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Bringing the voice of the child into mediation

Understanding a child’s perspective can be helpful for separating spouses using mediation for custody and access disputes, says Oakville family lawyer and mediator Cathryn Paul.

Through a series of meetings between children — usually those over the age of 10 — and a social worker, Paul says the "voice of the child" can be brought to the table for consideration, often revealing needs and wants the parents weren’t aware of.

"A child consultant brings the concerns and perspective of the children into the mediation and also provides insight on how parents can best meet their developmental needs. Kids aren't going to tell you what they need to become successful adults,” says Paul, who practises under Cathryn L. Paul, Lawyer, Mediator, Arbitrator and Oakville Mediation.

“It’s helpful to include a professional with that specific expertise,” says Paul, adding the consultation is always voluntary, and both parents must agree to it.

One of the most common examples is disputes over parenting schedules, she tells AdvocateDaily.com.

A mother might believe the children should live with her to maintain stability, while the father may argue that if both spouses play an equal role in parenting, there is no advantage to having them in the same place during the week, and the mother is trying to keep him out of their lives, Paul says.

“In that situation, both parents have very different perspectives, and they could argue back and forth forever,” she says. “So it's often helpful to have someone meet with the kids, not necessarily to determine where they want to live, but to understand their personalities, values and the importance of stability in their lives.”

The social worker would then present the children’s views and preferences in a mediation session while, if the parents wish, providing insight on the schedule that best suits the children.

Reflecting the child's voices doesn't mean they would attend the mediation, Paul says.

“It's done in a way that insulates them from what's going on between the parents,” she says. "They need to be heard — because this is going to affect them more than almost anyone else." It is well-recognized that children have the right to have a voice in matters that affect their welfare, as set out in the UN Convention on the Rights of the Child, to which Canada is a signatory.

Article 12 states: "Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

"For this purpose, the child shal, in particular, be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law."

This concept has recently been brought forward in Bill 57, Katelynn’s Principle Act, which, if brought into force, would apply to any person with the power to make decisions under Ontario law relating to the justice system, Paul says. It enshrines a number of principles, including “the child is an individual with rights. The child must always

It enshrines a number of principles, including the child as "an individual with rights. The child must always be seen, the child’s voice must be heard, and the child must be listened to and respected.”

Often, even if parents are separating amicably, it can be difficult to understand how their children are truly reacting, Paul says. Children are often loyal to their parents and tend to tell them what they want to hear. It is very common for children to tell each parent that they want to live with them, or to relay negative things happening in the other home.

“Parents can get very focused on the conflict and their own positions and lose sight of what life is going to look like for the kids,” she says. “It can help to have a neutral professional refocus the parents to help them meet their children’s needs."

Sometimes parents don’t want to have their children meet with a professional because they are concerned that the child will feel pressure to “choose sides," Paul adds. While that is not the approach that the professional would take, there is an alternative that may be more palatable to some.

Instead of bringing the children’s views and preferences into the mediation, with younger children, or in cases where the parents do not want to have the children meet with a professional, a mental health practitioner may be brought into the mediation as a parent educator. In this role, he or she would learn from the parents what the children are like, Paul says. He or she would then talk to the parents about children’s needs and development, and how they may best meet them.

“Even when one ex-spouse values the other, they might need extra help in recognizing what is best for their children," she says. "A brief involvement of a neutral parenting expert can help set them on the right path, and benefit their children in the long run.”

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