Chapter 1: Introduction and Objectives of the Project

Children can often be at the heart of parenting disputes, leaving parents, decision-makers, lawyers, social workers, researchers, policy professionals and other practitioners asking important questions about how to best ascertain the views of children. While the voice of the child can be defined in different ways, it generally involves direct and indirect opportunities for children to have input into decisions regarding parenting plans post-separation and the mechanics of making the wishes of children known during parenting disputes, divorce or separation.

The increased focus on children’s views in family law matters has led to important academic and policy conversations regarding the optimal strategies and opportunities for including children’s points of view when creating parenting plans post-separation and divorce. The Department of Justice Canada has been actively considering children’s voices in family law matters and has spearheaded a number of important projects regarding the methods for including children’s voices. This work includes a collection of reports produced between 2002 and 2012 on the voice of the child in family law.Footnote 1 These reports explain the rationale for hearing the voice of the child in family law matters, the domestic and international legal background on the voice of the child, the historical debates in voice of the child scholarship and the role of counsel for children. Current research on the voice of the child has shifted from questions about why the voice of the child is important to how to include the voice of the child. Scholars have also noted that children want their voices heard without the constraints of social and legal obstacles.Footnote 2 Given the opportunity, children generally appreciate the opportunity to share their views.Footnote 3

There remains considerable debate about the key strategies to hear the voices of children in family law matters. Several methods have been developed to hear children’s voices both within the context of court services (e.g., judicial interviewing) and outside of the court process (e.g., child-inclusive mediation). Children are also typically interviewed as part of child custody assessments performed by social workers, psychologists, and psychiatrists. Voice of the Child Reports provide children with the opportunity to share their experiences, views and preferences regarding parenting plans. Children can also share their views with lawyers who in turn share these views with the court. In cases where family disputes are moving towards a trial, children may have the opportunity to meet with the judge.

This project explores the different ways that the voice of the child can be considered in Canada and the various approaches to include children’s voices within the context of Canadian family law (e.g., parenting plan assessments, Voice of the Child Reports, legal representation of a child, and judicial interviews of children).Footnote 4

Further, this review provides descriptions of promising practices for bringing the voice of the child into decision-making processes and discussions of case law where relevant. This report presents the best available research and legal analysis regarding children’s voices and updates the picture of how to incorporate children’s voices in family law situations in Canada. The review of research and law serve to inform policy makers, family law practitioners, parents and the public. The promising practices and discussion of advantages/disadvantages address the cultural changes of family law that are needed to better address children’s voices within current practices.