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May 28, 2018 | 2018-21
Epstein’s This Week in Family Law
• When Should a Court Order Private Counsel for a Child?
• When is Fresh Evidence to Be Admitted?
• Imposition of a Fine for Non-disclosure
• Hague Convention for Service Abroad
• To Adjourn or Not to Adjourn? – That is the Question
required to hear the voice of the child when the child is of suffi-
cient maturity to express a vie w. When Should a Court
Thatistheissueexploredinthiscaseand, respectfully, the Court Order Private Counsel for of Appealfor Ontariogivesscantguidanceandnotmuchconsidera-tionoftheUnitedNationsConventionontheRightsoftheChild. a Child? ThefatherappealsfromthedecisionofaSuperiorCourtofJustice
upholding a decision of the Ontario Court of Justice dismissing his
HouriganJ.A., G.ParduJ.A., GrantHuscroftJ.A.BoththeChil- and13yearsofage.Itwasprobablythedecidingfactorthatthe
dren’sLawReform Actandthe UnitedNationsConventiononthe fatherhadinitiatedamotiontovaryaccessyearsearlierand,atthat
RightsoftheChildmakeitclearthatwhereachildiscapableof time,theOfficeoftheChildren’sLawyerconductedaninvestiga-the Office of the Children’s Lawyer be involved again, but that
In Ontario,theOfficeofthe Children’sLawyerfrequentlytakeson motionwasdismissed.
that role to represent children and ensures that the court, in some
Now the father asked that a private lawyer be appointed to re-fashion, hears the wishes and preferences of the child. If the Office
presentthechildren. Theprivatelawyerdeposedinanaffidavitthat oftheChildren’sLawyerisnotinvolved,orthecaseoccursina hewouldhaveconductedtheinvestigationinthesamemanneras provincewherethatfacilityisnotavailablethensomethingelse
theOfficeoftheChildren’sLawyer. shouldbedone.InmanyprovincesinCanada,thecourtshaveor-deredVoiceoftheChild Reportsinordertohaveanindependent Themotionjudgedismissedthemotionbecauseoftherelatively
thirdparty,usuallyasocialworkerorapsychologist,provideevi- recentinvolvementofthe Officeofthe Children’sLawyer’scounsel
dencetothecourtastothechildren’ swishesandpreferences.An- andthechildren’sviewsatthattimethattheydidnotwantto
othermethod,bothexpensiveandtimeconsuming,isacourt-or- changetheparentingplan. Therewassomeevidencethatthechil-deredassessmentbyapsychologistorpsychiatrist.Sometimes drendidnotwanttotalkabouttheissueofincreasedaccess.The
judgesresorttointerviewingchildreninchambersandhaveadopted Courtthoughtthatthechildrencould wellbeembarrassedbyan