By Shauna Tucker
Parents sometimes ask us if their children can be witnesses at their family law trials. These parents usually believe their children have very strong views about how much time they want to spend, if any, with each parent.
Judges will not usually allow minor children to take the witness stand in a trial. A consistent body of law reflects the view that it is not good for children to be drawn into parental conflict – and nothing says conflict like a trial.
This view was most recently repeated by Justice MacNaughton, in K.S.P. v. J.T.P. 2023 BCSC 188, when she denied a father’s application to be allowed to put his 9 and 11 year children on the witness stand (and to have a lawyer appointed for them). Justice McNaughton wrote:
“[7] . . . . Drawing the children into the proceedings as parties will further damage all parties’ relationships and would be antithetical to the issue before me: the best interests of the children. . . “
Justice MacNaughton ruled that the father’s application, brought in the middle of trial, was ill-timed. Three other factors, however, were more significant factors in her reasoning.
First, the Family Law Act requires that parents and Judges take the views of children into account in making decisions affecting them. There are many ways for those views to be discerned, without putting children on the witness stand. Children can be interviewed, by professionals trained to talk to children after their parents separate, and reports of the interviews filed with the courts. These Reports can take the form of “Hear the Child Reports”; “Views Reports” or “s. 211 Reports”. In K.S.P. v. J.T.P. 2023 BCSC 188 the children had spoken with a s. 211 Reporter, who had reported not just on the children’s views, but assessed parental ability. The children had also spoken to social workers with the Ministry of Child and Family Development about their family. Each parent also gave considerable amounts of evidence about what they thought their children wanted, and what was best for them.
As a rule, courts will only seriously entertain an application for a child to testify or have their own lawyer, if parents are thought to be incapable of presenting evidence of the children’s views and evidence about their best interests. This almost never happens.
Second, the Judge expressed concern that the children’s views in the case had been “manipulated” and found that the father had already, by speaking with the children about testifying, had inappropriately involved them in legal matters, which are adult matters.
Parents should be aware of this Catch-22. After separation, parents are strongly cautioned by most of the professionals they meet not to put children “in the middle” of parental differences of opinion. A parent cannot come to court and say “I know my children want to testify at my trial” without effectively telling the judge they have been discussing the trial with their children, which is “caught in the middle” behaviour.
Finally, the case of K.S.P. v. J.T.P. 2023 BCSC 188 involved serious allegations of family violence. The children had witnessed an assault by the father on the mother. The judge ruled it would be inappropriate and harmful to make children witnesses in a case that not only involved parenting arrangements, but serious parental conflict about other forms of family violence.
In short, it highly unlikely that a child will be permitted to testify in a family law matter. Your child does have a right, recognized in provincial, federal and international law, to an opinion about their living arrangements after separation. To paraphrase Justice MacNaughton, however, there are many far less intrusive ways, than making them a witness at your trial, to get those views before the court.
The lawyers at Brown Henderson Melbye can talk to you about how children can be heard in your family law matter, without being put in the middle of any differences of opinion between you and your former spouse. Trudi Brown, KC, is also an accredited Hear the Child interviewer.