With an aim of creating more constructive, positive outcomes for parties dealing with custody and access issues, Toronto family lawyer Jennifer Samara Shuber is now offering her services in preparing Voice of the Child Reports as a part of her practice.
Shuber, a partner with Basman Smith LLP, says the reports, which were first popularized in British Columbia but are becoming more popular in Ontario, are generally prepared in contested custody and access matters with a goal of presenting the views and preferences of a child or children.
“There are a number of ways presently to get the views and preferences of the child,” Shuber tells AdvocateDaily.com. “Judges will sometimes interview children, and while some people are supportive of that, others will say a one-time interview with a judge is not going to get you the information you need.
“Then there’s a full-blown Custody and Access Assessment, where the child’s views and preferences form just one part of a larger assessment of each party’s parenting capacity, their relationship with the kids, their social supports, their networks, their families, how the kids are doing in the community, school, daycare, and that kind of stuff. It’s a much more comprehensive undertaking.”
The assessments are normally prepared by either the Office of the Children’s Lawyer, which is a division of the Office of the Attorney General, or privately, by a psychologist or a psychiatrist, which can cost families upwards of $15,000, says Shuber.
“With the Office of the Children’s Lawyer, there is no cost to parties, but there must be a judge’s order making the referral and the Office of the Children’s Lawyer has the discretion to accept or reject referrals based on their own internal criteria,” she says.
The idea behind all the processes is to hear from the children – what they feel and what they think, says Shuber.
“What has been happening in B.C. for some time, and what is starting to happen in Ontario, are these Voice of the Child Reports, which are sort of pared-down versions of what an assessment would look like.”
The reports are most often prepared by a lawyer or social worker and involve several meetings with the child or children to establish a relationship, says Shuber, who, along with being a certified specialist in family law, has a master’s degree in social work.
“It isn’t a one-time meeting where you cross-examine them on what they want and where they want to live. I think we all understand that’s not effective and, in fact, could be quite destructive,” she says. “Really, this is about meeting with the kids a number of times over a number of months to develop a relationship with that child or children, in order to get a sense of how they view this conflict, where they fit in, whether they have views and preferences that can be determined and if so, whether those views and preferences are independently held or are they influenced by one parent or another.”
The author of the report will also determine whether a form of parental alienation is taking place, says Shuber.
“The report forms part of the record a judge would consider when making his or her decision,” she says. “It becomes part of the evidence.”
This type of input becomes especially important as children become older, says Shuber. It is essential, however, for the children to understand that they have a say, not the say, on what happens.
“Children get input into the decisions being made, but they are not the decision-makers. I make that very clear to the children I work with,” says Shuber. “They do not get to decide. That fact is a relief to most children, as they do not want the responsibility, and it should not be foisted on them. Rather, their parents must step up and act like adults, which includes making tough decisions about parenting.
“Children are the focus of a custody and access dispute, but we have only recently understood the importance of hearing from them on these issues,” says Shuber. “Particularly as kids get older, they develop more of a voice. In order to craft child-focused arrangements and plans, understanding the child’s views and preferences is essential, so the Voice of the Child Report has been developed. This is all done in the larger context of collecting as much information as possible on the child’s best interests.
“It’s really about getting information from the child’s point of view to make the record before the judge more fulsome – or to help settle cases before they even get to that point.”
Shuber says she’ll be relying on her extensive background in family law when completing the reports, but notes her master’s in social work will also be useful.
“It’s knowing the law, but it’s also understanding the social work and mental health issues that go into this. You can’t put a child on the spot and ask them where they want to live, for example. You have to understand how to connect with a child, how to relate to and interview a child in a way that’s comfortable for them. Development of a trusting relationship is essential to getting accurate information,” she says.
“The Voice of the Child Report is another way of re-focusing the discussion on the children in custody and access cases. It should not simply be about what mom wants or what dad wants. Sometimes parents can lose focus and it becomes about them instead of about the child. They lose sight of the fact that the focus is supposed to be on what is best for this particular child,” says Shuber. “I’m hoping parents will see these reports as something they can run with in terms of creating a more constructive and positive outcome for their family.”
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