Can my child testify in our family law proceeding?
By Amanda Marsden, Partner, Senior Family & Estate Planning Lawyer, Calgary
Sometimes in high conflict parenting disputes, one of the parents would like the child(ren) to provide evidence to the court. When a client asks if their child will be allowed to testify, the answer is almost always no.
Canadian courts have attempted to keep children out of the disputes of their parents as much as possible. The psychological evidence suggests that pitting a child against a parent (as would often happen if they were to testify) is damaging to their development and sense of stability. If a child were to testify, they would be required to undergo cross examination. The idea of one parent (or their lawyer) being required to cross examine their child is undoubtedly something the Court wants to avoid.
Even in cases where a child is arguably old enough to give evidence and is found competent to testify, it’s within the Court’s jurisdiction to determine that is not in their best interests to do so.
With that being said, children can offer unique insight into their own circumstances, their relationships with their parents and their views on how they would prefer to move forward. This may involve input into decision making or a specific parenting schedule. How does the Court obtain this information without having the child(ren) take the stand? There are several options:
- Appointing counsel for the child(ren) who can present their views to the courts. This is a lawyer who often specializes in this area and can be trusted to obtain an unbiased opinion from the child(ren), without them ever needing to attend a court room. This lawyer can provide input to the court as to what may be in the child(ren)’s best interests, or alternatively, what the child(ren) wants to happen.
- Appointing a parenting expert such as a social worker or psychologist. This type of professional is trained to ask the appropriate questions to ascertain the child(ren)’s unbiased views. The child(ren)’s views are then presented to the court in a report.
- Appointing a parenting expert to conduct a Practice Note 8 Parenting Assessment as to the well-being and best interests of the child(ren). This type of appointment is expensive, and often all encompassing, such that the expert would also be involved in interviewing and assessing the parents and other third parties in the child(ren)’s lives. The nature of this intervention allows the expert to give an opinion as to the child(ren)’s best interests.
- In rare circumstances, a Justice may conduct an interview with the child(ren).
In short, though children are not typically allowed to testify, the Courts have designed alternate processes, whereby their evidence can be provided. To learn more about these different options and what would work for your family law matter, call today for your free 20-minute consultation. The team of Calgary family lawyers at Crossroads Law are ready to help.
