According to Ok! Magazine, Pax and Shiloh Pitt have asked Angeline if they can live with Brad Pitt in their Los Angeles-area home. After the couple filed for divorce, Angelina reportedly took the children to her rented home in Malibu. Given that the children have expressed a preference, it is possible that their views and preferences be taken into account in determining what is in their best interests regarding custody and access.
Although children are at the center of custody and access disputes, they are not parties to proceedings regarding separation and divorce. Nevertheless, there a number of arrangements available to ascertain the children’s wishes and preferences. In Stefureak v Chambers (2004), 6 RFL (6th) 212, the Ontario Superior Court of Justice reviewed four methods by which a child’s views and preferences could be submitted to the court:
- Through an assessor or another mental health professional who has been in contact with the child;
- Through the parties and their witnesses, who provide hearsay evidence of the child’s statements outside the court;
- By means of a judge’s interview with a child outside the courtroom; or
- By having a child provide direct evidence to the court as part of the proceeding.
To determine the appropriateness of a particular method, the court must balance the interest to protect the children upon family dissolution with a need to ensure that their interests are actually represented.
In Ontario, the Courts of Justice Act (CJA) also provides for Office of the Children’s Lawyer to assist the court in ascertaining the views and preferences of the child. The CJA permits the court to request the Office of the Children’s Lawyer to provide legal representation for a child; and that the Office of the Children’s Lawyer may undertake an investigation and report and make recommendations to a court in a custody and access proceeding pursuant to the Divorce Act or the Children’s Law Reform Act.
Notwithstanding the above, some courts tend to limit requests for the involvement of the Office of the Children’s Lawyer. It has been suggested that involving the Office of the Children’s Lawyer has a direct implication on the children during litigation to the extent that it may function as a blunt instrument in some cases. Ultimately, the court must consider the views and preferences of the child with a view to the “best interests of the children”.