Parenting Disputes and the Opinions of Children

We often are asked at which age children are “allowed” to choose which parent they want to live with, or how often they spend time with each parent.

There is no magic age at which children have a choice. However, the courts are increasingly considering the opinions of children depending on their age and degree of maturity. If the children are deemed to be mature enough, those children are increasingly given a choice.

In Raugust v Raugust, 2018 ABCA 30, a case we have previously discussed, the Court of Appeal refused to stay the decision of the chambers judge to allow a 14-year old girl to choose how often she had parenting time with her father.  The chambers judge had noted that at age 14, this girl could “lace up her sneakers” and go see her father whenever she so chose.

In the recent Supreme Court of Canada (“SCC”) case of Office of the Children’s Lawyer v Balev, 2018 SCC 16 (“OCL”) the Court addressed a case that fell under the Hague Convention on the Civil Aspects of International Child Abduction.  In its consideration of the terms and articles of the Hague Convention the Court looked when the views of the child could be determinative of whether the child was returned to their home country or permitted to stay with their “abductor”.

Under the Hague Convention once a finding has been made that a child was wrongfully removed from their home country, there are very limited exceptions that can be used to avoid the return of the child.  In OCL the SCC considered when the views of the child could be used as an exception, and held that:

“If the elements of (1) age and maturity and (2) objection are established, the application judge has a discretion as to whether to order the child returned, having regard to the “nature and strength of the child’s objections, the extent to which they are ‘authentically her own’ or the product of the influence of the abducting parent, the extent to which they coincide or are at odds with other considerations which are relevant to her welfare, as well as the general Convention considerations”

The SCC further clarified that determining sufficient age and maturity in most cases is simply a matter of inference from the child’s demeanor, testimony, and circumstances, but  that some cases may require expert evidence or professionals retained to examine the child professionally.

Most lawyers are not parenting experts nor are they trained (child) psychologists.  Some are trained in interviewing children, others have less experience. Nonetheless, and notwithstanding the guidance of the SCC in OCL the recent trend towards giving great weight to a child’s opinion on the parenting arrangement they would like, highlights a concerning issue that a parenting case can be decided based on the representations of a lawyer who:

• may have only met the child(ren) on a few occasions;
• who is not a trained psychologist;
• who cannot be cross-examined; and
• and who has not done a comprehensive assessment regarding the family dynamics and circumstances.

On the other hand, if psychologists or other parenting experts are retained to provide opinions of the children to the courts, these experts must undertake one of many extensive processes that are required by the Alberta Court of Queen’s Bench. If they wish to provide a recommendation about a child’s parenting plan, the process is rigorous and subject to challenge.

The processes that the Court will often invoke can include:

• A PN7 Parenting Intervention: this can take a variety of forms but the Parenting Expert will typically meet with the parents, and often the children, in an effort to reach resolution for the family; and if resolution is not possible, provide an opinion to the court regarding the difficulties that the parents are facing.
• A PN7 Voice of the Child Intervention: where the Parenting Expert will meet individually with the child and with the parents, before providing a report to the Court that is intended to give a “voice” to the child, and provide the child’s opinion in the context of the custody dispute, carefully weighing the views of the child whole considering their age and maturity. The assessor can still be cross-examined and the information challenged. A recommendation cannot be provided.
• A PN8 Assessment: where the Parenting Expert conducts a comprehensive assessment of each parent, their home, collateral contacts and their relationship with the child. Psychological testing is conducted. This process is intrusive and comprehensive. The assessment “evaluates the parents’ capacities to meet their children’s needs, and their personal and parenting strengths and vulnerabilities…additionally, it involves a comprehensive evaluation of the children’s developmental needs and observation of parent/child interactions…”. Accordingly, in a PN8 Assessment this is the only time a psychologist or parenting expert can make a  recommendation to the court regarding parenting time and responsibilities of each parent.

The recent move of the courts toward considering children’s opinions without comprehensive safeguards in place (such as via PN7 Interventions or PN8 Assessments) and the ability to cross examine the person who interviewed the children, can reduce legal costs but it cannot always ensure that the opinions of the children are sincere, accurate, and untainted by the influence of the parents.  As the SCC said in OCL it is critical that the child’s opinion is “authentically her own”.   Without such safeguards in place, the opportunity arises for parents to commit mischief by simply allowing, or persuading, their child to decide the parenting arrangement.

Any desire to reduce cost must be balanced with the importance of ensuring children’s views are fully explored and provided without influence.