Separation can be a stressful and confusing experience for children, particularly if their parents are at odds over their living arrangements. Despite what you may see in movies, kids don't simply choose between their parents.
In family law, decisions about children break down into several categories, including health, education, religion and spirituality, culture and extra-curricular activities. The obligation is on the parents to make decisions on these issues, usually through a parental decision-making and responsibility agreement.
But if you and your ex don't have an agreement yet — or you're unable or unwilling to negotiate — a judge may commission an assessment to gain insight into the child’s wishes, or the best interests of the child when they are very young.
This assessment is sometimes known as a Voice of the Child (VOC) Report, which is essentially a rebranding of what used to be called a Wishes of the Child, or a Best Interests of the Child report, depending on the age of the child or children involved.
The idea behind a VOC report is to give children a say in the decisions that affect them when they would otherwise have no voice. Although it's a catchy name, their voice will actually be filtered through a clinician. But more on that later.
Recent amendments to the Divorce Act have changed some of the terminologies around parenting arrangements. For example, "parental decision-making responsibility" takes the place of "custody" and parenting time takes the place of "access."
In a mediation process, parties can retain a social worker or psychologist privately who will work with the family and prepare a comprehensive assessment. Essentially, this clinician spends a significant amount of time with family members and devises a custom parenting plan. While this route is fantastic, it can cost somewhere between $10,000 to $20,000.
But if you're in court, there is the option of having the Office of the Children's Lawyer (OCL) — an agency of the provincial government — becoming involved to investigate and then prepare a report to assist the judge in making decisions that impact the children.
If parents are struggling with co-parenting arrangements, one or both of the lawyers will often float the idea of involving the OCL. Of course, a huge selling point is that the province pays for this service so there’s no extra cost to the parties.
Parties and their lawyers then discuss with the judge what type of report is appropriate. For example, if the kids are younger, it could be a Best Interests of the Child report. As children get older, however, a VOC report is more likely. For older children, a lawyer is generally assigned to represent their interests before the court. If, however, a child’s wishes and needs are harder to delineate, a clinician may become involved to gather information from the children, their parents, and others who might play an important role in their lives such as teachers, daycare providers, the family doctor, and extended family members.
It's important to remember that a court order is the only way the OCL will become involved — you can't opt for a VOC unless it is ordered by a judge. In addition, some parents will resist such a court order for the involvement of the OCL because they have concerns that their child favours the other parent. Despite this, the court can request that the OCL become engaged against the wishes of a parent.
The OCL may assign a lawyer to a child — usually with older youth — along with a clinician, such as a social worker or psychologist if the case is more complicated. The lawyers generally don't write reports but show up in court and represent their clients, whereas clinicians may write a detailed report to advise the court of their findings. If a child is relatively young, it's much less about their actual voice because they may not comprehend or express preferences that reflect what is best for them. Instead, an assessment might involve play therapy with a social worker to allow the clinician to assess the child’s life experiences with their parents.
Once a judge makes a court order requesting the involvement of the OCL, both parents are required to complete in-take forms within 14 days. And then you wait. Unfortunately, I've sometimes waited many weeks before hearing back from the OCL, so be prepared for the fact it may put your file on hold for a bit.
Make sure that your child understands that just because the court has requested an assessment doesn't mean there's anything wrong with them or your family. I've learned over the years that kids can react quite emotionally to this type of order and often don't want to do it. Children going through a separation have often learned to guard their feelings closely, so it may take time for an assessor to earn their trust.
It's worth noting that certain behaviours or issues that may have contributed to the end of a marriage, such as an affair, won't factor into the decision-making unless it deals with a person’s ability to parent, or demonstrates that they are unable to put the best interests of a child ahead of their own.
But just because a judge orders a VOC report doesn't necessarily mean the OCL will become involved. As an agency of the provincial government, the OCL can decline to become involved even in the face of a court order requesting it.
The OCL will assess a file based on the in-take forms it receives and may screen for extreme clinical issues such as addiction, severe mental health issues. Similarly, past involvement of the Children's Aid Society or the police may indicate that the situation is not within the scope of their abilities and decline to become involved. That said, a rejection decision can be appealed if you really feel that the OCL can provide the kind of help that you and your children require.
Once OCL finishes its investigation, the assessor will hold a disclosure meeting to convey their findings to both parents and counsel. That's where the rubber hits the road. They don't release a report at the meeting, but both parties meet, usually with their lawyers, and all present get walked through the assessor’s findings and recommendations as to what they feel the child’s living arrangements should be, as well as the decision-making scheme for major decisions in the child’s life.
Assessors will outline the reasons underlying their decisions, and parties then negotiate to see if they can work with the assessor’s recommendations and come to a final agreement in regard to co-parenting. If they can, then the lawyers will draft up a parenting plan and submit it to the court where it gets incorporated into a final order of the court.
A disclosure meeting can be a high-stress moment for many parents — mainly if one parent is unhappy with what the assessor recommends. If parties can't thrash out a parenting plan, the clinician prepares a report as to their findings and recommendations. That report goes to the judge to assist him or her to make an order as to how the parties will co-parent.
If parents feel strongly opposed to an assessor’s recommendations, it can be hard to find common ground. While it’s usually clear what a teenager wants, parents may struggle to understand what a toddler might want. As a result, emotions can run high, and there may be less willingness to negotiate.
Because a neutral assessor prepares a VOC report, it has a fair amount of weight to it. Judges will look deferentially on it, but the assessor is not making the decisions — the judge is. Even a report that is favourable to your position is not a guarantee of an outcome.
If the disclosure meeting doesn’t work and the parties can’t reach a resolution of the co-parenting issues, they head back to court.
At that point, the judge attempts to get the parents to consider the recommendations again and will lean on the assessor's report, and to the extent possible, the voice of the child.
In my experience, judges review the disclosure meeting report thoroughly and are ready to challenge the parties on their positions. You and your former spouse are in the best position to decide what's best for your family, but a judge will make an order for you as a last resort, if necessary.
If you are facing a complex separation and divorce and would like to understand your legal rights and obligations, give us a call at Morgan and Phillips LLP.