“COVID-19 cases are on the rise in Ontario. Do I really have to facilitate my ex’s access time with our kids?” The amount of COVID-19 cases in Ontario continues to increase. As of April 10th , there are more than 6,200 confirmed cases of the coronavirus in the Province, with the majority of cases in the Greater Toronto Area – Global News Since this pandemic began, the Canadian Government has been urging Canadians to do one thing: stay home. But for many Canadian children with separated parents, this is not practicable, as those families likely have an existing agreement or court order specifying the duration and frequency of each parents’ time with the children. Many separated parents may be tempted to interfere with the existing parenting arrangements amid COVID-19, citing safety concerns as the rationale, but the courts in Ontario have been pointedly clear that this is not appropriate. Worse, if a parent does unilaterally alter the child(ren)’s schedule with the other parent, the Courts have been clear that there may be consequences for that parent once regular court operations resume – Canlii According to Justice Pazaratz of the Ontario Superior Court – Canlii, existing parenting arrangements and schedules should continue in the majority of cases, while potentially making changes to transportation or exchange locations to ensure physical distancing guidelines are followed – Global News If an issue does arise with respect to the existing parenting arrangements, such that it is no longer safe to facilitate parenting-time between your child and your ex, you may meet the test for “urgency”, which would allow your matter to be put before a Judge. In order for your matter to be considered “urgent”, based on the jurisprudence to date in this unprecedented area: Your concern must be immediate, meaning that in no circumstances could it wait for resolution at a later date; Your concern must be serious enough in that it significantly affects the health, safety or economic well-being of you, your ex and/or your children; and Your concern has to be rooted in real evidence. It cannot be speculative or theoretical. If your matter is not urgent, the Courts are encouraging parents, now more than ever, to work together to show flexibility, creativity and common sense — to promote both the physical and emotional well-being of children. Children always need the love, guidance and emotional support of both of their parents, but they need it even more during these unprecedented, troubling and scary times – Canlii If one parent is self-quarantined after travel or possible exposure to the virus, and direct physical contact with his/her child is therefore inappropriate at this time, it is important that parents work together to ensure that a child’s relationship with that parent is not negatively affected in any way. Various communication outlets such as Facetime, Zoom, Skype, etc. can help with that and your willingness to engage your child(ren) in these types of video chats demonstrates your ability to support and encourage your child(ren)’s relationship with their other parent and act in accordance with your child(ren)’s best interests. For more information on these issues, as well as information as to how COVID-19 affects child and spousal support, listen to episodes 45, 46 and 47 of the Ontario Family Law Podcast by John Schuman, Certified Specialist in Family Law and managing partner of the Family Law Group at Devry Smith Frank LLP – Devry Law Podcasts By Fauzan SiddiquiBlog, COVID-19, Family LawApril 13, 2020September 30, 2020
My estranged wife is denying me access to our baby. She refuses to communicate with me and I am yet to meet our new-born child. Is there something I can do? Ontario Family Court judges generally have a very dim impression of parents, mothers or fathers, who deny their children the opportunity to have a relationship with both parents. Section 16(10) of the Divorce Act requires that judges give children of married parents the maximum possible contact with each parent that is consistent with the child’s best interests. Section 20(1) of Ontario’s Children’s Law Reform Act states that, until decided otherwise, parents are equally entitled to custody of a child. A significant exception to this is when one parent leaves the child in the care of the other parent at separation as this action typically connotes that by doing so, the leaving parent gives the other parent temporary full custody of the children. That being said, the foregoing principle may not apply in a situation whereby the separation occurred prior to the child’s birth and the leaving parent was not actually given the opportunity to leave the child. Even for very young children, especially infants, current research says that frequent contact with both parents is ideal to allow the children to form a relationship with their parents and vice versa. When one parent refuses to allow the other parent to have contact with a child, it could in fact become a situation where it is possible to obtain an emergency family court order; however, if deemed possible, parents should first try parenting mediation with a parenting professional, before going to court. The parenting professional can help the parents understand the child needs and help them work out a parenting plan that best suits the child’s needs at each stage of development. If one parent does not agree to mediation, it is still beneficial to suggest this option to the other parent because Ontario family courts prefer parents take a more amicable approach, as opposed to one that is likely to cause conflict. Nonetheless, if a parent is denying a child the opportunity to have a relationship with both parents, it is always advised to seek advice from an experienced legal professional. For assistance with family separation and child access, contact experienced and certified specialist in family law, John P. Schuman of Devry Smith Frank LLP. Contact him directly at 416-446-5080 or email john.schuman@devrylaw.ca “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Family LawMay 28, 2019September 30, 2020
