When parents are going through a separation, determining parenting arrangements for the child/ren can often be a strong point of contention.
In an ideal world, both parents would be on the same page, and be able to have a frank and loving discussion with their child/ren about what life will look like once the parents are living separately and apart. Depending on the age of the child/ren, it is also likely worth it to receive their feedback and input on what their “ideal parenting schedule” would look like, or even what their major concerns are in the transition to two separate homes, so that these views and preferences can be accommodated moving forward.
However, when parents cannot agree on what the parenting schedule should be, when they have young child/ren, or are receiving mixed or indifferent messages from their child/ren, lawyers, mediator/arbitrators, and Courts may rely on different “tools” to assist in formulating an ideal parenting plan for the child/ren. The most common of these tools, are discussed below.
It is important to keep in mind that in all circumstances, the paramount consideration in family law for determining parenting arrangements for children, is “the best interests of the child/ren”.
1. The Office of the Children’s Lawyer
The Office of the Children’s Lawyer or “OCL” is a publicly funded law office that is affiliated with the Ministry of the Attorney General and is mandated to provide legal services on behalf of children. Their offices provide the services of legal counsel or social workers, and depending on the context, will sometimes offer the participation of both. Learn more about their services.
In the family law context, the OCL provides three (3) main services, which are (1) assigning a lawyer for the child (2) completing a Parenting Assessment or (3) completing a Voice of the Child Report. These three services can also be paid for privately, however, when being provided by the OCL are generally without cost.
To have the OCL involved in your family matter, you will need a Court Order. This means a Judge will have to agree that the OCL is appropriate for your case, based on a variety of factors, inclusive of the conflict present in your case, as well as your financial need to make use of the OCL. After the Court Orders the OCL to be involved, parents need to fill out an intake form. Because the OCL is publicly funded, the OCL has a limited number of cases it can assist with each year, and thus, even with a Court Order, the OCL can choose to decline your case.
If the OCL chooses not to be involved in your case, or is not a proper fit for your family, you can still complete a Parenting Assessment, Voice of the Child Report or retain counsel for your child/ren – they would just have to be paid for privately by you and your co-parent.
2. Parenting Assessments
Parenting Assessments usually involve a social worker or clinician conducting a thorough analysis of your family dynamic to determine what parenting arrangements are in the child/ren’s best interests. These Assessments generally take several months to complete, and involve interviews with the children, parents, extended family, and the child/ren’s service providers, such as teachers, counsellors, doctors, coaches etc.
Assessments are a popular choice when the child/ren are quite young, where there is a great deal of conflict, high-level allegations are being made (such as domestic violence, alcohol abuse etc.) and when the child/ren have special needs.
After an Assessment is complete, the social worker creates a comprehensive report which contain recommendations and an opinion on what parenting arrangements they feel are in the child/ren’s best interests. This Assessment generally assists parties greatly in resolving their parenting dispute or assisting the Court in determining what decision should be made for the child/ren.
3. Voice of the Child Report
The Voice of the Child Report, or “VOC Report”, is a relatively new introduction to parenting disputes in Ontario.
The VOC Report involves a social worker or clinician interviewing the child/ren by asking a series of questions that are used to ascertain the children’s views and preferences. After the completion of generally two (2) interviews per child, the clinician creates a Report to summarize what the child/ren has expressed.
The process of completing a VOC Report is far less involved and lengthy than a Parenting Assessment and serves as an ideal tool for the child/ren who are older and/or mature enough to express and articulate their thoughts and feelings. Also, unlike the Parenting Assessment, the VOC clinician should not make any recommendations or express opinions of their own, as their job is to guide the interview and capture the views and preferences of the child/ren. However, the VOC clinician may express opinions of their own if they have concerns of a clinical nature that arise during the interviews, and they feel such clinical concerns may impact the child/ren’s ability to express themselves authentically, thus impacting the VOC Report.
4. Legal Counsel/Lawyer for the Child
Given the sophisticated nature of both understanding legal rights and obligations, as well as being able to provide instructions to legal counsel, this tool is best used for the older child/ren, or child/ren that can articulate their views and preferences with ease.
As their client is the child/ren, it is the main objective of a child’s lawyer to ensure that the child is being heard, and to advocate for the rights, views and preferences of the child/ren.
Unlike the Parenting Assessment and VOC Report noted above, legal counsel for the child/ren does not generally produce a report that provides the parents with information and insight into the views and preferences of the child/ren, however, legal counsel for the child/ren will work with the parents and convey the child/ren’s views and preferences to arrive at a resolution.
If the parents and the child are unable to come to an acceptable agreement, the child/ren’s lawyer will take a position on the issues on behalf of the children, and convey this position within the Court proceedings as required.
If a child/ren’s lawyer feels that the child is not sophisticated enough to serve as a client, or if they feel clinical issues may be present which means a social worker/clinician is better suited for the case, the lawyer will exercise their discretion in removing themselves from the case and/or working in tandem with a social worker/clinician.
5. Interview between Child and Judge
It is rare to see a Judge directly interview a child, as there are several other tools that a Judge can use to ascertain the views and preferences of a child, as noted above.
However, in certain cases, Judges have opted to interview children when there are time constraints or urgent issues, and the only method of ascertaining the child’s views and preferences in a timely manner is through a direct interview.
Judges can also order that the contents of their interview with the child be sealed, and therefore, the content of the interview itself does not necessarily provide the parents with the benefit of insight into the child’s views and preferences, and as such, the interview is generally used as a measure of last resort and in exceptional circumstances.
It is important to keep in mind that the above-noted tools are used to determine to assist parties, or the Courts, in settling a parenting dispute. Parents are encouraged to use these tools only after exhausting reasonable efforts between themselves to reach a resolution. At the end of the day, parents know their children best, so it is worth putting effort into coming to a parenting plan that works well for the family, rather than bearing the cost, time and expense of having third-party professionals involved in a deeply personal matter. However, these third-party professionals are often necessary and critical to resolving parenting disputes and giving children a voice as they transition to a new phase in their lives.
If you and your co-parent are contemplating separation, are separated or are having issues with your parenting arrangements, our experienced Family Law lawyers can assist you and your family in coming to a resolution that aligns with the best interests of your children. To learn more about how we may assist you and to book a consultation, contact us online or by telephone at (416) 863-0125.
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