In the last issue, we discussed the importance of including a child’s voice in custody and access disputes. In this issue, we will discuss some of the potential ways that this can occur.
Generally, a judge will not allow a child to testify in court or to swear an affidavit, however, there is technically no rule preventing it. There are rare situations where a judge has met with a child or allowed them to testify in a trial but this is extremely rare because it is generally viewed as detrimental to the child to involve them directly in a custody dispute.
The best way to determine what a child’s true wishes are is usually through a neutral third party. The third party meets with the child (often in both home environments) and will write a report summarising their wishes. Depending on the level and type of assessment, the assessor may also interpret why the child is saying what they are saying. If the custody dispute goes to trial, the assessor who prepared the report would attend trial and could be examined by the lawyers for each parent.
In Saskatchewan, a judge may order that the assessment be paid for by the government, depending on the circumstances. In Alberta, the government does not bear the costs (except in child protection situations) and the assessments can be fairly expensive depending on the nature and type of assessment.
Where the cost of an assessment is prohibitive, it may be an option to subpoena the child’s counsellor (if they have one) to testify in a trial. If the counsellor is not a registered psychologist, they can only testify to what the child is saying and cannot make any comments about the reasons for what they are saying.
It is also possible for a child to have their own lawyer who participates in the legal proceedings. While this is rare, it is always an option. Generally, the parents are required to pay the legal fees for the child’s lawyer unless the child qualifies for Legal Aid and there is a valid reason for the child to require their own lawyer.