My ex-spouse refuses to amend the schedule and allow me to take our child on vacation. What can I do? Taking the children away on a vacation is a frequent source of conflict after separation, and is the subject of many Family Court motions. The non-travelling parent may be jealous, or may worry that the trip could give the travelling parent the advantage of having a better relationship with the child. Judges, on the other hand, are less concerned with these factors and are instead focused on deciding whether or not the trip is in the child’s best interest. If the parents have lawfully separated or divorced, a Separation Agreement or Divorce Order is likely already in place to stipulate to the custody arrangements. A typical Separation Agreement or Divorce Order contains detailed information pertaining to the precise days and times the children are to spend with each parent. That being said, Judges will generally allow changes to the parenting schedule to allow a child to go on a vacation. What do you do when a parent unreasonably refuses a travel request? Unfortunately, it may be necessary to go to family court if one parent continues to unreasonably refuse to allow the other parent and child to travel. One advantage of going to court were the judge to be sufficiently dissatisfied, the resulting court order may dispense with the need to obtain travel consent in the future. Nevertheless, if the trip is looming, it is best to obtain legal advice specific to your situation. Getting proper advice will give you the best possible chance of the vacation going ahead as planned. For assistance with a divorce or separation, contact certified specialist in family law, John P. Schuman of Devry Smith Frank LLP. He is the partner managing the Family Law Group at DSF, a full service law firm. Contact him directly at 416-446-5080 or email john.schuman@devrylaw.ca “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Family LawMay 17, 2019September 30, 2020
What Happens When Your Child’s School Registration Form Contains False Custody Information? Family and Education lawyer John Schuman was asked the following question: What are the legal penalties for someone who has filled out an Ontario elementary school registration form with false information concerning a court child custody order? John’s Answer: This question is a good one because it touches on the intersection between schools, parents, kids and the law when parents separate. Parents separating can cause a lot of stress and tension for other people as well. First, it is critical to remember that the school, the principal, the teachers, and the school board do not want anything to do with your separation or divorce. If you think any of them are going to “take sides” and support you, then you are wrong. Most school boards have policies that prevent them from becoming involved in disputes between parents. This does not mean that Family Court Judges do not find the thoughts and observations of teachers useful when deciding which parent gets custody. But, nobody wants them involved (I will mention how to get the useful information below). The most important reason why schools will not become involved in disputes between parents is that schools are the kids’ “space.” School is more than just a child’s “workplace.” It is the center of their social lives, it is where they develop an identity independent of their parents, it can be the center of their non-academic activities and, during times of parental conflict, it is often their sanctuary away from that. So, it is very important that fights between parents do not use the school as the battleground. Section 305 of the Ontario Education Act and Ontario Regulation 474/00 give principals the authority to bar any parent from entering school premises because he or she has done anything to upset any pupil. If a principal does that, a Family Court Judge is sure to notice. With that said, it is very important for schools to know what the current custody order says. This helps the school avoid making mistakes that can create tensions between parents or can even allow a parent to abduct a child. It also avoids having the school hand off the child to the wrong parent – or to a parent who is not supposed to visit the child or go to the school. While it is important for schools to get copies of court orders that relate to the school, it is important that parents do not use those orders as weapons. If the school has a copy of a court order that it should not have, or that is no longer valid, parents can do something about it. Section 266(4) of the Education Act allows parents to request in writing that the principal remove any inaccurate information from a student’s record. If the principal does not remove the information, then a School Board superintendent can hold a hearing to determine whether the information should be removed. The Ontario School Record Guideline sets the test for whether a document or information should be removed from a child’s OSR. Any document that is “no longer conducive to the improvement of the instruction of the student” should be removed from a student’s school record. Therefore, a principal should remove any expired, repealed, or irrelevant court order from a student’s record. That should get the court order out. When deciding custody cases, judges need evidence, and they really like the evidence of impartial professionals. The observations of those professionals of the behavior of the parties, and more importantly, how a child is doing, can really influence a judge when deciding custody cases. But, judges do not want educators put in the middle. Section 35 of the Ontario Evidence Act allows judges to admit into evidence any record that a teacher (or other professional) has made “in the ordinary course of business” without having the teacher testify. Those are any records that someone does as part of their job and not for the purposes of any form of