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Divorce & Family Law This forum is for discussing any of the legal issues involved in your divorce.

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  #1  
Old 02-23-2018, 02:53 PM
sunnyday123 sunnyday123 is offline
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Default Can children be interviewed by a Judge?

Hello,
Apart from OCL involvement, can children be interviewed by a Judge? This is done in other countries when children reach a specific age.

If OCL refuses the file, what other means do you have to make sure the voice of the child is heard?

If a child who is 11 years old has very good results at school and no behavioral problems, can ex say the child is being alienated and traumatized?
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  #2  
Old 02-23-2018, 04:03 PM
PeacefulMoments PeacefulMoments is offline
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Not sure about speaking to a judge, but I will say that doing well in school and not having behavioural issues is not necessarily an indication of no emotional trauma. I myself was an honour roll student with no behavioural issues while experiencing significant trauma in my home as a young teenager.
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Old 02-23-2018, 05:13 PM
OrleansLawyer OrleansLawyer is offline
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Quote:
If OCL refuses the file, what other means do you have to make sure the voice of the child is heard?
Hire a parenting assessor or psychologist privately.

Quote:
can children be interviewed by a Judge?
Judges do not do this. They are not social workers / experts in speaking to children. The practice was stopped because it produces inaccurate evidence and is bad for the children in general.
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  #4  
Old 02-23-2018, 08:38 PM
kate331 kate331 is offline
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Does the child not want to see the other parent? Is there a reason why??
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  #5  
Old 02-23-2018, 09:56 PM
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Tayken Tayken is offline
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Originally Posted by OrleansLawyer View Post
Judges do not do this. They are not social workers / experts in speaking to children. The practice was stopped because it produces inaccurate evidence and is bad for the children in general.
Correct. It is a past thing that judges no longer do. But, they do meet with children after an order is made to explain it to them sometimes. If you look on CanLII you can find some recent case law on this. I had it indexed but, I can't seem to find it and don't have the time right now to dig it out.

I would not encourage anyone to seek the involvement of the OCL or a Section 30 assessor unless one (or both) of the parents have hard evidence of a mental health issue or the children have significant medical issues. The OCL nor a Section 30 assessor should not be involved in matters unless parents or the children have diagnosed mental health issues.

Why? They are not tools to be used by waring parents to gain leverage with the court. This is often the motivation between highly conflicted parents. An assessor will not speed up the process. They will not side with a parent and often in high conflict situations a judge will not rely upon their reports.

Case on point:

Quote:
[152] A form of joint custody or parallel parenting was proposed by Dr. Sutton. I do not agree that any such order is appropriate.

Source: Brown v. Kagan, 2018 ONSC 564 (CanLII), par. 152, http://canlii.ca/t/hpxxd#par152, retrieved on 2018-02-23.
Here we have one of Toronto's foremost Section 30 private assessors. One of the most expensive and sought after. But, a judge explicitly says "I do not agree that any such order is appropriate."

What? A judge not agreeing with a highly paid and well paid professional? But, these professionals will tell you that judges always agree with their reports. OCL says it all the time. Section 30 assessors do it too.

Quote:
[186] I agree with Dr. Sutton that ultimately a 50-50 split would be in the best interests of Keira. However, at present it is not feasible. That is because of the distance between the parties’ residences.

Source: Brown v. Kagan, 2018 ONSC 564 (CanLII), par. 186, http://canlii.ca/t/hpxxd#par186, retrieved on 2018-02-23.
Again, they don't consider all the evidence when writing their reports. OCL and Section 30 assessors alike fail to understand the complexity and the nuances of mobility of children.

Quote:
[173] As noted, the respondent proposes a residential schedule that will result in the applicant having two overnight visits with Keira every other weekend and two midweek visits. Dr. Sutton proposed, ultimately, a 50/50 arrangement, with a gradual increase in overnight visits.

[174] I do not agree that there should be a gradual in
No doubt the person in this matter thought they had 50-50 in-the-bag with a high-priced custody and access assessment from a well respected professional. This is not to say the professional in question is not good at what he does. On the contrary. But, they are not perfect nor should they be seen as the "absolute solution" for a matter before the court. They advise the court. The common misconception that people make about these professionals is that the judges will follow what they recommend.

The reality is...

Quote:
[52] Dr. Sutton testified that he spent approximately 230 hours on this project. He said it was the second longest project in which he had been engaged. The normal range would be approximately 140-200 hours.

Source: Brown v. Kagan, 2018 ONSC 564 (CanLII), par. 52, http://canlii.ca/t/hpxxd#par52, retrieved on 2018-02-23.
The largest project I suspect that he has worked on is:

Fielding v. Fielding - https://www.canlii.org/en/on/onsc/do...3onsc5102.html

Despite the in-depth analysis from Dr. Sutton the judge ultimately the judge ordered split custody which is not what Dr. Sutton recommended.

Both examples are no fault of the assessment. Assessments are ultimately flawed as a learned contributor to this forum aptly pointed out. This case has dramatically changed how judges review assessments across the board. It has well over 30+ citings in CanLII. It is a behemoth of an order that has sent shock waves through the system of family law in Ontario and changed judicial opinion on expert witnesses.

