedings. Third,
"it renders the child better able to tell his or her story, remember, and answer questions clearly and accurately." In other words, it enables the trier of fact to obtain a more detailed and accurate account from the child. Fourth, closed-circuit television has been credited with providing the benefits of a child courtroom at substantially less expense. Australia, England, and over 33 U.S. States allow children to provide evidence by closed-circuit television.
The Canadian government introduced a provision into the Criminal Code which allows children in criminal cases to rely on closed-circuit television in limited circumstances. Section 486(2.1) of the Code, amended in 1997, provides:
Notwithstanding section 640, where an accused is charged with an offence under section 151, 152, 153, 155 or 159, subsection 16(2) or (3), or section 163.1, 170, 171, 172, 173, 210, 211, 212, 213, 266, 267, 268, 271, 272 or 273 and the complainant or any witness, at the time of the trial or preliminary inquiry, is under the age of eighteen years or is able to communicate evidence but may have difficulty doing so by reason of a mental or physical disability, the presiding judge or justice, as the case may be, may order that the complainant or witness testify outside the court room or behind a screen or other device that would allow the complainant or witness not to see the accused, if the judge or justice is of the opinion that the exclusion is necessary to obtain a full and candid account of the acts complained of from the complainant or witness.
As is the case with screens in criminal proceedings, closed-circuit television is only available in cases in which sexual or physical abuse of the child is alleged. Moreover, the
"full and candid" test must be satisfied. Therefore, minimizing the stress or anxiety of the child is not an objective of the legislation.
Some provinces have introduced similar provisions. Saskatchewan, for example, permits all children, not only those who have allegedly been abused, to tender evidence by closed-circuit television. British Columbia has restricted the availability of this protective device to children who have been physically or sexually abused by a party to the proceedings. Like the federal provision, it must be demonstrated that reliance on closed-circuit television is necessary for the child to provide a complete and accurate account of his or her testimony.
The Ontario legislation is broader than the closed-circuit television provisions of British Columbia, Saskatchewan or section 486(2.1) of the Criminal Code. Either of the following two criteria must be satisfied under section 18.4(2) of the Evidence Act:
It is submitted that legislation should be introduced to allow all young persons to provide evidence in divorce, custody, or access disputes by closed-circuit television.
3.3.4 The Use of Videotapes
Videotaping the statements of a child is another method by which courts can hear directly the wishes and interests of a young person. Videotaping has been heralded as one of the most innovative responses to eliciting the views and observations of children. As stated by the Law Reform Commission of Australia:
It is clear that the traditional manner of taking evidence is undergoing a searching re-examination in the light of modern technological developments and that video-recording is being seen as a way of using that technology to treat child witnesses more humanely.
Two methods of eliciting the child's views by videotape will be considered: (a) videotaped testimony and (b) videotaped interviews.
(a) Videotaped Testimony
Some jurisdictions permit children to give evidence by videotaped testimony. The child is examined and cross-examined before a judge in a small, congenial room rather than a courtroom. The proceedings are informal. Legal garb is not worn and the judge, counsel, and the child sit together at a table. The parties to the litigation are not present in the room; they view the proceedings through a one-way screen or through the medium of closed-circuit television. They communicate with their lawyers through a microphone and an earpiece.
The video recording of the child's evidence is presented at the trial some months later. Some of the advantages of videotaped testimony are:
Evidence by videotaped testimony, also referred to as videotaped depositions, is offered to children in continental legal systems as well as common law jurisdictions. New South Wales, Scandinavian countries, and some U.S. States permit this mode of tendering evidence for young persons. Ontario introduced in the Evidence Act  a provision on videotaped testimony. Children are permitted to rely on section 18.3 if either (1) it is in the best interests of the child, or (2) it is likely to help the child give complete and accurate testimony. Lawyers for the parties must be present when the evidence is tendered and must be given the opportunity to examine the child
"in the same way as if he or she was testifying in the courtroom."
(b) Videotaped Interviews
Several jurisdictions permit videotaped interviews of the child, which take place months before the trial, to be entered as evidence in legal proceedings. The virtues of such a technique are that the interviews take place in a relaxed setting which minimizes the anxiety of the child. Also, the trier of fact receives more comprehensive evidence than testimony given months later in a more threatening environment. The videotape captures the child terminology, facial expressions, and emotional responses. According to the Supreme Court of Canada,
"Scientific study has indicated that, as compared to a courtroom setting, the quality and reliability of children's testimony is significantly enhanced in a smaller, more intimate, videotape environment." According to Spencer and Flin in The Evidence of
Children: The Law and the Psychology, videotaped interviews:
…enable the court to hear an unquestioningly accurate account of what the child was saying about the incident at the time it first came to light, before time wiped certain details from his or her mind, and prompting or questioning by adults implanted others.
Another virtue of videotaped interviews is that parents may view the tape in advance of trial and consequently, may be more apt to take the needs and wishes of their children into account in their representations to the court.
The provision introduced in the Criminal Code by the federal government in 1988, since amended in 1997, requires that several conditions be satisfied for a videotaped interview of a child to be admissible. Section 715.1 is only available for offences involving the abuse of a child. In addition, videotape must be made within a reasonable time after the alleged offence. A further criterion is that the child must appear at the trial and adopt the contents of the videotape. The child is subject to examination and cross-examination by counsel. The Supreme Court of Canada has noted that although the child must appear in court, the introduction of the videotaped interview reduces the time the child is required to remain on the witness stand during the trial.
