We all know that children suffer the most in family law proceedings. However, giving weight to a child’s preferences in the proceedings can give them a sense of autonomy and control of the situation. As a result, the provincial Children’s Law Reform Act and the federal Divorce Act both emphasize that courts must consider the views and preferences of the child when it comes to determining their best interests, in accordance with the child’s age and maturity.
This is not an easy task; the Ontario Court of Appeal acknowledged that:
It has always been a challenge for family law courts to find a way for children to express their views without exposing them to further trauma or causing more damage to the family. Those who work in the family law system are all too aware that children remain part of the family long after a judicial decision is reached. The process of determining the child’s true wishes and preferences requires delicacy, for to undertake the process without expertise may further hurt the child and fracture family relationships.
The courts have approached this challenge in various ways. This article will discuss one such method: Voice of the Child Reports.
What is a Voice of the Child Report?
A Voice of the Child Report (VOC) is a short report written by an expert clinician or lawyer for the court which summarizes a child’s views, preferences, and statements on a particular issue in a determination of decision-making responsibility or parenting time.
- formal interviews of the parents;
- observation visits of the child and parents;
- gathering of information from third parties, such as teachers and family doctors;
- disclosure meetings; or
Courts have generally been receptive of this new measure. VOCs are considered to be “an effective and efficient process for ensuring the right of the child to participate in proceedings that affect them and for fulfilling the court’s mandate to consider their views and preferences.” Aside from testifying in court or speaking directly to a judge in private, which can be intimidating and traumatizing for a child, VOCs are one of the few methods which allow courts to receive direct information on the child’s preferences.
A clinician of the Office of the Children’s Lawyer (OCL) may also complete a more detailed Children’s Lawyer Report, or a s. 112 assessment. In this report, the clinician is required to meet with the parents and child; observe the child with the parent; contact other adults in the child’s life, like teachers, doctors, day care workers, and therapists; and write a report with details of their investigation and recommendations. This report is more time-consuming and expensive than a VOC and takes approximately 90 to 120 days to complete, compared to 30 days for a VOC.
How do I Obtain a VOC?
To obtain a VOC from the OCL, you must complete the following steps:
- Request from the Court
You must first obtain a court order requesting that the OCL intervene and provide a VOC. The court will define the issues to be addressed in the report via a Voice of the Child Endorsement Form.
- Complete Intake Form
Upon receiving the order, the parties must complete a Voice of the Child Intake Form and send it to the OCL within one business day of the order. The intake form can be emailed to OCL.LegalDocuments@ontario.ca or faxed to 416-314-8050. If the parties complete the intake form immediately after the order is made before leaving the courthouse, then the court staff can send the court order and completed intake form to the OCL together.
- Acceptance of Case by OCL
When the OCL receives the court order and intake form, they must decide whether to accept or refuse the case. The OCL will notify the parties and the referring judge of their decision in writing. If accepted, an OCL clinician will be assigned to the case.
If the OCL refuses the case, then you can still obtain a VOC by retaining your own expert or children’s lawyer and paying for the report yourself.
- Contact from Clinician
After receiving the assignment, the clinician will contact the parties involved to introduce themselves, describe the VOC process, request a copy of all relevant court documents and endorsements, gather information about the referral, and arrange a time and place to interview the child.
- Interviews with Child
The child will attend two interviews with the clinician on two separate days. At the end of each interview, the clinician will review the child’s statements with them to ensure that they accurately reflect their views.
- Notification of Final Report
The clinician will inform the parties when the interviews have been completed. The VOC will be filed with the court and sent to the parties within 30 days of the clinician’s initial involvement with the case. After the report is completed, OCL’s involvement with the case will end.
Who Can Write a VOC?
If the OCL agreed to be involved in your case, then the VOC will be written by an OCL expert. The OCL expert can be a clinician or a children’s lawyer with expertise in the areas of child development and children in families with conflict.
You can also hire a non-OCL clinician to write a VOC for you. Here, it is important that the writer is a neutral and non-biased third party. Courts have rejected the parties’ choices to write a VOC when they had a pre-existing relationship with the child, a professional relationship with one of the parties, or had already rendered opinions or recommendations in the proceedings.
Furthermore, a non-clinician should ideally be a children’s lawyer sitting on the personal rights panel for the OCL. In Stefanska v Chyzynski, after the OCL declined involvement due to lack of resources, the mother retained a lawyer to write the report. This lawyer only practiced family law in a limited capacity, was not an expert in child psychology, and had never prepared a VOC before. Her expertise was limited to a three-hour consultation from a child and family therapist who had prepared VOCs before. Justice Horkins emphasized that it was preferable that the VOC was prepared by a trained professional. However, as the report is only a “vehicle to present the views of the children to the Court without any evaluation”, he reluctantly admitted the report. Despite this ruling, if you want your VOC to carry more weight, it is best to do your research and retain a professional with experience in preparing VOCs.
When Should I get a VOC for My Child?
A VOC may be appropriate in the following circumstances:
- When your child is an appropriate age. VOCs are generally not available for children under the age of seven, although this cut-off is not strictly enforced and is highly dependent on the individual child’s maturity. A VOC can be created so long as the child is capable of conveying their preferences in a meaningful way. VOCs also may not be as useful for older teenagers, as courts are often reluctant to make parenting time decisions for children close to the age of majority.
- When you and your former partner disagree about your child’s preferences. VOCs allow parents to get a better understanding of their child’s views and preferences. This can help resolve issues surrounding parenting time and decision-making responsibility earlier in the litigation process, which saves time, costs, and stress for everyone involved.
- When your child wants to express their views. A VOC will be much more impactful if your child is interested in communicating their views and preferences to the writer. As noted above, this experience may give your child a sense of control and autonomy in the situation without feeling like they’re taking a parent’s side.
While VOCs may be less useful in cases where there are issues of parental alienation or allegations of abuse or neglect, for the vast majority of parenting and decision-making disputes, a VOC is an excellent way for your child to feel heard and acknowledged in the court process.
If you have questions about obtaining a VOC or another other family law matter, please visit our website or contact Jillian C. Bowman from Devry Smith Frank LLP at 249-888-4639 or Jillian.Bowman@devrylaw.ca.
This blog was co-authored by law student, Leslie Haddock.
“This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.”
 Ontario (Children’s Lawyer) v Ontario (Information and Privacy Commissioner), 2018 ONCA 559 at para 65.
 Byers v Byers, 2023 ONSC 297 at para 21 [Byers].
 Ibid at para 22.
 This assessment is provided for in the Courts of Justice Act, RSO 1990, c C43, s 112(1).
 Stefanska v Chyzynski, 2020 ONSC 3048.
 Ibid at para 93.
 See Byers, supra note 3 at para 25, where Justice Tellier ordered a VOC for a six-year old child.
 In Medjuck v Medjuck, 2019 ONSC 3254 at paras 28-29, Justice Kristjanson refused to order a VOC for a seventeen-year old who chose to reside with his father and have no contact with his mother.
 For instance, see ibid at paras 31-32 and Canepa v Canepa, 2018 ONSC 5154 at para 23.