At what age of the child is it appropriate to have a Voice of the Child report for custody hearings? How much weight will courts give the report?
A Voice of the Child Report is a report completed by an assessor (usually a psychologist) who has had an opportunity to communicate with the child in a custody dispute. The report is used to assist the judge in making a determination of what is in the best interests of the child. It can give a "voice" to the child in a family matter hearing where normally a child would not have a voice or opinion. The United Nations have directed in the United Nations Convention on the Rights of the Child (article 12) that children who are able to formulate an opinion on the matter have a right to express their views freely in legal proceedings. Canada has ratified this Convention and this obligation has been reiterated in many family law decisions, LEG v and AG, 2002 BCSC 1455 at para 11.
Voice of the Child reports are not suitable or advisable in every case; there are time constraints, financial restrictions, and different types of hearings that can make them unsuitable in some cases. However, they can be a helpful tool when used appropriately.
Courts may usually take a child's opinion into account if they are at least over 10 years old, but it will only constitute one relevant factor within the best interest determination; it will certainly not be determinative, Kittelson-Schurr v Schurr, 2005 SKQB 90 at para 11.
A child's opinion is not absolute or determinative, and the weight attached to the child's view will "depend on a number of things including the maturity, experience and age of the child. The last will frequently, but not always, bear some relationship to the child's maturity. However, in all instances the wish of the child must correspond with what is in his or her best interests if it is to be adopted and put into effect", Johns v Hinkson (1996), 151 Sask R 168 at para 9.
Determining what age the courts will take into account children's wishes has been canvassed much more in Saskatchewan and New Brunswick than Alberta courts. Alberta judiciary has stated that at 12 years old, the child's wishes should "definitely be considered" Albers v Albers, 2011 ABQB 456 at para 18, and that a child as young as 10 years old can at times have a voice, (in the context of Hague Hearings) S (J) v M (R), 2013 ABCA 441, but other provinces have examined this topic more closely.
Case law in Saskatchewan has held the child must generally be at least 12 years old before a report will be ordered, Kittelson-Schurr v Schurr, 2005 SKQB 90 at para 12, and that any younger than 12 years of age, the "concern is that he or she may not be sufficiently emotionally or intellectually developed in order to articulate his or her true feelings."
In Feist v Feist 2007 SKQB 376, the Court stated at paragraph 10:
The Court should be loath to make a variation order solely on the expressed wishes of a child of 11 or 12 years of age without some evidence as to why that current expression of interest has been stated. It may well be that the child truly does wish a change. It may also be that the child, as was referred to in the custody and access report, may be simply reflecting the views and therefore the pressures placed on that child by the non-custodial parent. If a court is to make a variation order based solely on the current statement of a child of this age, then is the court required to make that variation every time that child changes his or her mind and writes a different letter.
In D (KR) v K (CK), 2013 NBQB 211 at para 11, the New Brunswick Court accepted that the views and preferences of a 10-year-old child by way of a Voice of the Child report would be taken into consideration, although they would not be definitive on the matter before the Court.
The judge in D (KR) stated at paragraph 140:
Although there is no hard and fast rule with respect to the age of the child at the time of the interview, most judges are of the belief that a child ten years and older, or a mature eight or nine year old, can be interviewed.
Professor Nicholas Bala has also been referenced in judicial decisions pertaining to the voice of the child. In the same case as above, at paragraphs 141-142, the Court referenced his check list that judges should use when assessing Voice of the Child reports. The checklist includes: whether both parents are able to provide adequate care, how clear the wishes are, how informed the desire is, the age and maturity of the child, the strength of the wish, how long the child has maintained the same desire, whether it's practical, and the level of influence of either parent.
In Henderson v Bal, 2014 BCSC 1347 at para 97, the British Columbia Supreme Court gave credence to an 11-year-old boy's views stating:
As an 11 year old, J's wishes cannot be the determining factor. However, they are an important factor here given his age and ability to speak for himself and absent any reason to be concerned that his needs cannot be met by both parents.
Voice of the Child Reports are to only be one relevant factor within the larger best interests analysis in family law hearings. Deciding whether the report should be given more or less weight is fact-driven and discretionary, but will depend on the age of children, the credibility and professional qualifications of the assessor, and the type of hearing.