Children subject of custody litigation, not parties to divorce

By Staff

Appointing counsel to represent a child in a family law dispute can make an already contentious situation worse, Toronto family lawyer Brian Ludmer tells

“No matter what you try to do to take into account the views and preferences of the children, it is not a benign process. Particularly if it’s handled insensitively or without the requisite caution, it can make things worse,” says Ludmer, principal of Ludmer Law.

He says it’s important to note that children are not parties to their parents’ divorce but are the subject of custody litigation — a point that often “gets lost in the shuffle.”

“The last thing you want to do is triangulate children into their parents’ disputes, which can be harmful or traumatic for them,” he says. But at the same time, “we want to hear from the children about their views and preferences,” which can lead to them being asked to choose which parent they would rather live with, instead of focusing on the important principle of a child’s best interests.

“This can create guilt in the children and make them afraid that what they say will get back to the other parent — but also you’re creating a further incentive and forum for parental manipulation of the children,” Ludmer says.

Courts want to hear the “voice of the child,” and there are various ways to do that, he says, including through a family therapist, a formal forensic family assessment, a judicial interview or a lawyer appointed for the child — either privately under the Children’s Law Reform Act or from the Office of the Children’s Lawyer (OCL), which operates as an independent law office in Ontario’s Ministry of the Attorney General.

“Apparently Ontario has the largest publicly funded child representation program in North America,” Ludmer says of the OCL, which is included in the Courts of Justice Act. While it’s the most commonly used modality, he says it can be problematic, much like a judicial interview — in part, because “it gives children a seat at the table of their parents’ divorce.”

When an OCL lawyer is appointed to represent a child, their stated role of being “solely an information conduit” isn’t necessarily carried through in practice, and can become “distorted, elevated and expanded,” he says.

He says in a custody dispute with an OCL lawyer, the balance can tilt in favour of one parent because counsel “is not in a position to certify the independence of the children’s views” and ensure they are free of parental manipulation.

“They’re obligated to bring all relevant information to the court’s attention, but that doesn’t always happen," Ludmer says.

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