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A recent Ontario Court of Appeal decision demonstrates that a judge can interview a child to determine that child’s best interests, but only where an interview is the only practical method of obtaining the child’s opinion in a timely fashion.

What Happened?

The separating parents were never married, but had a child together. In August 2009, the father was ordered to pay $220 in monthly child support. In September 2012, the parties consented to a detailed 17-page final order that provided for joint custody, set out parenting principles, and provided for the appointment of a parenting coordinator.

The mother filed a motion to increase the child support payments. The father brought a motion to alter the child’s primary residence from the mother’s home in Owen Sound, to his apartment in Toronto, and to provide the father with final decision-making authority on all matters regarding the child. After a 7-day trial on these issues, the original trial judge granted the mother’s motion and dismissed the father’s. The father appealed.

The Appeal

Interview with the Child

On appeal, the father argued that the trial judge had erred by conducting a “judicial interview” with the child, who was 10-years-old at the time.

The Court of Appeal disagreed, finding that there had been no error. On the third day of trial, the father had amended his motion to change the father’s residence. The mother had sought an adjournment, which the trial judge had denied on the basis that any additional delay would be against the best interests of the child. The trial judge proposed interviewing the child, which the father consented to.

The Court of Appeal found that:

Given the father’s late amendment, that determining the child’s views in some other fashion would have occasioned delay not in her best interests, and the father’s consent, we reject the father’s contention the trial judge erred in interviewing the child himself.

Material Change in Circumstances

The father also argued that the trial judge had erred by finding that there had been no material change in circumstances that would have justified a variation in custody or primary residency. He claimed that the end of Parenting Coordination, as well as the “friction” between the parents, constituted a change in circumstances.

The Court of Appeal found that the trial judge had applied the correct test in finding that there had been no material change. The 2012 order had contemplated the end of Parenting Coordination and stipulated that the parents should return to the Parenting Coordinator for mediation/arbitration once parenting coordination had expired. The Court of Appeal agreed with the trial judge on the finding that the end of Parenting Coordination was not a material change.

Continued Conflict         

The father argued that where the level of conflict between parents has increased and the impact of that conflict on the child changes, continued conflict should be recognized as a change in circumstances. However, the Court of Appeal did not accept the father’s submission that the trial judge had erred by finding there had not been a change of circumstances in the custody and residency of the child, stating:

In this case, it could not be said the parenting plan had failed as the father had not resorted to the avenues for resolving conflict that the 2012 order provided.

Lessons Learned

A child’s best interests is the guiding force behind family law decisions. Most Canadian federal and provincial legislation allows permits children to participate in custody and access proceedings, although it does not specifically provide for it.

Children’s opinions can assist judges in decision making, and children can either be direct parties to family law proceedings with lawyers acting on their instructions or through lawyers advocating for their best interests and presenting information that may otherwise be overlooked. In this case, the trial judge had directly interviewed the child as it was the most expeditious way of obtaining the information needed.

If you are involved in family law proceedings and have questions about child custody and access, contact the knowledgeable family law lawyers at Gelman & Associates. Our goal is to help you make informed decisions about matters that affect you and your children. With six offices across southern Ontario, we are easily accessible. Our phone lines are open Monday to Friday from 8 AM to 8 PM. Call us at (416) 736-0200 or 1-844-736-0200 or contact us online for an initial consultation.



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