Introduction:
When parents separate, one of the most difficult questions is how, and to what extent, children should be heard in decisions about parenting and living arrangements. Do children have a choice? Do they merely have a voice? Should
they have their own lawyer, or does that risk placing them in the middle of an already difficult conflict?
In today’s blog, Peter Graburn, senior family lawyer at Shim Law in Calgary, discusses the evolving use of Voice of the Child Reports in Alberta parenting disputes, and how Courts approach the difficult balance between hearing from children and protecting them from harm.
Not long ago, children were expected to be “seen but not heard” in custody disputes. Family law has come a long way since the 1950s. Today, the challenge is not whether children matter in these decisions — but how best to include their
perspectives in a way that serves their best interests.
Table of Contents
What Are “Voice of the Child” Reports?
Voice of the Child Reports are tools used in parenting disputes to provide the Court with insight into a child’s views, preferences, and experiences, without requiring the child to testify directly. These reports may be used in both Court proceedings and out-of-Court processes such as mediation or arbitration.
In earlier discussions, we reviewed several ways in which a child’s voice may be brought before the decision maker, including through:
• social workers or counsellors, which are often of limited assistance in contested cases
• lawyers for the child, acting as an advocate, litigation guardian (“best interests”), or amicus curiae (friend of the Court)
• psychologists, typically through Practice Note 7 or Practice Note 8 assessments, which are often the most comprehensive and useful
Each approach has advantages and limitations. The key question is not simply whether the child’s voice should be heard, but how it should be heard.
Why Hearing the Child Matters
Hearing from children is not simply a matter of preference. Canada is a signatory to the United Nations Convention on the Rights of the Child, which it adopted in 1991. The Convention recognizes that children have participatory rights in legal proceedings that affect them and outlines procedural safeguards intended to protect
those rights.
Among the most important safeguards identified in Canadian commentary are:
• Legal representation — recognizing that parents in high-conflict disputes cannot be relied upon to fairly convey what is in the child’s best interests; and
• Obtaining the child’s views — not as the sole determinant of outcome, but as one of several important factors
The role of a child’s lawyer or professional assessor goes beyond simply relaying preferences. It involves ensuring the child’s voice is heard in a developmentally appropriate and emotionally safe way.
How Have Canadian Courts Approached This Issue?
Alberta Courts have not yet issued clear, recent guidance specifically defining when and how Voice of the Child Reports should be used. However, Ontario appellate decisions have provided contrasting perspectives that Alberta Courts may find persuasive.
In G.R. v. G.K. [2017 ONCA 108], the Ontario Court of Appeal emphasized the growing importance of incorporating children’s voices into legal proceedings. In that case, involving a 16-year-old seeking autonomy, the Court observed (at para. 67):
“This appeal demonstrates the importance of the emerging movement to incorporate the voice of the child in all matters concerning minors.”
Following this decision, it appeared that Voice of the Child Reports might become a routine feature of parenting litigation, subject to available resources.
However, less than a year later, the same Court took a more cautious approach in Mader v. McCormick [2018 ONCA 340]. There, the Court declined to appoint counsel for children aged 13 and nearly 16, expressing concern that doing so could be burdensome and harmful. The Court stated (at para. 13):
“This remedy should not be available only for the asking… It can cause untold harm to impressionable children who may feel suddenly inappropriately empowered against their parents… The test of the ‘best interests of the children’… still remains the benchmark against which any person wishing to interfere in their lives should be measured.”
What Does This Mean for Alberta?
Within a short period, the Ontario Court of Appeal moved from strongly endorsing the inclusion of the child’s voice to warning against overuse of blunt procedural tools. Alberta Courts often take guidance from Ontario jurisprudence, particularly where local authority is limited.
At present, Alberta law does not mandate Voice of the Child Reports in parenting applications. Their use remains discretionary and highly fact-specific. The age of the child, the level of conflict, allegations of family violence, and the potential emotional impact on the child all play a role.
Choosing the Right Tool
Voice of the Child Reports can be valuable, but they are not appropriate in every case. When used thoughtfully, they can assist the Court in understanding the child’s perspective without exposing the child to direct involvement in litigation. When used carelessly, they can increase stress and deepen conflict.
Determining whether a Voice of the Child Report is appropriate requires careful legal judgment and a clear understanding of how Courts are likely to view the evidence.
Final Thoughts
The use of Voice of the Child Reports remains one of the most sensitive and evolving areas of family law. Courts must balance the importance of hearing children with the equally important obligation to protect them from harm.
Experienced family lawyers can help parents understand when a Voice of the Child Report may assist — and when it may do more harm than good — and can guide families toward solutions that truly serve the child’s best interests.
