Canadian Lawyer

LEGAL REPORT/FAMILY LAW "We've seen an increase in judicial interviews in Toronto, though you'd still have to describe them as rare. But it is happening that judges are meeting children, lawyers are asking at motions and case conferences if the judge will see a child." MARTHA MCCARTHY about judicial interviews should be engaged to see if the current attitudes and approaches were best for serving children and families in custody cases. "I said to him, 'Let's do a program together.' We went to the Law Society [of Upper Canada] and put togeth- er a program that became known as 'The Voice of the Child.' The program is a full day, multi-disciplinary, and starts with the co-chairs emphasizing that this is a dialogue and there is no right or wrong answer. . . . It's a true colloquium." The first was held in March 2009 and the third will be held this year on March 28. "At the end of the first year there was really a lot of interest and discussion and flexibility and people talking about all kinds of circumstances in which interviews were helpful or appropriate. Judges came and talked about how they have had interviews with children; they told stories about times that it worked and didn't work. Custody assessors, social workers, chil- dren's lawyers, child protection lawyers, and all kinds of family lawyers attended. We had a very diverse representation and there was way more flexibility and openness to discuss and consider the issue than I think anybody thought," says McCarthy. After the second conference, McCarthy says there was a consensus that, "we should be writing down some guidelines for circumstances under which they'd be recommended or not and if judicial interviews — they're conducted, what should happen." There was also some change noticed, particularly in Toronto, after that con- ference. "We've seen an increase in judi- cial interviews in Toronto, though you'd still have to describe them as rare. But it is happening that judges are meeting children, lawyers are asking at motions and case conferences if the judge will see a child," says McCarthy. "What I would say we saw as a trend emerging from our conferences is that there can be circumstances in which a judge or the family find interviews to be help- ful. So we had judges telling stories about learning about a child's particular extracurricular interest and taking that into account in fashioning a remedy, or a judge meeting with children after hav- ing rendered a decision to explain what was decided to the child." McCarthy says her opinion falls in the middle of the spectrum. "I think the forensic interview can be problematic and there's real issues about procedural fairness," she says. "During a trial I would have serious concerns about a forensic interview occurring. . . . But I am in favour of talking about it and being open to circumstances in which it can be a very helpful thing to everyone in the process, including the child." For her part, Paul says while she recognizes she may be biased, she believes Ontario's OCL system is effec- tive and, in fact, an unusual approach as 40 M A RCH 2012 www. CANADIAN Lawyermag.com hildview_CL_Mar_12.indd 1 12-02-13 8:44 AM

• Cover