08 October 2014

Children's Affidavits: Procedures, Cautions and Concerns

I was retained a few years ago to draft the affidavit of a fourteen-year-old girl for use by her father in an application to vary her parenting schedule. The child was bright, wanted to have her say and was aware of the probable impact of her affidavit on her relationship with her mother. The nature of the child's evidence made the experience unusually moving, and caused me to ruminate on the issue of children's affidavits; this brief note summarizes some of my thoughts.

The affidavit of a child can occasionally be helpful to your client's case. As the British Columbia Supreme Court put it in the 2012 case of L.E.G. v A.G., "a child's wishes can be a very significant consideration in a custody case." This strategy, however, can be highly problematic, and the difficulties therefore lie in making the decision to obtain the affidavit, and, having made that decision, in actually obtaining the affidavit.

I. Cautionary Considerations

A child swearing an affidavit in the course of litigation between his or her parents becomes involved in that litigation. The decision to obtain the child's affidavit must not be made lightly; as the Manitoba Court of Appeal said in a 1978 case called 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." I agree.
Giving an affidavit forces the child to take a position.
Although children, particularly older children, may form some degree of alignment with a parent following separation, many children manage the stress of their parents' separation by remaining noncommittal or adopting a flexible approach to the truth, providing each parent with information tailored in varying degrees to what the parent wants to hear.
Dad: "I made your favourite pizza, sausage and pepperoni!"
Child: "Awesome, my favourite! Your pizza's the best." 
Mum: "How was the dinner your dad made last night?"
Child: "Disgusting. I hate pepperoni."
Giving evidence in an affidavit forces the child to present a single statement of events and preferences. This may rob the child of a valuable coping strategy and exacerbate the stress of moving between homes.
Giving an affidavit increases the possibility of the child forming an alignment or choosing sides.
A child's evidence will inevitably favour one parent's perspective over the other. Depending on the seriousness of the evidence, giving an affidavit may entrench negative feelings and damage the child's relationship with the non-favoured parent, fostering a sense of allegiance toward the favoured parent and increasing the likelihood of estrangement from the other parent. This can be particularly problematic where the child's relationship with the non-favoured parent is already fragile or the seeds of alignment are already present.

Making matters worse, affidavits create a permanent record of the child's statements. Once the child’s evidence is written down, it's there for all time to be worried over, reread and fretted about. Depending on the nature of the child’s evidence, the affidavit may damage the child's the relationship with the non-favoured parent well into the future and significantly impede reconciliation.
Giving an affidavit exposes the child to the possibility of a further role in the litigation.
Under s. 10 of the Canada Evidence Act and the provisions of most provincial evidence acts, a person preparing a written statement can be cross-examined on his or her affidavit. The potential subject matter of such examinations is broad and would include not only the issues addressed in the affidavit, but the child's truthfulness and credibility; the circumstances under which the affidavit was elicited and prepared; and the extent of the client's involvement in obtaining the affidavit and influence over its content.
Taking an affidavit exposes the drafting lawyer to the possibility of a role in the litigation.
Legitimate areas of enquiry at trial will reasonably include the circumstances under which the drafting lawyer came to see the child, the information provided to the lawyer, and the extent to which the content of the affidavit had its origin in the child’s mind versus another source. The drafting lawyer will be the obvious source of information.

In my view, the child isn't the drafting lawyer's client, the client is the person retaining the lawyers' services, and whatever privilege is to be had likely extends to the lawyer's communication with that party and counsel on the party's behalf, but not to his or her communication with the child.

II. The Canada Evidence Act

The provisions of the Canada Evidence Act relevant to children's affidavits are ss. 16 and 16.1, and the provisions of these sections are instructive to both the lawyer considering obtaining the affidavit of a child and the lawyer retained to prepare one. In essence, children who are fourteen and older are presumed to be competent to give evidence, including by affidavit, in the manner of adult witnesses. Counsel seeking to have the affidavit of such a child excluded must be prepared to challenge the mental capacity of the child; I cannot imagine many children who would be receptive to this line of enquiry.

