What are the rights of minor children in terms of custody in Ontario…

“What are the rights of minor children in terms of custody in Ontario if the child is very unhappy to spend time with one parent?”

There is a big controversy right now with the court about how much a child should be able to
speak in court, or be heard in court. In Ontario, the Children’s Law Reform Act gives judges the
specific right to hear from children in the courtroom, and the Convention on the Rights of the
Child, which is a UN Convention, requires judges to listen to children on matters that will affect
them. Up until about four or five years ago, if you asked a judge in Ontario if they would ever
listen to a child directly, 98% of them would say never, and 95% of lawyers would say it should
never happen – it’s just too traumatic for a child. Now judges are at about 50/50, or may be even
60/40, in favour of speaking to children. Extensive research has been done, and the fact is that
listening to children in the courtroom has worked well in Ohio, New Zealand and Germany.

How much influence does the child have on the decision?

The child has influence in having a point of view before the court that is making a decision, as
opposed to the child deciding what is going to happen. How much influence a child has on the
judge’s decision depends on how old that child is, how well they express their views and whether
the views expressed are clearly the child’s own views or not.

There are people who oppose this sort of involvement of children, largely The Office of the
Children’s Lawyer (in Ontario), which is assigned to represent children in custody/access and
child protection proceedings. The Office of the Children’s Lawyer often says that a child
should not have their day in court because when the Office of the Children’s Lawyer interviews
children, they hear “I think that I should live with my daddy 45% of the time so that it’s a shared
custody arrangement and he doesn’t have to pay child support, and my daddy didn’t tell me to
say that.” Every judge who hears about that happening will say that the parent who influenced
the child to think that way is really bad, and they are not getting. Whether a child has been
manipulated is a big factor in the judge’s decision. Judges also consider the merits of why a
child feels the way they do. Children who come forward with a well reasoned argument about
why they want to live where they do are taken more seriously.

The real exception to this rule is teenagers. Once a child becomes a teenager, all parents have a
hard time telling their teenagers what to do. Judges realize they have almost no hope in telling a
teenager what to do. Teenagers usually “vote with their feet” and there is very little anyone can
do to persuade them one way or another.

John P. Schuman, is a family lawyer at Devry, Smith & Frank, LLP. A Toronto family law firm that devotes extra energy to helping kids in difficult circumstances. They advocated to protect children in several ground breaking court decisions and cases. John can be reached at (416)449-1400.