BACKGROUND

The parties had a final parenting order (“the Order”) which provided for a review of their children’s residential arrangement in the spring of 2022, to be concluded before the academic year started. The Order set out a specific purpose for the review – whether an expansion of the father’s parenting time was in the children’s best interests.

The parties had joint decision-making responsibility and a residential arrangement where the children were with their parents equally during the holidays. However, the Applicant father’s parenting time was more limited during the school year. The Applicant father argued that the children should be with both parents equally during the school year.

To ascertain the views and preferences of the children, which is one factor courts consider when determining the best interests of children, the Applicant father sought an order for a Voice of the Child Report (“VCR”). The VCR would be for both his children, who were 8 and 6 years old. The Respondent mother objected to a VCR because she was concerned that the children were being influenced by their father. Essentially, the Respondent mother questioned the independence of the children’s statements.

The Applicant father brought a motion in writing under Rule 14(10) of the Family Law Rules to obtain a VCR. However, the Respondent mother argued that the motion is not procedural in nature, and as such, should be argued orally.

ISSUES

1. Should this be a written or oral motion?
2. What is the best way to ascertain the children’s views and preferences?
3. Should a VCR be allowed?

ANALYSIS

1. Should this be a written or oral motion?

Rule 2 of the Family Law Rules requires an efficient allocation of court resources. Further, the Court determined that there would be a significant delay if the motion was to be heard orally, given the court’s current scheduling challenges. The judge also noted that any delay in proceedings would likely not be in the children’s best interests.

Thus, the Court allowed for the motion to proceed in writing.

2. What is the best way to ascertain the children’s views and preferences?

Section 16(3)(e) of Canada’s Divorce Act requires courts to consider the children’s views and preferences, as part of the “best interests of the child” analysis. The Court listed different ways courts can obtain this evidence, including:

1. A parenting assessment
2. A VCR
3. The child(ren)’s direct testimony in court
4. Judicial interviews
5. Hearsay statements made by the child(ren) to their parent(s) or other witnesses, etc.

The Court determined that a parenting assessment would not be a good option. This is because the Court opined that the issue in this case was too narrow in scope to require such an extensive assessment, which would take too much time and require court resources.

The judge then went on to note that a VCR is the most direct way for the court to receive evidence of the children’s views and preferences other than testifying in court or through a judicial interview. Further, a VCR allows the child to be interviewed by someone who is trained in interviewing children.

3. Should a VCR be Allowed?

The Court determined that the Respondent mother’s potential concern about the independence of the children’s statements does not automatically result in a refusal to ascertain their views and preferences. Rather, her concern is only one factor to consider.

Further, the Court noted that the Applicant father took prompt steps to seek the Respondent mother’s consent to a VCR. He also proposed to pay for the VCR report on his own to avoid any possible delays if the report is made through the OCL. Finally, the Applicant father provided the name of four (4) qualified mental health professionals, which enhanced both parties’ choice of which one would interview the children.

The Court noted that the Office of the Children’s Lawyer (“OCL”) does not have hard age guidelines for VCR reports. This is because courts understand that every child is unique, including their maturity level. While the judge was concerned that the 6-year-old child is too young to interview, she still allowed the child to be interviewed by the Applicant father’s chosen mental health professional. This is because the judge determined that should the professional find the 6-year-old child to immature to convey her views and preferences in a meaningful way, then the professional may stop the interview or note those concerns in the report.

CONCLUSION

The Court allowed the motion to proceed in writing. The Applicant father’s chosen mental health professional was permitted to interview both children and prepare a VCR.