Children younger than fourteen are competent to give evidence as long as they can understand and answer questions, however they must give their evidence on promising to tell the truth, not upon oath or affirmation.

III. Choosing the Drafter

Prudence suggests that the drafting lawyer be someone other than the lawyer seeking to obtain the affidavit, for two reasons. Firstly, the lawyer seeking the affidavit will want to minimize the perception of the client's influence in obtaining the affidavit; see for example the excoriating comments of the British Columbia Provincial Court in the 2009 case of Director of Child Family and Community Service v. T.T. Secondly, the lawyer seeking the affidavit will want to minimize the likelihood of becoming a witness in his or her own trial, explaining how he or she assessed the child's competence to give evidence and his or her role in preparing the child’s affidavit; there is no privilege in the relationship between counsel and witness.

The T.T. case, by the way, is well worth a read.

IV. Deciding to Obtain the Affidavit

Despite the indulgent approach of the Canada Evidence Act toward the receipt of children's evidence, the lawyer seeking the affidavit will want to ensure that the child's affidavit will be useful to the client and advance the client's case before taking any further steps. If the proposed affidavit will serve neither purpose, stop.

The evidence the lawyer hopes to obtain should be relevant, critical to the case, concise, clear and unambiguous, and capable of interpretation without reference to other materials. Is the child likely able to deliver?
Consider the age and maturity of the child.
Will the child be able to express him- or herself to drafting counsel? Is the child capable of recalling and describing events in a comprehensible, ordered manner?
Consider the child's ability to express a preference.
Is the child's sense of self sufficiently developed to form an opinion? To what extent is the child likely to have formed his or her opinions through independent reasoning? The judge in M.E.S. v D.A.S., a 2001 case of the Alberta Court of Queen's Bench, had this to say on the subject:
"In the case at bar, the two children's affidavits in this matter are clearly drafted by the husband in his usual offensive manner. The many points made in the two children's affidavits contain the classic pattern and trademark of the husband's voluminous other writings in this file. 
"To allow these two affidavits in would countenance yet another abuse of the court process by the husband. Effectively, entering the affidavits would be tantamount to allowing the husband to advance and advocate his case further in his own words under the guise of and cloak of his children's reflections."
The court made comments to a similar effect in Hackett v Leung, a 2010 case of the Ontario Superior Court of Justice:
"[The child's affidavit] was filed by the mother in these proceedings. Based on the submissions that I have received, I am satisfied that the Affidavit was not written at the request of [the child] for the purposes of her seeking to be heard independently. Rather, the Affidavit was sought by her mother, for her mother's purposes, and to support her mother's position. Clearly, this pits this child against her father in a public forum. In my view, it exhibits poor judgment and selfishness on the part of the mother, and is a clear instance of the mother putting her own self-interests ahead of her daughter. In my view, it is inappropriate, in the extreme, to involve [the child] in this conflict in this way."
These are not the sort of conclusions you will want the court to reach.
Consider the nature of the evidence you would like to obtain relative to the position you will be arguing.
Will the child's affidavit actually add something to your case? Is the evidence you are hoping to obtain essential? If the answer to both questions is no, stop.
Consider the nature of the evidence you would like to obtain relative to the child.
Will the child be comfortable discussing the subjects about which you are hoping to obtain evidence? Will the child be comfortable expressing an opinion? In part these concerns hark back to my earlier comments about alignment (imagine, for example, the likely consequences of asking a child to describe an episode of physical conflict between his or her parents!); in part, it is a matter of being sensitive to the child's comfort level and the degree of opprobrium attached to the subject matter the child is being asked to recount.
Consider the child's willingness to provide an affidavit.
Is the child interested in expressing his or views to the court? Does the child want to provide an affidavit? If the child demonstrates any reluctance to give a statement, the lawyer seeking the affidavit should either pull the pin on the project or, at the very least, advise drafting counsel of the child's reluctance as an issue to for him or her explore. Some children are almost chomping at the bit to finally have their say in the dispute between their parents; others, however, are reluctant to enter the fray.

