30 years ago, it was not uncommon for a Judge to ask to speak to the children directly alone in his office. We are of course speaking in the context of an access or custodial fight.
This went out of favour and was replaced with the children having either independent lawyers representing them (rare and expensive) or a Government Agency called the Office of Children’s Lawyer (“OCL”). The OCL may appoint either a social worker or a lawyer to represent their views. This insulates the children from the judicial process. Recently, the trend has reversed and some judges are indeed asking for an opportunity to speak to the children. In a recent decision by the highly experienced Justice Perkins of the Ontario Superior Court of Justice, he spoke to the 15 and 13 year old children in his office only in the presence of a lawyer from the Office of the Children’s Lawyer. The issue at hand was whether or not the mother could move with the children and the judge was pleased with the opportunity he had to speak with the children directly and the information that he gleaned.
This is not the most common of outcomes, however in the appropriate case, this is a step that can be explored. Justice Perkins interviewed the children in the presence of their lawyer and while the meeting was recorded, the children were told that their views would be kept confidential unless they authorized the judge to release the information to the parents. The judge stressed to the children that they were not the decision makers, but that the responsibility to determine the children’s best interests rested in the hands of the judge. Another discretionary step.