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Best Wishes of the Child Can be Determined by Judge’s Interview of the Child

by Daniel Gloade on August 21, 2017

In the case of J.J. v. C.C., 2017 ONCA 357 the Ontario Court of Appeal examined a Motion to Change.  The parties settled on a Parenting Plan.  They agreed on a Parenting Coordinator.

The Parenting Plan expired.  The Father argued that the plan’s expiration, as well as the degree of conflict between the parties, were a material change in circumstance.

The Court of Appeal held, however, that the Parenting Plan instructed the parties to return to the Parenting Coordinator once the plan had expired.  The Father should have used that route first.

During the third day of trial, the Father argued that the child should reside with him.  The trial judge decided to interview the child and write a transcript of the results.  The Court of Appeal affirmed that this decision was appropriate because:

  • The Father had himself to blame because he wanted to amend his pleading during trial;
  • The Father consented to the trial judge’s interview suggestion;
  • The opinion of the child could be obtained quickly, while further delay was not in the child’s best interests

The Father was upset because he wanted to read the transcript of the conversation between the judge and the child.  The trial judge refused.  The Court of Appeal held that this was appropriate.

Finally, the trial judge reduced the Mother’s child support arrears award by $27 000 in compensation for a past court costs award.  The Mother subsequently filed for Bankruptcy and was ordered to pay only $13 500.00.  The Court of Appeal agreed to reduce the set off by 50% to reflect the amount of court costs the Mother was entitled to receive.

There are two lessons for this decision.

First, a judge can interview a child if it is the only practical method of getting a child’s opinion in a timely manner;

Second, be careful about putting in dispute resolution procedures in agreements.  Although parties wisely try to avoid court, a court proceeding is the only way to compel a party to do something and force the other side to communicate in a civil and non-threatening manner.  Before putting in a dispute resolution clause, consider the likelihood that the other party will be hostile and uncooperative.

You can read the decision here.

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