litigation (including disputes in Family Court.) So, judges will look at report cards, school attendance records, school IPRC reports, individual education plans, school forms and school emails that are not directly about the custody/access dispute. Those can give the judge a really clear picture of what is going on, how involved each parent is, and whether either parent is being a “problem.” A parent who is being a “problem” or whose actions are having an adverse impact on a child can get into big trouble in family court. Not being supportive of the other parent, acting unilaterally with respect to the children (especially in contravention of a court order) and not putting the children’s needs first are some of the best ways for a parent to lose custody of children It is often possible to get these helpful school records without involving any school personnel directly in the Family Court Fight and, most importantly, without bringing the fight to the child’s school and sanctuary from the parent’s fighting. You can learn a bit more about the family court process by watching this video or listening to these podcasts (iTunes version here). You can get a lot more information about Ontario Family Law issues, including a further explanation of child custody issues and tips to help you and protect your child in and out of court, by downloading this $9.99 e-book for Kindle, Kobo, or iPad/iPhone/Mac or ordering the paperback version. But, to keep out of trouble, it is always best to speak with a good family law lawyer. On school issues, it can also be helpful to get speak to a lawyer who knows about education law. “This article is intended to inform and entertain. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Education Law, Family LawJanuary 31, 2018July 7, 2023
Determining Summer Custody Schedules with Your Child(ren)’s Best Interests in Mind For many separated families with school-aged children, summer can be a challenge. A written agreement or court order that sets out summer access with the children makes the season a lot less challenging, but for many families, such formalities are not in place. With regards to those families without order or agreement in place, the summer access schedule may still be straightforward. Consider, for example, those families who follow the same summer schedule informally every year. However, arranging such a schedule may prove to be difficult for families who are newly separated, or those who negotiate a summer schedule each year to accommodate the varying schedules of the parents and the child(ren). When there is no existing access agreement in place, parents have a lot of freedom in arranging the summer access schedule. Parents are free to negotiate and compromise when planning the schedule, however, they must ensure that the schedule is in accordance with the child(ren)’s best interests. The reason being, if the issue were to ever proceed to court for settlement, the judge will decide what is fair based on the best interests of the child(ren). See CLRA 24. (2) Best interests of child It is important to mention that when a court is considering an access award, the focus is always on the best interests of the child(ren), and not on the interests and rights of the parents. Although parents’ wishes are often at the forefront of a summer access negotiation – as mom or dad may only be allotted a certain week off work for a vacation for instance – it’s important to remember that for the court, these wishes are irrelevant. Rather, the best interests of the children are what the court will examine. For example, will the child(ren)’s best interests be met if they were to travel to Disneyland? For more information on how a judge may go about determining who should be granted custody, please listen to our podcast on this matter. Although it may seem that a vacation is always in a child(ren)’s best interests (after all – who doesn’t love a vacation?) this is not the case for the courts. According to one Canadian Judge, “The best interests of a child are not to be confused with such things as the “benefits” of a vacation.” In this case, the father sought to take his child on a vacation outside the country, and the mother obtained an order which restrained the father from doing so. Ultimately, the court made the final determination in accordance with the child’s best interests, and the father was not permitted to travel with the child. For the court, the evidence did not establish that the children’s best interests would be served by removing them from their home jurisdiction. As a parent, if you are seeking to travel outside the country with your child(ren) for a vacation, it will be necessary for you to obtain a consent to travel from your ex-spouse. If such consent is denied, you may consult John Schuman’s blog post “My Ex Won’t Sign a Travel Consent” to determine how to proceed. In any case, it is best to consult with a family lawyer prior to taking any legal action. To avoid both the cost and uncertainty of court, parents ultimately need to be able to agree on how to divide their child(ren)’s time during the summer. They must do so in a way that is best for their child(ren). Mediation may also be an option for parents who would like to settle their dispute outside of court. To find out more about family mediation services, please see our mediation page. If you are experiencing difficulties with scheduling summer access arrangements with your child(ren), contact Devry Smith Frank LLP’s family lawyer John Schuman today for a consultation, or call our office directly at 416-449-1400. “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Family LawJune 8, 2017June 24, 2020
