Listening to children in custody disputes
NICHOLAS
BALA
&RACHEL
BIRNBAUM
Concerns about the vulnerability of children and questions
about their capacity to make
decisions have resulted in parents and professionals failing to
involve children in legal processes that profoundly affect
their futures. But judges are
starting to recognize that children have the right to be heard in
family courts: see, for example,
B.J.G. v. D.L.G., [2010] Y.J. No.
119. As children are becoming
more involved in family justice
processes, it is important to consider their views about how they
should be heard.
As part of a broader project of
research on children’s participa-
tion in the justice system, we
conducted a study of children
involved in custody disputes in
Ontario and Ohio who had been
represented by a lawyer, met
with a mental health profes-
sional as part of an assessment
or been interviewed by a judge.
We found that many children
want to be heard, and they want
a say in how they are to be
involved in the legal process, but
few want to make the decisions
about their futures.
Comparative perspectives
In Ontario, the policy of the
Office of the Children’s Lawyer
requires lawyers for children to
advocate a position based on
counsel’s view of the child’s
interests. In an earlier published
study, we found that children in
Ontario are often confused
about the role that their lawyer
plays or concerned that the law-
yer is not advocating based solely
on their wishes.
Children’s perceptions
We interviewed 29 children
between the ages of seven and 17
See Children Page 16
Appeal court reinstates
grandparents’ access rights
DONALEE MOULTON HALIFAX
The Nova Scotia Court of
Appeal has overturned contempt charges against two
grandparents and reinstated
their access to their grandchildren in a decision that sends an
important message to lawyers
across the country.
In the case before the appeal
court, a contempt order had been
issued against two grandparents
when their twin grandchildren
arrived at their home and did not
return to their mother’s home.
The grandparents were also
denied further access. The appeal
court, however, concluded that
access had not been breached
and no contempt order should
have been issued.
“[The Chambers judge] found
that failure of the children to be
in the custody of their mother in
accordance with the Consent
Order equated to contempt on
the part of the [grandparents].
Again, with respect, this is an
error in principle and is not suf-
ficient for a finding of contempt,”
Justice David Farrar wrote, citing
MacKenzie v. MacKenzie [1984]
N.S.J. No. 9.
