At the OBA’s Seventeenth Annual Bread & Butter Issues in Family Law program on September 24, 2026, Dr. Rachel Birnbaum, Adjunct Research Professor and Distinguished University Professor Emerita at King’s University College, Western University, and Caterina (Cathy) Tempesta, Counsel at the Office of the Children’s Lawyer, jointly delivered a presentation to attendees on children’s participation rights, the different ways children may be heard, and the importance of treating their views as the beginning of a child-centred inquiry. This article summarizes some of the key principles and practice tips provided during this session.
Considerations for Children’s Participation in Family Law Matters
Children generally want a say in family arrangements without being responsible for the final decision. Participation can provide decision-makers with better information, focus parents on their children’s needs, and facilitate settlement. However, children may feel caught between their parents, worry about a parent’s reaction, or have difficulty understanding the process. These concerns should shape how children participate rather than exclude them from participating.
Practice Tip: Always seek the child’s permission before discussing their family circumstances. Explain the process in age-appropriate language and emphasize that participation is voluntary. The right to be heard includes the right not to participate.
Legal Requirements for Considering Children’s Views
Both s. 16(3)(e) of the Divorce Act and s. 24(3)(e) of the Children’s Law Reform Act require consideration of a child’s views and preferences, with due weight given to the child’s age and maturity, unless those views cannot be ascertained.
Ways to Incorporate Children’s Voices Outside of Court Proceedings
Parenting Coordination
Children experience parenting arrangements firsthand. Their perspectives can provide valuable insight into transitions, holidays, school activities, and their adjustment to family changes. When children are heard, parenting coordinators can better understand their needs without placing the burden of decision-making on them.
Child-Inclusive Mediation
Commencing in the fall of 2026, child-inclusive mediation will be offered in more than 20 courts across Ontario by participating service providers, including Peel Family Mediation and Toronto Family Mediation Services. The model allows specially trained mediators to meet with children and bring their views, experiences, and concerns into the mediation process in a child-centred and age-appropriate way.
This initiative builds on the success of the previous Child and Youth Informed Mediation Pilot Project (CYIM), a collaboration between the Office of the Children’s Lawyer and Peel Family Mediation Services. The pilot incorporated children’s views into mediation through Voice of the Child Reports or representation by children’s lawyers, demonstrating that child participation can promote children’s rights and welfare and help resolve cases without trial.
Practice Tip: Counsel should have referral resources available for parents who need guidance on speaking with their children about divorce and separation. Resources include: Families Change, the Department of Justice’s “A Child’s Views and Preferences” fact sheet, and the Social Workers Toolbox booklets for children coping with separation, divorce, and family change.
Legal Representation of Children in Family Court Proceedings by the OCL
The Office of the Children’s Lawyer (OCL) may become involved in parenting and child protection proceedings. A court order is required for OCL involvement. In parenting cases, the OCL has discretion to accept or decline a referral. In child protection proceedings, however, the OCL must appoint counsel once the court orders legal representation for a child.
Where an order requests OCL involvement, counsel should use the OCL’s standard-form order without modifying its language. The standard terms identify the OCL’s role and the services it may provide. Parties should also be advised that they must complete the necessary intake materials, cooperate with the OCL, and facilitate meetings between the child and the assigned professional.
When the OCL provides legal representation for a child, counsel acts for the child in a traditional solicitor-client relationship, advancing the child’s views and preferences rather than independently assessing their best interests. OCL counsel may call and test evidence and make legal submissions, but does not issue a report. A clinical investigator may assist counsel and, if necessary, provide evidence.
Practice Tip: Address and explore the option of OCL involvement early on in the court process. Encourage clients to cooperate promptly with the OCL to avoid delays and further court involvement.
Voice of the Child Reports in Family Court Proceedings
In some cases, the preparation of a Voice of the Child Report pursuant to s. 112(1)(c) of the Courts of Justice Act can assist the parties and the court in resolving parenting disputes. This process can be conducted through a private retainer with a lawyer or social worker with experience preparing these reports, or through the OCL. When the OCL agrees to become involved, the clinical investigator meets with the child twice to determine and report the child’s views and preferences concerning issues that may include decision-making responsibility, parenting time, or contact. The report is non-evaluative and does not involve a broader investigation or recommendations about parenting arrangements. The clinical investigator’s report will be attached as an exhibit to an affidavit, and the affidavit will be served on the parties and filed with the court. The affidavit with the attached report will form part of the evidence in the court proceeding.
Practice Tip: Consider what is actually required in each case. A Voice of the Child Report may be appropriate where the principal objective is to place a child’s views before the Court neutrally and in the child’s own words, but will likely not be appropriate where the Court requires a broader clinical assessment and parenting recommendations.
Participation as a Children’s Rights Issue
Regardless of whether there is an active court proceeding or not, child participation is grounded in the United Nations Convention on the Rights of the Child. Article 3 requires the child’s best interests to be a primary consideration, while Article 12 protects a child’s right to express their views and have those views given due weight according to the child’s age and maturity. Although the Convention has not been fully incorporated into Canadian law, domestic legislation is presumed to conform with international law, and the Convention’s values may inform the interpretation of Canadian family law.
A proper best-interests analysis cannot be completed without hearing from a child who is capable of expressing views about the decision. Meaningful participation also requires more than simply allowing the child to speak. The child’s views must be considered and given appropriate weight. Otherwise, participation risks becoming a tokenistic exercise in “ticking a box.”
Research in this area shows that children often want “a voice, not a choice .” Hearing from a child does not mean asking the child to decide the case or placing responsibility for the outcome on them. It means listening carefully, considering the child’s perspective, and explaining how that perspective informed the decision. At the same time, the right to be heard includes the right not to participate. A child should not be pressured to express views if they do not wish to do so.
Starting from the Child’s Perspective
In SK v DG, 2022 ABQB 425, the Court of King’s Bench of Alberta adopted a child-centred approach by asking why the child’s wishes should not be followed. This approach requires adults to take the child’s views seriously and understand the child’s lived experience from the child’s perspective.
Practice Tip: Frame the analysis from the child’s perspective. The burden should not be on the child to explain why their views should be considered.
Avoiding Assumptions About Children’s Views
Particular care is required when parental alienation is alleged because the allegation itself can minimize or silence a child’s views. There may be many reasons why a child resists contact with a parent, including family violence, parent-child conflict, the child’s natural affinity with one parent, or practical concerns involving school, friends, and activities.
Practice Tip: Counsel and decision-makers should therefore examine the child’s views from the child’s reality before attributing them to parental influence. Alienation or undue influence must be established through evidence rather than assertion. Issues of alienation are generally multifactorial and should not automatically be reduced to a single explanation.
For me, Dr. Rachel Birnbaum and Cathy Tempesta’s training reframed what it means to hear from children in family law matters. Giving children a voice is not about drawing them further into a family dispute, but about recognizing that they are already living with its effects. Listening to children respects their agency and recognizes that they have a place in a process that will shape their lives. Ultimately, creating opportunities for children to share their perspectives can help foster more thoughtful and effective outcomes for children and families.
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