My Boyfriend Has Been Denied Access to His Son. Can He Fight for More Rights to Him? My boyfriend’s ex-girlfriend had his son in late November 2016. He is unable to see his son often and she won’t allow him to have him alone as she doesn’t think he can care for him. There is no paperwork in place yet but he’s worried she will ruin his life if he does not comply with everything she wants and says. Is there any advice for this situation on how he could get more rights to his son or how he should go about this? Answer by John P. Schuman, C.S. Unfortunately, young mothers refusing to allow their child’s father to be involved in their young child’s life is a very common situation. Young mothers often feel that they need to protect the child and only a mother can provide appropriate care for an infant or young child. That approach is not consistent with the current research in social science and child development. Even at a very young age, children benefit from having both parents actively involved in their lives. Most family court judges recognize this. One parent refusing to allow the other parent to have any contact with a young child is a situation where it is possible to get an emergency family court order. It is very important for children to have frequent, meaningful contact with both parents. That means both parents should be involved in feeding, bathing, and other parenting tasks (not just playing), at a minimum, several times a week. Due to young children’s short memories and perception of time, the frequency of contact is very important – more important than long periods of time. Although young age is not necessarily a reason why a child should not be spending overnights with both parents. What is often best for a young child is to allow that child to develop a secure attachment to both parents through having both parents actively and frequently involved in the child’s care. Denying a child contact with one parent, or exposing the child to a lot of conflicts, especially at a young age, can lead to long term problems. In order to keep tensions and conflict down between parents, because conflict between parents is very harmful to the child, and to provide the best hope for a joint custody situation, it is best for parents to try parenting mediation, with a parenting professional, before going to court. The parenting professional can help the parents understand the children’s needs and help them work out a parenting plan that best suits the child’s needs at each stage of development. If the other parent will never agree to mediation, it is still important to propose it because judges get angry at parents who refuse to try to work out things for the kids without a fight. Before a parent goes to court, it is important for that parent to understand that judges base decisions on what is in the child’s best interest. There are several factors that judges consider when deciding what is in a child’s best interest. Before going to court, it is important for a parent to have evidence that what they want is in the child’s best interest. It is also important for separated parents to understand the difference between different types of parenting arrangements and when each will work best for the child. That will help them come up with the best parenting plan for the child or, if they have to go to court, to know what types of orders the judge will be inclined to make. But, if a parent is not seeing a child at all, or is not having meaningful contact with a child, then that parent should see a family lawyer right away to know your options and how best to ensure the child has the best possible relationship with both parents. You can get a lot more information about Ontario Family Law issues, including a further explanation of child custody and parenting legal issues by downloading this $9.99 e-book for Kindle, Kobo, or iPad/iPhone/Mac or ordering the paperback version. But, to keep out of trouble, it is always best to speak with a good family law lawyer. John Schuman is a Certified Specialist in Family Law. He is the partner managing the Family Law Group at Devry Smith Frank LLP, a full service law firm located near Eglinton and the Don Valley Parkway in Toronto. Learn more about John! Call him at 416-446-5080 or 416-446-5847 or email john.schuman@devrylaw.ca Listen to the Ontario Family Law Podcast! Please note that this is for informational purposes only and does not constitute legal advice to you. Legal advice pertaining to your particular situation can only be provided by a lawyer who has met with you to obtain all pertinent background information necessary to give you a formal legal opinion. For legal advice contact one of our family law lawyers. “This article is intended to inform and entertain. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.” By Fauzan SiddiquiBlog, Family LawFebruary 28, 2017June 18, 2020
Denied Access To Your Child? Here’s What You Need To Know Breaking up, as they say, is hard to do. Where there are children in the equation, the question of a parent’s access to the child(ren) can add substantially to the hardship. All too often, the animosity associated with separation leads one parent to frustrate the other’s access to the child(ren). In the following, we discuss what a parent who is denied access to their child(ren) can do, and provide some context to help make sense of this situation. In a perfect world, parents would put aside their differences and cooperate to ensure both parties play an active role in their children’s lives. One way of doing this involves the parents executing a contract as to custody and access – namely, a “parenting agreement” or “separation agreement.” Such agreements are valid and enforceable when in writing, signed, witnessed and where both parties have received independent legal advice. One helpful resource that can work with families toward reaching an agreement, is a parenting mediator. A mediator acts as a neutral third party who works to facilitate productive communication between parties, with a view to settling issues including access. Mediated resolutions must be voluntarily accepted by both sides. While both come at a price, failing to agree and escalating the conflict can often prove much more costly. If parents cannot come to an agreement without assistance, or if the agreement is not being observed, they often turn