FindingsFootnote 10

British Columbia: Process and Procedures for VCRs

VCRs are publicly-funded and court-ordered in British Columbia. Family justice counsellors provide non-evaluative reports (e.g., VCRs) in addition to evaluative reports (e.g., a parenting assessment). When conducting a VCR, family justice counsellors use a standardized template to document the child’s views and preferences. There is only one interview with the child; no confidentiality is guaranteed to the child and there is no follow-up after the report is completed. There is no minimum or maximum age limit on interviewing children.

As reported by a participant,

Reports under s. 211 of the FLA are by far the most common way to include children’s voice[s]. These are ordered pretty routinely….- if one party requests the report they will typically be ordered even if the other party objects…. They are used to obtain the actual views of children in cases that courts consider high conflict (2-3 pages) but there are significant concerns that these reports, and particularly the "full" view and needs reports are also weaponized, for example by making retaliatory claims of alienation in cases of family violence. The Children’s Lawyer is also used but only when parties are aware of them and when they have availability….”

Hear the Child Society is a non-profit organization that also provides non-evaluative Hear the Child Reports for a fee. These are completed by private lawyers and mental health professionals. They conduct two interviews with the child and do not provide parenting recommendations. The participants noted that there is confusion between a publicly-funded family justice counsellor ordered under s. 211 of the Family Law Act versus a private practitioner who conducts a VCR through Hear the Child Society under the Family Law Act.⁠Footnote 11

Of the 72 British Columbian family law cases identified in the case law review, 88% (63/72) involved a VCR and 8% (8/72) involved a judicial interview. The average age of the child involved was 12 years of age. Cases where children were permitted to have their views heard and hold considerable weight, even if they are not determinative, ranged in age between 9 and 13 years old. A major theme identified in the language used by judges was that they found it important to hear from children and to provide them an opportunity to express their views and for those views to be given due weight in accordance with the age and maturity of the child reflected in Article 12 of the United Nations Conventions of the Rights of the Child.

Alberta: Process and Procedures for VCRs

In Alberta, VCRsFootnote 12 are obtained through Practice Note 7 and Practice Note 8.Footnote 13 VCRs are evaluative as are parenting assessments and other therapeutic interventions in family disputes. Referrals for a VCR are court-ordered, as well as lawyer-referred upon consent to private practitioners. There is great variability between the private practitioners (e.g., lawyers and mental health professionals) who provide VCRs as to the cost of the service, the number of interviews and the process in conducting a VCR.

Of the 25 Albertan family law cases identified in the case law review, 16% (4/25) involved a VCR, 12% (3/25) involved a judicial interview, and 8% (2/25) involved a parenting assessment. The average age of the child involved was 11 years of age. A major theme identified in the language used by the judges was that children have a legal right to participate in a meaningful way in decisions that will impact their future; however, their views are not to be confused with their best interest. Another theme identified was that judges found it to be important to consider the child’s appropriate age, maturity and stage of development, and acknowledge that the child’s views are not determinative in decision-making.

Saskatchewan: Process and Procedures for VCRs

Children’s Voice Reports (i.e., VCRs) are court-ordered and provided by publicly-funded social workers in Saskatchewan. VCRs are typically ordered for children 12 years of age and older. The VCRs consist of two interviews; children are advised that confidentiality is not guaranteed and there is no follow-up with the child after the report is completed. There is a standardized template that social workers complete to report the child’s views and preferences.

Of the 14 Saskatchewan family law cases in the case law review, 2% (3/14) involved a VCR and one family law case involved a judicial interview. The average age of the child involved was 13 years of age, and the ages ranged from 6 to 17 years. A theme identified was that slightly more than half of the cases used language about the child’s age and maturity (8/14; 57%). That is, courts tend to place less weight on the views of children who are 7 years of age or younger. Courts generally give significant weight to older children’s views, such as those aged 16 years, although their views may not be determinative in the court’s decision. Another theme related to the language used by the judges was that children’s views and wishes are viewed as relevant and entitled to respect; however, children do not have the experience, nor context necessary to make such important decisions on their own in terms of their best interests. Therefore, the children’s views do not determine the issues before the Court, nor are the child’s wishes determinative.

Manitoba: Process and Procedures for VCRs

The Manitoba government provides Brief Consultation Reports that have an evaluative component to them in addition to parenting assessments.Footnote 14 Unlike a VCR, Brief Consultation Reports extend beyond interviewing children and include interviews with both parents and children that usually result in a parenting recommendation. Typically, these reports are court-ordered and are provided by publicly-funded social workers.

Of the 10 Manitoban family law cases identified in the case law review, two cases discussed the importance of hearing from children through a Brief Consultation Report. The average age of the child involved was 12 years of age. A major theme identified in the case law was that the child’s age was viewed as important, as in 70% of the cases, judges commented on the child’s age and maturity in relation to their views being heard.

Ontario: Process and Procedures for VCRs

The Office of the Children’s Lawyer in Ontario provides several different publicly-funded services to obtain children’s views and preferences: clinical investigations with parenting recommendations, child legal representation, child legal representation with a clinical assist,Footnote 15 and VCRs.Footnote 16 All the services are court-ordered. A VCR can be used with children over the age of seven years. It is non-evaluative and consist of two interviews with the child. Confidentiality is not guaranteed for the children and there is no follow-up after the VCR is submitted to the court. The Office of the Children’s Lawyer uses a standardized “OCL Intake Form”,⁠Footnote 17 which is to be completed by each parent, as well as a standardized template that outlines the child’s views and preferences.