Ultimately, evidence is what prevails in family law. In 99% of cases, assessment evidence is flawed and only adds to the complexity of trials.

In fact, Justice Pazaratz in 2012, after the matter linked above which he presided over, he set the bar on when an assessment should be executed.

See this thread about the topic on this forum: http://www.ottawadivorce.com/forum/s...ad.php?t=12452

Anyone seeking Section 30 assessments and or the OCL should seriously consider this case law:

Quote:
[19] Assessments are not to be ordered routinely. (Linton, supra).

[20] Assessments should not be ordered routinely as a vehicle to promote settlement of custody disputes. If the legislature had intended such broad utilization of assessments, the legislation would have mandated assessments in all cases. (Linton, supra).

[21] A court should not order an assessment simply to obtain an apparently impartial third party's opinion on what is in a child's best interests. (Stefureak v. Chambers 2004 CarswellOnt 4244 (SCJ).

[22] The use of an assessor's report simply because it might be helpful to the court in dealing with custody and access issues is an overarching use of expert evidence. (Fortier v. Oliver 2003 CarswellOnt 5397 (SCJ)).

[23] Assessments should be limited to cases in which there are clinical issues to be determined, in order that such assessments can provide expert evidence on the appropriate manner to address the emotional and psychological stresses within the family unit in the final determination of custody. (Linton, supra; Archer v. Harries-Jones 2008 ONCJ 544 (CanLII), 2008 CarswellOnt 6624 (OCJ); Menahem v. Menahem 2005 CarswellOnt 4988 (SCJ); Parkins v Burnke 2006 CanLII 24450 (ON SC), 2006 CarswellOnt 4499 (SCJ)).
Remember assessors are flawed. They are humans. Judges apply a different rigor to evidence. Assessors are not triers of facts. Judges are.

To think that an OCL assessment or Section 30 assessment will solve all your problems is WRONG. They create more problems and complexity and should be used in only about 1% of cases. They are being called upon too often these days. If they were supposed to be involved this much, as Justice Pazaratz noted above, legislation would state this!

Good Luck!
Tayken

Last edited by Tayken; 02-23-2018 at 10:04 PM.
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  #6  
Old 02-24-2018, 03:17 PM
denbigh denbigh is offline
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interesting post. excuse my ignornace, I dont know how it works, but doesnt a judge have to order an assessment or a law respresentative for the child? Wouldnt this weed out situations in which it should be used or isnt necessary? I am confused what ocl is. Is this an assessment of the childs situation, or is this a laywer who speaks on behalf of the child?
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Old 02-24-2018, 10:11 PM
youngdad91 youngdad91 is offline
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It was only failed on distance of the parent's. Should he move closer, he may be able to obtain 50-50


Quote:
The applicant has indicated that he is willing to move closer to where the respondent lives. However, he has not yet done so. Rather than simply regard a move by the applicant as a material change in circumstances, which would necessitate a Motion to Change with all its requirements, the best way to handle a possible move on the part of the applicant is for me to determine its effect, provided it occurs within a reasonable period of time. At that point, I will be able to assess whether the move is close enough such that it can realistically give rise to a more equal time-sharing arrangement, and when it should occur.

[200] Accordingly, I will conduct a review of the time-sharing arrangements within one year of the date of my order, upon motion by either party to be arranged through the trial coordinator. After one year, the parties will be left to bring a Motion to Change, if so advised.
I wonder if he has moved closer yet.
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  #8  
Old 02-25-2018, 12:50 AM
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Tayken Tayken is offline
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Originally Posted by youngdad91 View Post
It was only failed on distance of the parent's. Should he move closer, he may be able to obtain 50-50
In family law Mobility of children is one of the most complex issues to address by a court. Yet, I can post hundreds of examples where people tried to use this "evidence" from an "expert" in mobility matters.

Save yourself the 80K++ and just bring evidence to court. 99% of cases do not need experts. Even the ones where they could possibly help (mobility matters) they miss these holes that you could drive a transport truck right through. (as demonstrated in the case above)

Quote:
[1] There is no other area of family law litigation in which the idea of “winner” and “loser” is less applicable than that of mobility cases. It is also true, that even with the very best parents, it is the area where “win-win” solutions can rarely, if ever, be fashioned. Parents involved in a mobility dispute often have to resort to the courts, because even with the best of intentions, and with both parties doing their best to put their child’s interest before their own, they cannot find a solution to the desire of one parent to move with the child, and the other parent vehemently resisting that move.

Source: Van Rassel v. Van Rassel, 2008 CanLII 37217 (ON SC), par. 1, http://canlii.ca/t/1zt7g#par1
As soon as parents live more than 50km apart an "expert" (aka OCL or Section 30) should decline their services and matters should move to trial quickly. Only a judge can determine mobility. Well, only a judge can determine anything is the theme of my point really.

But, to miss mobility like this... Is a huge whopper. But, the OCL and Section 30 assessments do it all the time. They often also forget to investigate the elusive "status quo" properly. (As demonstrated in the case law linked above.)
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