to the courts and to legal professionals. This is where the experienced family law practitioners at Devry Smith Frank LLP enter the fray. To be clear, there are circumstances where a parent is justified in denying the other parent access. This will be the case where a parent presents a protection risk to the child(ren) – for example, where an access parent is abusive, does not maintain a safe accommodation for the child(ren), or is intoxicated. However, where access is denied without justification, a parent can seek remedies from the court. In applying any remedy, the courts’ paramount consideration is the “best interests of the child.” The courts will not enforce or approve a parenting agreement, in terms of access or otherwise, unless it accords with that principle. While the “best interests of the child” are not precisely defined, courts must consider specific factors – these include facilitating the child’s access to the other parent.[1] Generally, the courts frown upon parents who obstruct the other parent’s access to their children. They have even taken away custody from such parents. Where a parent is not able to exercise access with their child, and where another parent is preventing the access from taking place, a parent can bring a motion seeking that the court Order the access. In Ontario, the courts have awarded a parent who was denied access the costs incurred in attempting to exercise access. The courts may also award compensatory access, so that the access time denied to a parent will be made up. Alongside a court Order dictating that they will have access, the court will award the party who succeeds at the motion their costs – that is, the losing party will have to pay for a portion or all of the other side’s legal costs. In more severe cases, a parent may disregard even a court order. When a court order for access is not obeyed – “deliberately or willfully or knowingly” – the offending party can be found in contempt under the Family Law Rules (O. Reg. 114/99). A contempt order is sought by motion, and can result in fines, other penalties, or even imprisonment. Again, because the best interests of the child are the primary consideration, the courts are reluctant to criminally charge or even fine a parent. This is an exceptional remedy, meant to convey clearly the importance of obeying court orders. In exceptionally rare circumstances, a parent denied access may also seek an apprehension order. The parent, or the police, are thereby empowered by the court to apprehend the child. It must be emphasized that, given the immense psychological harm a child could be exposed to, a court is extremely unlikely to consider this to be in the best interests of the child(ren). Indeed, such orders are all but unheard of. Instead, a court asked to make this order may give the parent denying access another chance to comply, perhaps under threat of consequences for remaining in contempt of an order. Ultimately, Courts must balance the desire to ensure parents’ access and respect for court orders, with the desire to avoid exacerbating tension and financial trouble within families. Overlaying all other considerations, are the best interests of the child. They therefore tend to gradually raise the stakes, escalating from warnings and compensatory cost awards to the more severe contempt orders where all else fails. When faced with a denial of access, it is important to remain composed and resist taking matters into one’s own hands. Emergency motions are available in certain circumstances. If there is a genuine risk of harm, the police are also available in the immediate term. Longer term solutions, however, will require engaging with the courts. Navigating court processes without assistance can be complex and stressful. If you are facing a denial of access, or any other family law issue, please feel free to contact Devry Smith Frank LLP. ______________________________________________________________________________________________________________________________ [1] Among other factors, the courts consider the ability of those seeking access to the child to act as a parent. An integral part of acting as a parent is the ability to facilitate access to those for whom the child has “love, affection and emotional ties”. In the vast majority of cases, this includes both parents. By Fauzan SiddiquiBlog, Family LawDecember 12, 2016November 14, 2020
Legal advice needed about child custody John Schuman, Toronto Family Law lawyer at Devry Smith Frank LLP, was asked this question just recently: “My ex is trying to get custody of my six year old and I have been the sole support to my child her whole life. Her father has been in and out of the jail and is a drug addict. He claims that he changed but I am not buying it. He is abusive and I have police reports to prove it. I also have papers from children’s aid society saying that he is unfit parent. What should I do?” Based on what you said, it sounds like your ex has an uphill battle to get custody of your child. Judges have specific factors that they have to consider before making an order for custody of a child. Those factors help the judge decide what order is in the “child’s best interest.” You may also want to listen to this podcast that goes over not only how judges decide custody cases, but also what “custody” actually means. However, as the decision comes down to what is best for the child, it is difficult for people who are abusive, or have substance abuse problems, or have who have concerned a children’s aid society to get custody of a child. Access is a different matter. This is for two reasons. First, access can take many forms, occur in different places, can be supervised, or occur in a therapeutic setting, or for limited times. All of these considerations may make it possible for access to be “safe” for the child. Judges won’t order access if doing so may put the child at risk of harm. However, there are only very limited circumstances where the risk of harm cannot be addressed by supervised