Literally, it means “to speak the truth”.
But isn’t that obvious? It’s not so simple.
According to the Divorce Act and the Children’s Law Reform Act, when trial judges are asked to decide between competing claims by parents regarding the parenting of their children, trial judges are required to consider the views and preferences of the children.
Well, how are they supposed to do that?
One way is for the judge to interview the children in chambers. That became a very unpopular option as many judges declined to do so and some parents felt uncomfortable bringing their children into court to meet a judge to be asked to choose between their parents.
So then some parents retained a professional to conduct what was once called a custody and access assessment (now called a parenting assessment) to review the entire family history, interview the professionals who had dealings with the children and make recommendations on the children’s needs. This often involved the expert meeting with the children to ascertain their views and preferences.
These reports became very expensive and took a long time to complete. So instead, a new kind of report was sought by parents, lawyers and judges. This was called the Voice of the Child Report. This kind of report focused only on finding out what the children’s views and preferences were.
But then that too became challenging. Because under the law of hearsay, a person testifying in court as to what someone else told them is not admissible. A child’s out-of-court statement is hearsay if it is offered to prove the truth of the statement [R. v. Khelawon, 2006 SCC 57]. The medium of child hearsay can take many forms including video, audio, prior testimony, transcribed statement, contemporaneous notes taken by the professional interviewer or just by calling the witness.
So if a parent or their lawyer wishes to challenge the professional’s testimony as to what the child told them, they could ask for a Voir Dire.
The Supreme Court of Canada stated that a Voir Dire is a trial within a trial to determine the admissibility of proposed evidence [R. v. Erven, 1978 CanLII 19 (SCC)]. At the end of the Voir Dire, the judge will determine whether the preconditions for the admissibility of the proposed evidence has been met. Sometimes, a party may waive the Voir Dire and agree to the admission of the report and argue that the report should carry no or little weight.
Where child hearsay is offered, a Voir Dire must always be held unless the parties consent. The parent who wants to admit the Voice of the Child Report goes first on the Voir Dire and bears the burden of proof. Like a trial, each party gets to call witnesses, conduct direct examinations, cross-examine opposing witnesses, and make submissions. If the judge rules that the proposed Voice of the Child Report is admissible, the parties will generally consent to the evidence forming part of the main trial without hearing the evidence again outside the Voir Dire. If the Voice of the Child Report is ruled inadmissible, nothing heard on the Voir Dire can be used as evidence at the trial.
On a Voir Dire, the party seeking to admit the Voice of the Child Report must establish:
1. the qualifications of the professional who interviewed the children;
2. the process followed in preparing the Voice of the Child Report; and
3. the admissibility of the children’s hearsay.
The purpose for which child hearsay is offered will determine the test for admissibility. There are four possible purposes for child hearsay:
1. to prove a child’s wishes or preferences;
2. to prove a child’s physical, mental or emotional state;
3. to prove a child has been physically or sexually abused; or
4. to prove other facts relevant to the issues.
If the purpose of the child hearsay is prove a child’s wishes or preferences or a child’s physical, mental or emotional state, admissibility will be determined by the hearsay exception. To be admitted under this exception, the party offering the child hearsay must prove the following requirements:
1. a statement asserting a condition or state;
2. the statement must describe a contemporaneous physical, mental or emotional state of the child;
3. the statement must not describe the cause of the state, whether it be past or present events;
4. the mental state can include a child’s present intention to do a future act; and
5. the statement must not be made under circumstances of suspicion.
[R. v. Starr, 2000 SCC 40; R. v. Griffin, 2009 SCC 28; Valoris for Children & Adults of Prescott-Russell v. J.W., 2022 ONSC 349; T.L’H. v. G.L’H., 2022 NBQB 155; C.A.S. of Toronto v. G.S., 2018 ONCJ 124; Family & Children’s Services of St. Thomas and Elgin v. A.C., 2013 ONCJ 452].
If the purpose of the child hearsay is to prove other facts relevant to the issues, then the party has the burden of proving both ‘necessity’ and ‘threshold reliability’ [R. v. Khan, [1990] 2 SCR 531 and R. v. Khelawon, 2006 SCC 57]. ‘Threshold reliability’ means sufficiently reliable. The following factors are typically considered by the courts in determining the threshold reliability of a child’s statements:
1. age of child;
2. timing and recency of events;
3. child’s ability to observe;
4. child’s ability to recollect;
5. intelligence and maturity;
6. language, ability to recount;
7. demeanor;
8. internal consistency/inconsistency;
9. sufficient detail;
10. coherence;
11. against own self-interest;
12. consistency/inconsistency with other evidence;
13. character for truthfulness.
The professional preparing the Voice of the Child Report must be qualified to prepare such reports. The professional must understand their duty to give impartial, independent and unbiased evidence to the court [White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23].
The last step in determining admissibility is that the judge must be satisfied that, even if otherwise admissible, the probative value of the evidence outweighs the countervailing concerns of undue prejudice, undue consumption of time, confusion of issues and unfair surprise [R. v. Khan (SCC 1990) and R. v. Schneider, 2022 SCC 34].
Conclusion:
So if you are a separated parent and you cannot agree on what the parenting schedule for your children should be, you could find yourself requiring a Voice of the Child Report and, if you are questioning its reliability, you could ask for a Voir Dire. Another option is to not choose to litigate the parenting schedule and instead choose the faster, less contentious and least expensive route to settle your case by hiring a Divorce Mediator, Arbitrator or Parenting Coordinator.
Thank you to Professor Rollie Thompson for presenting his paper on “Voice of the Child Report and Child Hearsay Voir Dire: A Roadmap” at the AFCC-O Conference on October 19, 2023.
Steve Benmor, B.Sc., LL.B., LL.M. (Family Law), C.S., Cert.F.Med., C.Arb., FDRP PC, is the founder and principal lawyer of Benmor Family Law Group, a boutique matrimonial law firm in downtown Toronto. He is a Certified Specialist in Family Law, a Certified Specialist in Parenting Coordination and was admitted as a Fellow to the prestigious International Academy of Family Lawyers. Steve is regularly retained as a Divorce Mediator/Arbitrator and Parenting Coordinator. Steve uses his 30 years of in-depth knowledge of family law, court-room experience and expert problem-solving skills in Divorce Mediation/Arbitration to help spouses reach fair, fast and cooperative divorce settlements without the financial losses, emotional costs and lengthy delays from divorce court.
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