V. Drafting Children's Affidavits

In my view, drafting counsel is free to accept or reject a retainer to draw a child's affidavit as he or she wishes. Whether the parents are joint custodians under the Divorce Act, or mutual guardians under the Family Law Act, is, I think, irrelevant to the lawyer's decision; there is no property in a witness and the making of an affidavit is not a therapeutic endeavour for which parental consent is necessary.

Assuming that the lawyer is prepared to accept the retainer, the lawyer should perform a conflict check in respect of both parents and obtain the following information:
  1. the age of the child;
  2. the existence of any verbal, linguistic, emotional or mental impediments which might affect the child's capacity to express him- or herself;
  3. any deadlines by which the affidavit must be prepared;
  4. any particular issues which the affidavit should address; and,
  5. the child's probable attitude to preparing the affidavit.
Arrangements should then be made for the child to be brought to the lawyer's office.
Assess the child's basic competence.
A brief conversation with the child should suffice to satisfy the lawyer that the child has the emotional and intellectual maturity to give evidence. Bear in mind that the lawyer is not conducting a psychiatric competence assessment; the lawyer's standard of assessment is his or her own opinion and comfort level, not that of a mental health professional.

Easy ways to open the conversation for drafting lawyers include explaining your role, how you expect the meeting to unfold, and asking basic questions about the child's age, school, extracurricular activities and so forth. If the child understands the questions you are asking and provides you with intelligible, relevant answers, you have established the competence of a child under fourteen.
Confirm that the child wants to make an affidavit and that he or she understands the difference between telling the truth and telling a lie.
The child will be aware that his or her parents are in court. The drafting lawyer should confirm the child's understanding and explain the purpose of the meeting by saying something to the effect of "the judge would like to know how things are for you and what you think about things." This is neutral, true and doesn't place responsibility for the meeting on either parent.

The lawyer should explain that one way of giving telling the court what you think is to write down what you want to say, and that these written statements are called affidavits. Adjusting for the age of the child, the lawyer should: say something to the effect that when people make affidavits they have to tell the truth; ask whether the child understands the difference between telling the truth and telling a lie; and, explain that sometimes there are punishments when someone lies in court.

Children who are younger that fourteen should be asked if they will promise to tell the truth. Child who are fourteen and older need to understand the difference between affirming and swearing to the truthfulness of their statements.

The lawyer should emphasize to the child that if he or she is prepared to continue, the lawyer will be writing an affidavit based on what the child has said, and that the lawyer will ask the child to read the affidavit when it's done to make sure that the lawyer has gotten everything exactly right and just the way the child wants it. The lawyer should make sure that the child understands that it's not just the judge but also his or her parents who will be reading the affidavit, and ask the child to confirm that he or she wants to continue and make the affidavit.
Prepare the content of the affidavit by asking open-ended questions and using the child's own language to the maximum extent possible.
Asking simple questions about where the child goes to school, grade level and sports activities is an easy way of getting into the flow of the affidavit and ease into more difficult questions about the child's parenting schedule and so forth. The drafting lawyer should avoid making a beeline toward the object of the affidavit; this will likely be the most difficult part of the affidavit for the child. The lawyer should head toward his or her goal gradually, asking questions on subjects that get slowly closer to the evidence for which the affidavit is sought. It is important to preserve the integrity of the child’s evidence by asking open-ended questions that do not suggest an answer; most children can be prompted to keep talking and give additional information simply by asking "and then what happened?"