access. Second, from a psychological and developmental perspective, there is a great benefit to children in knowing who their parents are. Children form a sense of identity by knowing who their parents are – even if they form a sense of identity by deciding that they are not like their parents because they don’t like who their parents are. Children who don’t know their parents do less well psychological because a piece of their identity is missing. So, for the child’s sake, courts do like to try order some access. What children want, or what they think they want, is not determinative of anything in custody and access cases in family court. There can be difficulty where a parent wanders in and out of the child’s life on the parent’s whim. That can be a bad situation because the child does not get to really know the parent, but suffers a loss, or perhaps feels rejected every time the parent disappears. In those cases access may not be a good idea. A child psychologist or social worker may be able to help you and your ex sort out what is best for your child. However, that option is only possible if both parties agree on the professional and agree to participate in good faith to work for the benefit of the children. If the parents can do that, they can come up with much better solutions than a court may order because they can focus on the specifics of the child’s life and needs that a judge may not hear about if the parents do not present their cases carefully and effectively. Child custody cases can be very difficult and there can be a lot at stake for the children. For difficult parenting cases, it is extremely important to speak to a good family lawyer who knows how the law could apply to a specific situation and can help you explore all the options for dealing with the problems. You may also want to pick up a copy of this $20, easy-to-understand book on Ontario Family Law. It explains custody-access law, how judges make custody and access decisions, the court process and other options for working out parenting matters – there are a lot of better options for working out parenting conflicts that result in tailor made solutions that benefit the children more than a court imposed custody order, but court may be necessary in some cases. For more information regarding child custody, access or any other family law related topic, please contact Toronto family lawyer John Schuman at 416-446-5080 By Fauzan SiddiquiBlog, Family LawJuly 9, 2014December 3, 2020
Very distressed child asked for advice in upcoming child custody case My friend’s child asked for advice on a upcoming child custody case. His parents are in family court and have trial in 2 months on child custody and access. He has a children’s lawyer, but afraid to tell her what he wants as he doesn’t want this information to be shared with parents – he is very afraid of their reaction. The lawyer does not keep things in private as promised. The child is in a much distress and wants to talk to a judge, but OCL is against it. The child is turning 13 in few months. I don’t know how to help him, I am very concerned about his state of mind. He is vey stressed and turns it against himself by having a very low view of his worth and his life worth. His OCL unfortunately does not see it and is convinced the child is OK. What would you advise to this child and is there any way I can help? If I talk to his parents he will loose trust in me as well. This is an upsetting situation. However, the perspective on hearing from children is changing in Ontario Family Law. Many judges recognize children have a right to be heard in matters that affect them, provided it is the child who wants to be heard and not a parent trying to get the child to take sides. Technically, a child does not have to be represented by the Office of the Children’s Lawyer. A child can retain a private lawyer to assist him or her. Judges views this with some scepticism unless it is clear the child was not “put up to it” by a parent. This means the child has to contact the lawyer himself, see the lawyer without a parent present and negotiate the retainer for that lawyer. That lawyer can than advice the court and the OCL that he or she is representing the child and the OCL is no longer doing so. The court (and the OCL) will likely want to explore the situation to ensure this was not a parent influencing the child. At some point, the child may have to say that he lost confidence in the OCL lawyer. That may take some fortitude, but so will putting a position before the court on his parent’s divorce. However, a child who does all of that to ensure he is heard by the court, will convince most judges to at least listen. It sounds like you are being “neutral” in this situation, so it would likely be OK for you to assist the child in finding a lawyer. Also, it is important to remember that a child expressing a point of view is NOT determinative of any issue. Even if a judge listens, the child will only be a witness, not the decision-maker. After listening, the judge may make a decision that is different from what the child wanted. However, often just knowing that the judge has heard his point of view is enough to get a child “on board” for any decision. If you want to know the technicalities of the law in relation to courts listening to children, you can see if your local reference library or law library (often in the courthouse) has a copy of Wilson on Children and the Law. There is a long chapter on this issue. The book itself is several hundred dollars to purchase. So, you will need to find a good library to get a copy. There is more about children in the family court process, how to navigate family court, and many other family law issues in this $20 easy-to-understand book on Family Law: Devry Basics Ontario Family Edition. For further information or assistance in regards to child custody, child access or family law, please contact Toronto family lawyer John Schuman. By Fauzan SiddiquiBlog, Family LawApril 8, 2013December 3, 2020
