Voice of the Child in Court Proceedings

Endnotes

  • [1]  Linda M. Tippett-Leary is a sole practitioner in Halifax specialising in family law and child protection issues. She also routinely acts as litigation guardian and child’s counsel in child protection matters. She has given various Public Legal Education presentations in the area of family law and family law mediation and has extensive experience representing children in family law matters.

  • [2]  Christine D. Davies, Q.C., "Access to Justice for Children – The Voice of the Child in Custody and Access Disputes" (2004) 22 C.F.L.Q. 153 at note 78.

  • [3]  S.N.S. 1990, c.5 as amended.

  • [4]  November 20, 1989, General Assembly Resolution 44/25. See "The Convention on the Rights of the Child", by Jean-François Noël, infra .

  • [5]  See "For the Sake of the Children" Report of the Special Joint Committee on Child Custody and Access (December 1998).

  • [6]  Recommendations 1-3. In particular, recommendation 3.1.

  • [7]  [1996] 2 S.C.R. 27 at p. 49.

  • [8]  R.J. Williams, "If Wishes Were Horses, Then Beggars Would Ride", paper presented at the National Judicial Institute, Family Law Program, Halifax, February 1999, at 4. This article contains an interesting discussion of the means Courts have used historically when dealing with the issue of a child’s views.

  • [9]  Ibid., at 3.

  • [10]  (1996), 151 Sask. R. 168 (Sask. Q.B.).

  • [11]  Bala, Nicholas; Talwar , Victoria , Harris, Joanna, "The Voice of Children in Canadian Family Law Cases", (2005), 24 C.F.L.Q. 221.

  • [12]  See note 34 of Christine D. Davies, Q.C., "Access to Justice for Children – The Voice of the Child in Custody and Access Disputes", supra, note 2.

  • [13]  See Stefureak v. Chambers, 2004 Carswell Ont 4244, 6 R.F.L. (6 th ) 212, at paragraph 69-70. See also Dunn 1983 Carswell 1549 [1983] W.D.F.L. 674 where Judge DeKoning states he simply does not "feel capable" of interviewing a child. L.Q., 1991, c.64, a.34.

  • [14]  2006 NSSC 73.

  • [15]  Ibid., at p. 27.

  • [16]   Ibid., at p. 44.

  • [17]  L.Q. 1991, c.64, 34.

  • [18]  Schirm, Sylvie, "The Child as a Witness: In whose Best Interest?" (paper presented at the National Family Law Program, LaMalbaie , Quebec , July, 2004). Also see R. v. L. (D.O.) 1993 CarswellMan 348, 1993 Carswell Man 24 (S.C.C.) for a comment on a Judge’s role when a child is a witness.

  • [19]  See Bala, Nicholas et al., supra, at note 11.

  • [20]  2005 SKQB 455.

  • [21]  This is a limited assessment, appearing only to gauge the wishes of a child, which appears to be used quite frequently in Saskatchewan . See Stevenson v. Saunders 2005 SKQB, S. (R.C.M.) v. K. (G. M.) 2005 SKQB 296, and Bruce 2005 SKQB. 325, just to name a few.

  • [22]  [1990] 2 S.C.R. 531 A three and one-half year old girl reported to her mother events occurring at a doctor’s appointment that would amount to sexual assault. Evidence at the criminal trial was offered by the mother, after determining, first, that it was necessary to rely on hearsay because the child could not testify and, second, the evidence was reliable.

  • [23]  Supra, note 13.

  • [24]  2005 SKQB 90.

  • [25]  My thanks to Robbi Behr, Program Manager, Regina Social Work, Family Justice Services Branch for providing helpful information regarding programs available for children in Saskatchewan .

  • [26]  2004-FCY-2E prepared by Pauline O’Connor, Independent Policy Researcher and presented to Family, Children and Youth Section Department of Justice Canada.

  • [27]  In addition, Clare E. Burns, the Children’s Lawyer for the Province of Ontario and Dan Goldberg, Senior Counsel, Office of the Children’s Lawyer, prepared a report entitled "Representing Children in Custody & Access Proceedings" for presentation at the National Judicial Institute, Family Law Seminar, Halifax , Nova Scotia, in February 2004. It contains, along with a very interesting discussion of the history of child representation in cases before the Court in Ontario, an analysis of the different ways of placing a child’s view before the Court. In particular, it reviews the legislation and other forms of legal representation across the country. The Summary of Activities for the Child-Centred Family Justice Fund (2003 – 2005), outlines the new family services inventory at the Department of Justice website.

  • [28]  According to my telephone conference with a law office, in NWT in February, 2006.

  • [29]  As relayed in my telephone conference with a member of the Law Society of New Brunswick in February, 2006.

  • [30]  S.N.B. 1980, C. F02.2 as amended by S.N.B. 1996, C. 13 s. 6(4).

  • [31]  Supra, note 27.

  • [32]  Section 37(2) of the Children and Family Services Act, supra, note 3.

  • [33]  As related in our telephone conference with a member of the Law Society of Newfoundland and Labrador in February, 2006.

  • [34]  R.S.N. 1990, C. C-13, as amended by S.N. 1995, C. 27 at ss 71 (2) and 71 (4).

  • [35]  All of the information in this section was obtained through my telephone conference with David Griffiths, Manager of Civil Law, the Legal Society in Vancouver . His assistance is gratefully acknowledged.

  • [36]  2005 ABCA 426.

  • [37]  Supra, note 18.

  • [38]  I am grateful for the assistance of Janet Sigurdson for supplying the information contained in this section. For more information about Family Conciliation, visit this website.

  • [39]  R.S.Y. 2002, C. 31, s. 168.

  • [40]  I am grateful for the assistance of Lana Wickstrom for supplying the information contained in this section.

  • [41]  S.N.W.T. 1997, C. 12 as amended by S.N.W.T. 1998, C. 17 S.N.W.T. 1999.

  • [42]  This information was obtained from a member of the Nunavut bar in a telephone conference which took place in February, 2006.

  • [43]  R.S.O. 1990, C.43, S.89 (3.1).

  • [44]  For more information on the role of the OCL visit this website.

  • [45]  Office of the Children’s Lawyer Policy Statement, Role of Children’s Counsel, published April 3, 1995, revised January 18, 2001.

  • [46]  Supra, note 27 at 14.

  • [47]  Ibid.

  • [48]  (1994) 4 R.F.L. (4th) 169 (1994), 18 O.R. (3d) 753.

  • [49]  2005 ABCA 426.

  • [50]  (1994) 17 Fam. L.R. 537.

  • [51]  See Bala, Nicholas et al., supra, at note 11.

  • [52]  Bala, Nicholas and Bailey, Nicole "Alienation of Children and Enforcing Access: Understanding Problems and Appropriate Responses" (Paper presented at the National Family Law Program, LaMalbaie Bay , Quebec , July 2004).

  • [53]  Supra, note 2. Also see M. (L.K.) v . F. (J.) 2004 ABQB 824.

  • [54]  See also Christine Davies, "Report of the Special Joint Committee on Custody and Access and the Concept of Joint Parenting" (2001) 19 C.F.L.A. 363.

  • [55]  Supra, note 11.

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