The province of Saskatchewan permits videotaped interviews of children to be admitted in civil proceedings. Section 42.2 of the Saskatchewan Evidence Act provides:
In any proceeding in which a witness was under 18 years of age at the time the events occurred about which he or she is testifying, a videotape:
is admissible in evidence if the witness adopts the contents of the videotape while testifying.
The Saskatchewan provision is not restricted to cases of abuse and, therefore, videotaped interviews of children are admissible in all civil proceedings. However, like section 715.1 of the Criminal Code, the child must appear at the trial to adopt the contents of the videotape and is subject to examination and cross-examination.
In Ontario, it is necessary to obtain leave of the court for videotaped interviews to be entered into evidence in civil proceedings. Although it is available to all persons under 18 years old, children must also be present at the trial to adopt the contents of the videotape.
It is important to note that a judge in any legal proceeding has the discretion either to refuse to admit, or to edit, portions of the videotape if the probative value of the videotape is slight.
In R. v. L. (D.O.), a case in which section 715.1 of the Criminal Code was constitutionally upheld, the Supreme Court of Canada lists factors that judges can consider when exercising their discretion whether to admit a videotaped interview of a child. Some of these factors are:
It is submitted that videotaped interviews of children should be admissible in proceedings in which custody and access is an issue to be addressed by the courts. Providing the videotape is considered to be a reliable by the judge, it should be a component of the evidence to be considered by the court in family law proceedings.
3.3.5 The Presence of a Support Person
The presence of a support person to provide emotional support to children during the course of the legal proceedings has been advocated by law reform bodies, academics, and other members of the legal profession. At the hearings of the Special Joint Committee on Child Custody and Access, children complained that they did not have the support systems that were available to their parents.
Support persons can perform valuable functions. They can discuss with the child any anxieties that they are experiencing as a result of their parents' separation or divorce. Support persons can explain the stages of the proceedings to the child, be physically at the child's side while they are giving evidence and be present while the child is waiting in court or in a lawyer's office. In addition, the support person can reassure the children that articulating their views and interests to judicial decision-makers is an important and worthwhile endeavour. As stated by the Scottish Law Reform Commission, the close presence of a trusted adult can, in some cases,
"give a young child the reassurance that is required for evidence to be given clearly and confidently."
In criminal proceedings in Canada, children under 14 years old who have allegedly been abused are permitted to have a support person in close proximity while tendering evidence. Section 486(1.2) of the Criminal Code states that the choice of the support person rests with the child. A witness in the proceedings may serve as a support person if the presiding judge, provincial court judge or justice is of the opinion that the proper administration of justice so requires. Section 486(1.4) of the Code states that the judge can order that the support person and child not communicate with each other while the child is testifying.
Ontario permits a support person to be in close proximity to the child in civil proceedings for all persons under 18 years old. The Evidence Act provides examples of circumstances in which a support person may not be suitable. They are:
In such cases, the child will have the opportunity to select an alternative support person.
It is recommended that children in Canada under the age of 18 years be permitted by statute to appoint a support person to provide them with emotional support during divorce, custody, and access proceedings.
3.3.6 The Role of the Judge
Judges have an important role to play in protecting children in family law proceedings. Members of the judiciary have inherent jurisdiction to control their own process for the proper administration of justice. It is essential that judges take measures to ensure that children in family law cases are treated
"with due regard for the dignity and legitimate privacy of the child and without seeking to intimidate or humiliate them." As an Ontario judge stated, judges have a clear role
"to ensure that the advocacy process is not misused."
Psychologists Gail Goodman and Vickie Helgeson have observed some of the behaviours engaged in by lawyers with children in legal proceedings. Use of complicated vocabulary, double negatives, difficult sentence constructions and intimidating techniques designed to undermine a child's confidence, are some of the practices resorted to by some members of the legal profession. Judges can ensure that all proceedings are conducted in age-appropriate language and they can control counsel who seek to intimidate the child. Also, members of the judiciary can protect the child by preventing questions from being asked that require the child to state a preference between parents. In For the Sake of the Children, the Special Joint Committee made reference to a judge in Michigan who habitually informs children in custody and access cases that he and not the child is the decision-maker. These statements are designed to ensure that children do not take responsibility for the outcome of the case.
Judges can also ensure that the physical surroundings are conducive to eliciting the testimony from children in an environment that reduces anxiety. For example, a child may be comfortable speaking to a judge from a location in court other than the witness stand. It is important that members of the bench receive education in child psychology and be provided with appropriate skills with which to communicate with children.
The Supreme Court of Canada has endorsed the view that judges have a crucial role to play with respect to children who participate in the legal process. L'Heureux-Dubé J. in R. v. L. (D.O.) said the following:
It is my view that, in the case at hand as well as in other cases involving fragile witnesses such as children, the trial judge has a responsibility to ensure that the child understands the questions being asked and that the evidence given by the child is clear and unambiguous. To accomplish this end, the trial judge may be required to clarify and rephrase questions asked by counsel and to ask subsequent questions to the child to clarify the child's responses. In order to ensure the appropriate conduct of the trial, the judge should provide a suitable atmosphere to ease the tension so that the child is relaxed and calm.
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