Counsel for the father determined that it was necessary to put the views of the child before the court; this was a likely a prudent decision, for two reasons. Firstly, as the judge observed:
" The parties give conflicting affidavit evidence about the incidents of [the child] running away or refusing to go with his mother at the designated transfer time. The mother says the father has actively encouraged [the child's] conduct, while the father says he has tried unsuccessfully to persuade [the child] to return to his mother’s home and on at least one occasion has driven him back. The police were involved in one of these incidents after [the child] had been reported missing."
Secondly, s. 37(2)(b) of the Family Law Act requires the court to consider the child's views unless it would be inappropriate do so. In order to present the child's views, the lawyer arranged for the child to meet with an independent lawyer to make an affidavit.
This too was arguably prudent, as the evidence presented at applications like this is almost always given through affidavits and because having a psychologist update the needs of the child report presented at trial can be costly and take an inordinate amount of time to complete. The court, however, took a different view:
" Counsel for the respondent filed an affidavit from [the child] that was prepared by and sworn in front of another lawyer. I made it clear at the hearing that I considered the creation of that affidavit to be highly inappropriate and I have not read it. ...
" Although it is often important to make the court aware of the child’s views, I consider the least satisfactory method of doing that to be an affidavit drawn by a lawyer to whom the child has been taken by one parent without the knowledge of the other. The creation of such an affidavit draws the child deeply into the hostilities between the parents and there is a high risk of influence and manipulation."I share the court's concerns. As I put it in a 2012 article in the Canadian Bar Association's journal The Family Way, "Thoughts on the drawing of children's affidavits," the strategy of presenting a child's wishes through an affidavit can be "problematic" (citations omitted):
"A child swearing an affidavit in the course of litigation between his or her parents becomes involved in that litigation. The decision to elicit the child's affidavit must not be made lightly; as the [Manitoba Court of Appeal] commented in Jay v. Jay, 'it can never be in the best interests of children to be placed in a position where they become a part of the adversarial dispute between parents'."Although there are times when there is no reasonable alternative to an affidavit, I concluded the article by cautioning that:
"...merely soliciting the affidavit, whether it's used in court or not, involves the child in the conflict between his or her parents and is fraught with peril as a result. There are other means of eliciting children's views and placing them before the court, including views of the child reports and judicial interviews, all of which are discussed in detail in L.E.G. v. A.G., and in my view the appropriateness of these alternatives should be considered carefully before the decision to obtain a child’s sworn statement is made."Despite its comments about the child's affidavit, the court ultimately honoured its obligation to receive the views of the child, and it did so through a judicial interview:
" While declining to read his affidavit, I did take the step of interviewing [the child] in my chambers, in the absence of the parties and counsel. I was impressed by his level of maturity. He appears to have a strong bond with his father that he does not have with his mother. He did not appear to have had been coached, although that is a difficult judgment to make with certainty."
Of course, not all judges feel comfortable interviewing children some feel themselves unqualified, others worry about inadvertently doing harm to the child, and others are concerned about evidentiary issues and certain other legal niceties involving the principles of fundamental justice and the decision-making process and you should not count on a judge being as willing to speak to the children as Mr. Justice Brown was in this case. The best alternative, I think, would be to arrange for the child to talk to someone else, an independent and trained third party, for a views of the child report; non-evaluative reports can be obtained quickly and at reasonable price from people including the members of the BC Hear the Child Society.