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Voice of the Child reports now offered throughout Ontario

While children can’t decide their own fate when their parents divorce, they do have a say in the process, says Toronto family lawyer Lisa Gelman.

The problem is that the courts may not hear what the child really wants, says Gelman, principal of Gelman & Associates.

It may be out of fear of one parent — or of hurting someone’s feelings — but children may tell parents what they want to hear, rather than what they really feel, she tells AdvocateDaily.com.

Similarly, parents may simply hear what they want to hear, says Gelman.

“There are two main reasons why children say different things to each parent,” she says. “Either they're trying to please that parent or they're afraid of them. So they tell one parent one thing and the other something else, and both parents believe they are relaying the child’s true feelings to the court.”

So what’s a family court judge to do?

For starters, says Gelman, they can ask the Office of the Children’s Lawyer (OCL) — which represents children under the age of 18 in court cases, including those involving custody and child protection issues —  to prepare a Voice of the Child (VOC) report.

A memorandum from the Ministry of the Attorney General says Voice of the Child reports summarize a child’s “views and preferences about a particular issue related to a custody and access dispute.” The reports, which are only done with children over seven years of age, are prepared by an OCL clinician after meeting with the child twice.

In June, the government announced that the reports would be available province-wide after a research project revealed “quite positive” feedback from parents, children and justice officials, according to the memorandum.

While the courts have always had the power to order full, in-depth assessments by the OCL, Gelman says VOCs are a relatively new tool at their disposal.

“The Voice of the Child report is a limited version of a more in-depth report that has typically been done in the past,” she explains. “The traditional model is still around, but what they have added is a truncated version of that.

“So basically, it's an ability to get the views of the child into the court in a speedier way and not as intense as a full-blown investigation.”

Gelman says one of the most common scenarios is where “the mom says the child doesn’t want to have more time with dad, and the dad is saying the child wants more time with him — or vice versa. And so who's right? Well, the Voice of the Child report can answer that.”

Her firm recently handled a case where such a report provided an invaluable and, hitherto unknown, perspective from the child.

The parents shared 50-50 access of their daughter over the summer, and everything seemed to be going well until the mother asked to revert back to an older agreement that limited the father’s access to alternate weekends.

“It seemed pretty unfair for the mother to take time away from the father when there was no indication at all that the child had any issues with the father,” Gelman says.

“And so we went to court and ultimately agreed to a Voice of the Child report, which basically concluded that the child did not want to spend more time with the father — but only during the school year. The girl wanted one base rather than two equal homes because it allowed her to be grounded and to better focus on school. 

“But she had no issues in having 50-50 access during the summer when she didn’t have to worry about school,” says Gelman.

Cases like that prove the value of the reports, she says.

“But the caveat is that it’s a good tool as long as it’s used appropriately,” says Gelman. “There's the balance of expediency versus having the full picture.

"The potential risk is that people will rely on it in cases where more information — and corroborating evidence — is required. In those cases, those involved will have to wait a little longer for the more in-depth Focused Children’s Lawyer Report.”

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