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Thursday, February 18, 2016

"I want the Judge to speak to my child" - BlogBite

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Question: "My son, who is 6, has told me over and over again that he wants to live with me and not his mother. I want him to tell the Judge that. Judges speak to children to find out what they want, correct?"

Answer: When a Judge in Ontario considers a child-related issue (but not child support), he/she is expected by the legislation to take into account the views a child expresses as to the situation. It is important to realize that this is only one of the many factors a Judge is to take into account, and is not determinative of (does not decide) the issue.

That being said, those expressed views are to be considered having regard to the child's age, maturity, and ability to express themselves clearly and consistently. Further, the Judge must determine whether the views expressed, if any, are really those of the child and not of either of the parents, through the child.  If there is any general rule to be drawn from the legislation and related case law, it is that the younger the child, the less likely the Court is to take into consideration the child's views and preferences.

Judges rarely speak to children directly. That happens only in rare and unique circumstances. Children's voices come before the Court in a variety of other ways, which will be the subject of another post. Stay tuned.

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