Of the 113 Ontarian family law cases in the case law review, 21% (24/113) involved a VCR and one involved a judicial interview. The average age of the child involved was 11 years of age. Almost two thirds of the Ontario cases highlighted that children should have a voice, but should not necessarily be given a choice in the case given their age and maturity. Judges often used language focused on the United Nations Conventions on the Rights of the Child (Article 12), Katelynn’s PrincipleFootnote 18, the Divorce Act and the Hague Convention on the Civil Aspects of International Child Abduction (Article 13(b)) when speaking about children’s views.

Quebec: Process and Procedures for VCRs

Only case law was reviewed in Quebec.Footnote 19 Of the 26 Quebec family law cases, the average age of the child involved was 13 years of age. A theme identified in the case law was that the views of children who are 12 years and older should be given greater weight in Court, but that their views should not be determinative in the Court’s decision.

New Brunswick: Process and Procedures for VCRs

There are no publicly-funded services for VCRs in New Brunswick. When they are court-ordered or lawyer-referred, VCRs are typically completed by private practitioners.Footnote 20 As a result, there is variability across the province by practitioner with respect to the cost, number of interviews and process.

Of the 28 New Brunswick family law cases in the case law review, 61% (17/28) involved a VCR and one involved a judicial interview. The average age of the child involved was 10 years of age. In half of the cases, judges commented that the children’s views and wishes were to be considered within the context of their age and maturity. That is, as children get older, their views should receive greater weight.

Nova Scotia: Process and Procedures for VCRs

In Nova Scotia, VCRsFootnote 21 are provided by publicly-funded social workers.Footnote 22 They are court-ordered or lawyer-referred, and consist of two interviews with the child with no confidentiality provided. There is no follow-up after the VCR is completed. The reports are typically non-evaluative, however, evaluative comments about the child and their circumstances can be made. Participants who completed the surveys reported that they provide evaluative comments when conducting some VCRs. There is a standardized template that the social workers use to report the child’s views and preferences.

As one participant stated,

The Voice of the Child is normally used so the Court has an independent representation of the child’s views without requiring the child to testify or prepare evidence. It ensures that the best interests of the child is (sic) protected by individuals (including the Court) asking a question that could be leading to an answer or harmful to the child’s well-being.

Of the 13 Nova Scotian family law cases identified in the case law review, 54% (7/13) involved a VCR. The average age of the child involved was 13 years of age. Almost two thirds of the cases reviewed included comments on the children’s ages and maturity when giving weight to the children’s perspectives. A recurring theme observed in the cases was that greater weight was given to older or more mature children’s perspectives; however, the child’s views are not determinative in the court’s decision. Another theme identified in approximately one third of the cases was the strengths and limitations related to VCRs (5/13; 38%). In the majority of cases, it was perceived that VCRs were a way to respect the children’s views. In other words, the child has voice, but not a choice in the decision-making process.

Prince Edward Island: Process and Procedures for VCRs

In Prince Edward Island, publicly-funded social workers provide parenting assessments and non-evaluative VCRs.Footnote 23 Parents and the child’s legal representative from the Office of the Children’s LawyerFootnote 24 can also request a VCR. The children are typically between 10-13 years of age. VCRs consist of two interviews with the child, with no confidentiality guaranteed and no follow-up with the child once the report is completed and submitted to the court.

There was only one reported case in 2022 that mentioned VCRs. However, interviews with participants anecdotally reported that there has been a significant increase in the number of VCRs being orderedFootnote 25 since the change in the Children’s Law Act, which came into force at the same time as the Divorce Act in March 2021.

Newfoundland & Labrador: Process and Procedures for VCRs

In Newfoundland and Labrador, VCRs are provided by publicly-funded social workers and are non-evaluative. They are court-ordered and only for children over the age of 12 years. They consist of two interviews, but sometimes, depending on the age of the child and family law issues, there can be an additional interview. There is no confidentiality provided to the child and there is no follow-up once the report is completed. There is a standardized template that the social workers complete to report the views and preferences of the child.

Of the six family law cases in the case law review, none specifically identified a VCR report. The average age of the child in the cases was 13 years of age. A similar theme identified in approximately two thirds of the cases was that the child’s age and maturity was an important factor to consider when including the child’s perspective within a case. VCRs were perceived to be independent and often an appropriate and necessary step in determining the views of the child, which should be given serious consideration.

Yukon: Process and Procedures for VCRs

Only family case law was reviewed in the Yukon. Of the three reported family law cases, the average age of the child involved was six years of age. While there were no emerging themes found due to the small sample size, each of the three cases raise themes similar to those raised in other provinces and territories. These themes were: a child’s age and maturity is important when having their views heard; identification of Acts/Laws/Cases that refer to hearing from children; and the importance of child legal representation to allow for a child’s voice to be heard.

Northwest Territories: Process and Procedures for VCRs

The Northwest Territories only provides child legal representation to children in child protection matters and some family law disputes.Footnote 26 The Office of the Children’s Lawyer does not provide VCRs. However, their Policy Manual notes that VCRs will be provided by publicly-funded social workers in the future.

Nunavut: Process and Procedures for VCRs

In Nunavut, legal aid provides a lawyer to obtain the child’s views. There are no VCRs available in this jurisdiction.