It's also important to remember that the evidence the lawyer is soliciting is the child's evidence, not the truth. If the child believes that his or her parents divorced when they separated or that there's a monster under the bed, so be it; the lawyer should draw the affidavit stating the child's understanding about when his or her parents divorced or where the monsters generally live. The lawyer should not correct the child's errors or act as censor.

The text of the affidavit should be drawn using the child's own language and quirks of phrasing as much as possible. Ideally, the child's parents should be able to hear the child speaking when they read the affidavit.
Give the child ample opportunity to read through and revise the affidavit.
I often read aloud affidavits I am preparing as I type. This gives the child the opportunity to hear what I am writing and offer corrections. It gives me the opportunity to clarify the child's statements – "is this it, have I got that right?" – and it helps the child to take some degree of ownership of both the process and the product. Whatever method the lawyer uses to draw affidavits, the child should be given a complete draft to read, with pen in hand, and offered the unfettered opportunity to take anything out, change anything and put new information in. The lawyer should avoid expressing any impatience, and encourage the child to make any changes he or she wishes: "this is your affidavit, not mine, and it needs to say exactly what you want it to say."
Remind the child of the importance of telling the truth and execute the affidavit.
Finally, when the affidavit is ready to go, the drafting lawyer should tell the child, with some pompous officiousness to underline the importance of the occasion, that he or she is now going to execute the affidavit. For children younger than fourteen, the lawyer should say something to the effect of "do you promise that the things you've said in this affidavit are true?" and take the child's signature. For older children, administering the standard oath or affirmation will do.

I then tell the child that the original copy of the affidavit will be going to the judge, and I always give a copy of the affidavit to the child. It is, after all, the child’s affidavit.

VI. Content Requirements for Children's Affidavits
Statutory requirements.
The Canada Evidence Act provides that children fourteen or older may give evidence on oath or affirmation. Under s. 16.1(6) of the act, however, children under the age of fourteen may not give evidence on oath or affirmation but upon their promise to tell the truth. This will require amendment to both the preamble, the introduction to the affidavit, and the jurat, the part where the person making the affidavit and the lawyer sign the affidavit.
Evidentiary requirements.
Under s. 16.1(3), the evidence of children under the age of fourteen may only be received if the children are able to understand and answer questions. The only person in a position to make this call at the time the affidavit is executed is, of course, the lawyer drafting the affidavit. This will require you to provide evidence on the point, either by a certificate attached to the affidavit or through a separate affidavit of your own.

In a 2007 case of the Manitoba Court of Queen's Bench called McMurray v McMurray, the court described the nature of the evidence required from a lawyer drawing the affidavit of a child:
"Firstly, such evidence should set forth the circumstances as to the independence of counsel swearing the child's affidavit i.e. who contacted them, who drafted the subject affidavit, and how much time was spent with the child? Secondly, who paid for counsel's professional time? Thirdly, and obviously most importantly, did the child deponent in counsel's professional opinion understand the nature of an oath or affirmation and further could the child, hopefully as evidenced by the affidavit, communicate the evidence provided? In other words, did the child volunteer the material and relevant contents of the affidavit to the drafting attorney."
Although this decision was given in the context of local legislation establishing a presumption against the evidence of children under the age of fourteen, the first and second points are applicable to the affidavits of all minors, and the third point would also be applicable to the affidavits of younger children under s. 16.1(3) of the Canada Evidence Act.

VII. Conclusion

Children's affidavits can be highly persuasive in family law cases, particularly when they address matters of importance and express an unambiguous preference which is clearly that of the child. However, 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, better 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. In my view the appropriateness of these alternatives should be considered very carefully before the decision to obtain a child's sworn statement is made.

This post is an updated and edited version of an article of mine published previously by the Canadian Bar Association, which in turn was based on a paper I'd written in October 2012, probably for a family law course put on by the Continuing Legal Education Society of BC, although I frankly don't recall which one. I would like to thank a friend and colleague of mine, Alyson Jones, a prominent and talented West Vancouver child and family therapist, for reminding me of the CBA article.