Speaker's Corner: Children hurt in divorce process

In litigation where custody or access to children is contested, courts are directed to canvass the views of the affected children, at least to the extent that the views can be ascertained. There are various means by which the voice of the child can be solicited. Each way has its relative advantages and disadvantages, but there are good reasons to proceed cautiously in this regard.

The process of asking children their opinions creates the risk of triangulating the child further into an inter-parental dispute, and it can potentially create or contribute to an alliance of one parent and child against the other parent or against other children.

Many studies and publications, including a study of 1,000 families published by the Family Law Section of the American Bar Association, suggest that parental lobbying and manipulation of children in custody disputes is a very common occurrence.

Canadian provinces, through their legislation and jurisprudence and procedural practices, have recognized many ways of enabling the voice of the child to be taken into account by the courts. 

This can include a judicial interview, a custody/access forensic assessment, indirect testimony through a children’s therapist, parents or others or through counsel for the child. 

However, in my opinion, the potentially most damaging option of all the methods is appointing counsel for a child.

Since the Strobridge decision of the Ontario Court of Appeal in 1994, it is clear that the role of counsel for a child is to be an advocate and not a guardian acting in the child’s best interests. This creates a difficult dynamic where children are elevated almost to the position of parties in their parents’ litigation, often becoming overempowered and triangulated into their parents’ disputes, with the result that the child’s relationship with one parent is damaged. 

It is generally understood that counsel for a child cannot advance evidence based on his or her own interviews of the child. Further, because of the advocate role, the file of children’s counsel is not available to be reviewed by the parents. Interviewing skills and practices of children’s lawyers can, therefore, not be tested. Developing understanding of neuroscience suggests a substantial concern about the suggestibility of children, resulting from the parents’ actions or even by the very existence of counsel representing them in their parents’ dispute.

Through the appointment of counsel, a process meant to support a balanced inquiry into children’s needs and the ability and willingness of parents to meet those needs often gets diverted. Instead, it turns into a focus on the child’s wants, as opposed to the child’s needs.

While a child’s counsel may sometimes be assisted by the allocation of a social worker from a panel of eligible referrals, there is no ability to interview the practitioner for experience, potential biases and their approaches to the services to be provided. The file of the social worker assist is generally not provided prior to the children’s lawyer taking a trial position in the case and often only in the couple of weeks leading up to the trial itself. Disclosure from various third-party sources is often only provided to the assisting clinician and not to the parties themselves until close to trial.

While there are numerous published standards and expert texts (such as from psychiatry, psychology and social work regulators and organizations such as AFCC) about how to conduct forensic child custody/access assessments, there are no such standards generally practiced and consistently applied for the children’s counsel role.

In many situations, parents are told either by children’s counsel or by the clinical assist that records, documents and other materials they provide will not be read and that a list of collateral sources to be contacted for interviews will not be used or used only in part.

The experience of many parents in dealing with counsel for their own children who may be taking either an unknown position or position adverse in interest to them is generally quite upsetting and unfavourable.
These parents tell me they don’t feel heard by this process.

In cases where children are showing unhealthy levels of alignment or enmeshment with one parent or rejection of the other parent, the practice of vetting the independence of children’s views and preferences is again without consistent standards and training. Children’s counsel may not have a robust and up-to-date understanding of the extent of children’s suggestibility and risk of manipulation in the course of a contested custody dispute. It is incumbent upon children’s counsel to express to the court whether, in their view, the children’s statements are reliable. However, practices in this regard lack consistency.

In the more extreme cases of family dysfunction, issues arise as to whether counsel can actually assess whether the child has sufficient capacity to instruct counsel on issues involving the child’s parents. A child can be competent in many domains but not competent to give independent instructions to counsel on issues involving the parents’ litigation.

A child’s strong preference for one parent may actually be a function of an unhealthy enmeshment or parentification (role-reversal) relationship, rather than a healthy relationship. Psychologists and psychiatrists would generally be much more cognizant of this dynamic than an attorney might be.

The appointment of counsel for children and giving children a seat at the table of their own parents’ divorce triangulates them as opposed to insulating them from the effect of divorce. There are better methods to determine children’s needs and an understanding of their parents’ ability and willingness to meet those needs.

Brian Ludmer is a family law and business law practitioner in Toronto.

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