As a general rule, children do not testify in custody proceedings. There is no rule that says they can’t testify, but most judges have taken the view that allowing children to testify would leave them open to manipulation by their parents. Many judges also think that testifying in a courtroom, with both parents also present, would cause children unnecessary emotional trauma. As a result, the law in Ontario has evolved to find ways to put children’s wishes before the court without the need of the children having to come in and testify.
One of the ways that children’s wishes are put forward is through a lawyer appointed for the children of a family whose parents are disputing custody in court. The Ontario government runs a program through the Ministry of the Attorney General for this purpose (The Office of the Children’s Lawyer). The OCL may appoint a lawyer to represent children in appropriate cases, without cost to the family. A lawyer representing the children will meet with the children and with both parents, and will advise the parents and the judge what the children’s wishes are.
Sometimes, if the conflict is really serious, or if there are mental health issues in the family, the OCL will appoint a social worker to investigate both homes and provide a written report to the court, with a recommendation as to what should happen regarding custody of or access to the children.
Here is the website for the OCL, which provides more information on the program:
Keep in mind that the OCL only becomes involved if the parents have gone to court to dispute custody. Without a court action, the OCL will not becomes involved.
Barrister & Solicitor
151 Wellington Street #1
Kingston ON K7L 3E1
(613) 530-2665 (voice)
(613) 530-2241 (fax)