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Do Children get a Voice in Family Proceedings?

In making an agreement or order for care and time of children the parties and the court must consider the best interests of the child only. Under the Family Law Act, Division 1, Section 37(2), there is a specific list of factors to consider in determining the best interests of children. At subsection b on that list it states that the child's views should be considered unless it would be inappropriate to consider them. Therefore, if it is determined that it is appropriate to consider the views of the child then the court may appoint someone to assess the views of a child in relation to a family law dispute. That person must be a family justice counselor, social worker or another person approved by the court and must be independent of the parties. However, practically speaking how does this happen? There are different ways in which this evidence can be obtained. The most commonly used are the Views of the Child Report and the Voice of the Child Report. What's the difference?

Voice of the Child Report (also referred to as a "Hear the Child Report")

One of the most common ways of providing evidence of the child's views to the court is to obtain a Voice of the Child Report.   Individuals who produce these reports include both experienced family lawyers and mental health professionals who have received training and have developed a skill set for interviewing children. While they are qualified to interview children and relay the information they are not qualified to provide opinions or assess the views of a child. These reports are basically hearsay evidence designed to allow the child a voice in the decision of their parenting.

Views of the Child Report

A Views of the Child Report is a more in-depth report that provides opinion and assessment on the child's views. Individuals who prepare these reports have the expertise to provide expert opinion evidence to the court.   Most these individuals would prepare an extensive report commonly referred to as a section 211 or custody and access report. However, keep in mind that they are simply one piece of evidence that the court considers when making a decision on the best interests of children. A terrific resource for more information is the website hearthechild.ca. If you want to discuss whether or not it's appropriate to obtain a Voice of the Child Report or a Views of the Child Report please contact the experienced lawyers a Henderson Heinrichs LLP for a free initial consultation.

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