Canadian Lawyer

LEGAL REPORT/FAMILY LAW says McCarthy. These days however, some judges are dipping their toes into the once-scalding waters of interview- ing and meeting with children, albeit in varying degrees depending on the indi- vidual and jurisdiction. Bottom line: it's an emerging issue that has its contro- versies, say lawyers. While children's voices have always been heard in these matters, they're usually vocalized through a third party, says Cathryn Paul, an Oakville family law mediator and agent with the Office of the Children's Lawyer. "It does hap- pen now in Ontario that a judge will meet with a child in chambers, but it is fairly rare here because there are other ways to bring that voice into court," she says. But a dialogue happening now in Ontario could result in adding another tool to the kit for judges in these mat- ters, including a system that assists in hearing from children directly, says McCarthy. In spring 2011, a province-wide committee co-chaired by McCarthy and Dan Goldberg of the Office of the Children's Lawyer, was struck under the umbrella of the Advocates' Society and the Association of Family and Conciliation Courts, Ontario chapter, to write a discussion paper that will include draft guidelines for judicial interviews/meetings with children in custody and access cases, she says. The committee, made up of judg- es, family lawyers, and mental health professionals, wrapped up a series of Ontario-wide town hall meetings with family law stakeholders in December. "The goal is to continue the dialogue about ways to put the child's voice before the court, provide some sug- gested guidelines for when judicial interviews are more or less appropriate, and set out considerations for judicial interviews when they are occurring," says McCarthy. The idea isn't to eliminate already-tried-and-true methods that include mental health professionals, social workers, and/or the Office of the Children's Lawyer, but rather add another option for certain cases that would benefit. Toronto family law lawyer Murray Maltz says he has had clients who want- ed their children to testify and "the judge has not been particularly recep- tive to it," even though the Canada Evidence Act does provide that ". . . a person of any age is presumed to be competent to give evidence . . ." And, of course, every situation will not call for it. Justice Ruth Mesbur, for example, in the 2010 alienation case S.G.B. v. S.J.L. wrote: "I do recognize that children's wishes and preferences are relevant to determining their best interests, particularly in the case of older children such as JB. That said, the court does not have to hear from children directly to find out what their wishes and preferences are. . . . I saw no benefit in meeting with the boys in the course of the trial. To the contrary, I saw only negative effects in doing so, which is why I did not." "There are cases in which it will not be appropriate," says McCarthy. "But there are also situations in which children want to have a say, or in which an entire dispute can be resolved by a judge speaking to a child, with great efficiency and savings for all. Think about a teenager whose parents are fighting about whether he should go on a trip over the summer; both parents say the child wants to spend the sum- mer with them, but in five minutes a judge might discover the child would rather go to camp." Maltz says there is an ongoing dis- cussion around the concept that in some instances children should be heard by judges directly, but in his experience, through the current meth- od of third-party assessors, the "truth is ferreted out." The discussion paper idea evolved the over three years, says McCarthy, after she had a conversation at a conference with Justice George Czutrin, Toronto's chief family law judge. McCarthy says Czutrin had many international judi- cial colleagues who were surprised to hear that judges don't regularly meet with children in Ontario. He suggested that renewed, thoughtful discussion ACCESS SSAG GUIDELINES ON THE GO SPOUSAL SUPPORT IN CANADA ANN WILTON, NOEL SEMPLE AND MacDONALD AND PARTNERS, LLP Get quick access to Spousal Support Advisory Guidelines (SSAG) when you are in court litigating a case, visiting clients or researching. Spousal Support in Canada provides you with a portable quick reference on how the courts presently determine spousal support. ORDER # 983703-65199 $99 Softcover 320 pages July 2011 978-0-7798-3703-8 Shipping and handling are extra. Price subject to change without notice and subject to applicable taxes. AVAILABLE RISK-FREE FOR 30 DAYS Order online at www.carswell.com Call Toll-Free: 1-800-387-5164 In Toronto: 416-609-3800 www.CANADIAN Lawyermag.com M A RCH 2012 39

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