Cross-examination on a Voice of the Child Report.
Background:
The parties were never married and had separated before the child was born in 2009. The application began in 2010, which resulted in a 34-day trial primarily on parenting issues in 2013. The final order contemplated a step-up parenting schedule for the father which was never achieved. Both parties argued that the other parent had not complied with the parenting order. The father had been to court or arbitration six times to attempt to enforce his parenting rights. The father has brought a motion to change seeking increased decision-making responsibility and parenting time.
At an urgent case conference held on July 9th, 2021, the parties agreed to appoint the OCL to produce a Voice of the Child Report, delivered on August 19th, 2021. On November 24th, the father’s counsel wrote to the OCL giving notice of his intention to cross-examine the clinician who prepared the Voice of the Child Report as follows:
“Admittedly, I do not agree with the contents of the report or its conclusions, but the veracity of the report and the weight to be given to it can be dealt with at trial after cross-examination of the clinician. My concerns with the Report are: (i) C. parrots the Applicant Mother’s position; (ii) his answers appear to be coached; and (iii) the views and preferences expressed by C. in the report were not freely given.”
The mother filed an affidavit four days later objecting to the private retainer. She argued that the father is openly challenging the child’s express views and preferences through cross-examination of the Voice of the Child report, therefore the child should have legal representation in the form of OCL. The father argued that appointing counsel for the child would force the child into the middle of a high conflict parenting dispute. The father proposed an alternative, where a private lawyer provides legal representation, and the parties split the costs.
Analysis:
In determining the best interest of the child, under section 24 of the Children’s Law Reform Act, the court must consider all factors relating to the child’s circumstance. This includes the child’s views and preferences based on age and maturity. The United Nations Convention on the Rights of the Child (UNCRC), which Canada is a signatory to, recognizes the agency of children and states that children who are capable of forming their own views, have a right to express those views in all matters affecting them.
The court, on consent, ordered the Voice of the Child report to hear the child’s views and preferences. The father asserts that those views are not independent, but the product of the mother’s undue influence. The cross-examination would undermine the child’s rights to be heard, as it is the only evidence on the child’s views and preferences. Justice Kristjanson relies on the reasoning in G. (B.J.) v G. (D.L.) 2010 YKSC, where Justice Martison stated that the UNCRC is very clear, and there is no exception for cases involving high conflict. The key issue will be the weight given to the child’s views, but these views will be before the court.
The father further argued that the child should be kept out of litigation, and appointing OCL would be forcing the child into the middle of a legal conflict which causes distress. The Court of Appeal for Ontario has recognized the OCL as a model in promoting access to justice for children by ensuring their views and preferences are heard in a manner that does not expose them to further trauma.
Conclusion
The court ordered that OCL is requested to provide legal representation for the child in the upcoming motion to change on May 24th, if OCL declines, then either party may bring a short motion to appoint private counsel. The court further ordered that the cross-examination of the Voice of the Child report is not to be conducted until the issue of legal representation of the child is decided.
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