Separation and divorce seriously affect everyone in the family, including the children. Unfortunately, in our legal system only adults are allowed to start a law suit or sign a settlement. What about the children?
However, children’s views and preferences, if they can be known, are still important factors in divorce and separation cases. There are several ways that the voices of the children can be heard in a separation or divorce court case.
While a 10-year-old doesn’t get to decide which parent he or she should stay with, the judge will usually take the child’s preferences and the reasons behind them into account before making a final decision.
Under the current law, the judge actually has the option of meeting with the children privately to conduct an interview. However, this power is rarely exercised.* (I have personally never heard of a judge in a family law case who has met with the children for this purpose.)
More commonly, judges will make an order to request that the Office of the Children’s Lawyer (OCL) provide services as it deems appropriate, usually called a “referral order.” The OCL is not obligated to provide services upon receiving the referral order. Rather, the OCL is at liberty to determine whether it wishes to become involved or not.
If the OCL decides to provide services, the OCL may appoint a clinical investigator to prepare a report on the OCL’s opinion for the custody and access arrangement, or it may assign a lawyer to represent the children, or both.+
Beyond the potential for OCL involvement, either of the parents may ask the court to order that a custody and access assessment be done. Under the Children’s Law Reform Act,^ the court may appoint a person who has the technical or professional skill to assess and report to the court on the needs of the children and the ability and willingness of the parties to satisfy the needs of the children.
*Children’s Law Reform Act, R.S.O. 1990, s. 64
+Court of Justice Act, R.S.O. 1990, c.C43, ss. 89, 112
^Supra, s. 30
This blog is provided for your reference only and is not a substitute for the law. The law may have changed since the publication of this article. This article is not legal advice and should not be regarded as such.
Publication Ban in Williams’s Divorce Is Set Aside
The divorce involving the notorious convicted serial killer Russell Williams has taken another detour in the Court of Appeal.*
Williams’s wife, identified only as M.E.H., obtained a publication ban and a sealing order by motion from the Superior Court of Justice on April 12, 2011. Various media outlets then intervened and appealed the publication ban.+
On January 24, 2012, the Ontario Court of Appeal set aside the challenged provisions under the publication ban, unless the ban is further ordered by the court within 14 days.
In its reasoning, the Court of Appeal found that the motion judge correctly identified the legal principles relating to publication bans and sealing orders. However, the evidence at bar could not support that the order was necessary to prevent a serious risk to the proper administration of justice. Absent that finding, said the Court of Appeal, “the orders could not have been made under the controlling jurisprudence.”
Under the jurisprudence, a publication ban should only be ordered when:
(a) such an order is necessary in order to prevent a serious risk to the proper administration of justice because reasonably alternative measures will not prevent the risk; and
(b) the salutary effects of the publication ban outweigh the deleterious effects on the rights and interests of the parties and the public, including the effects on the right to free expression, the right of the accused to a fair and public trial, and the efficacy of the administration of justice.^
The Court of Appeal acknowledged the wife’s right to go to court without fear of harm. “Access to the court should not come at the cost of a substantial risk of serious debilitating emotion or physical harm to the party seeking access,” said the Court of Appeal.
However, in the Court of Appeal’s opinion, the evidence provided by the wife wasn’t enough to justify a sealing order. In particular, the Court of Appeal could not find evidence that the media’s access to items covered by the publication ban would in any way negatively affect the wife’s ability to fully participate in the proceeding. In other words, the dangers of harm claimed by the wife had not been substantiated.
*2012 ONCA 0035
+See my previous post, “On Publication Bans and Sealing Orders in Family Law,” August 17, 2011
^R. v. Mentuck, 2001 SCC 76, at para. 32
This blog is provided for your reference only and is not a substitute for the law. The law may have changed since the publication of this article. This article is not legal advice and should not be regarded as such.