INCREASING THE EMPHASIS ON THE CHILD IN THE RESOLUTION OF CUSTODY DISPUTES by Steven Andrew Strickland LL.B (Hons.) University of Adelaide, 1972 thesis submitted in partial fulfillment of the requirements for the degree of Master of Laws in The Faculty of Graduate Studies (Department of Law) We accept this thesis as conforming to the required standard The University of British Columbia September, 1979 ©Steven Andrew Strickland, 1979 In p r e s e n t i n g t h i s t h e s i s i n p a r t i a l f u l f i l m e n t o f the r e q u i r e m e n t s f o r an advanced degree a t the U n i v e r s i t y o f B r i t i s h C o l u m b i a , I a g r e e t h a t the L i b r a r y s h a l l make i t f r e e l y a v a i l a b l e f o r r e f e r e n c e and s t u d y . I f u r t h e r a g r e e t h a t p e r m i s s i o n f o r e x t e n s i v e c o p y i n g o f t h i s t h e s i s f o r s c h o l a r l y purposes may be g r a n t e d by the Head, o f my Department o r by h i s r e p r e s e n t a t i v e s . I t i s u n d e r s t o o d t h a t c o p y i n g o r p u b l i c a t i o n o f t h i s t h e s i s f o r f i n a n c i a l g a i n s h a l l not be a l l o w e d w i t h o u t my w r i t t e n p e r m i s s i o n . Department n f L a w The U n i v e r s i t y o f B r i t i s h Columbia 2075 Wesbrook P l a c e V a n c o u v e r , Canada V6T 1W5 n a t . P 3 r d S e p t . 1 9 7 9 ABSTRACT i i The problem which i s confronted i n this paper i s a perennial one; the resolution of c h i l d custody disputes. However, i t i s not the aim of the paper to provide a quick and easy solution, even i f such were possible. Instead, i t i s contended that a much more s a t i s f a c t o r y r e s u l t can be achieved i f there i s more emphasis placed on the person who i s the most affected by a court's decision, namely, the c h i l d himself. A detailed examination of the p r i n c i p l e s used i n the t r a d i t i o n a l method of determining c h i l d placement indicates that there i s a decided lack of input from the c h i l d . Unfortunately, the blame can be l a i d at the feet of not only the courts and the lawyers, but also l e g i s l a t u r e s and the public generally. T r a d i t i o n a l methods of adjudication are employed without an appreciation of the s p e c i a l nature of the problem at hand. Fortunately though, the solution i s not far away, and i t i s the major contention of t h i s paper that a more e f f e c t i v e use of the methods and proceedings already at Qur disposal w i l l provide the input necessary to inform a decision on t h i s most d i f f i c u l t of issues. i i i The methods of providing input from the c h i l d can be divided into two categories. There can be either d i r e c t or i n d i r e c t input. The former category comprises evidence from the c h i l d and interviews by the judge, while the l a t t e r consists of independent representation by legal counsel and the u t i l i s a t i o n of behavioural s c i e n t i s t s . These methods are examined i n great depth, and guidelines are suggested, as well as p i t f a l l s i d e n t i f i e d . F i n a l l y , as a concession to those who would chance the system of c h i l d placement e n t i r e l y , this paper looks at suggested alternatives, but concludes that there i s i n f a c t no better system than one involving adjudication by a court, as long as the same becomes less parent orientated and more c h i l d orientated. TABLE OF CONTENTS i v Chapter Page 1. Introduction 1 2. H i s t o r i c a l Background and the Applicable Statute Law 9 3. The Best Interests of the C h i l d 19 4. Improving the Determination of the Best Interests of the C h i l d 132 ( l ) Increasing the Input from the C h i l d into the Decision-making Process 132 (a) Is C h i l d Input Feasible? 138 (b) The Methods of Achieving Input from Children 148 ( i ) Indirect Methods 148 Independent Representation of Children 143 The U t i l i z a t i o n of Behavioural S c i e n t i s t s 213 ( i i ) Direct Methods 272 Evidence by the C h i l d 272 Interviews by the Judge 278 V Chapter Page (2) Is a Judge the Appropriate Arbiter of a Custody Dispute? 297 5. Conclusion 351 Bibliography 355 CHAPTER 1 INTRODUCTION 1 The time-worn adage that children should be seen and not heard i s an apt description of. t h e i r treatment by the law.' For too long now children have been deprived of any involvement i n the ordering of t h e i r future, p a r t i c u l a r l y where le g a l proceedings are concerned. This attitude of the law i s premised on the assumption that parents know what i s best for t h e i r children}" and therefore the law should not i n t e r f e r e i n the parent/child r e l a t i o n s h i p . I t i s c e r t a i n l y true that families are not legal i n s t i t u t i o n s . 1 They are moulded by society and do not necessarily bend with changes i n the law. However, i n c r i s i s situations the pressures in society cannot cope, being tuned to an integrated family. Accordingly, the law must step i n and take over from society as the instrument for ordering family relationships, but, most importantly, i t must do so on other than t r a d i t i o n a l precepts. I t i s t o t a l l y inappropriate to allow the parents to speak and act for the c h i l d when the family unit disintegrates and c h i l d placement becomes the issue. Yet, i n fact, the law proceeds on this basis, and there i s very l i t t l e emphasis on the c h i l d as an i n d i v i d u a l . The law's method of dealing with the highly emotive issue of c h i l d placement i s to thrust i t on a court steeped i n the t r a d i t i o n s of criminal and/or c i v i l j u r i s d i c t i o n , and one deceptively simple guideline i s provided; the children s h a l l be placed i n accordance with their best interests. The adversary process i s then set i n motion with the children as the prize or reward for the successful parent. The question can v a l i d l y be raised as to whether th i s i s the i d e a l setting for a determination of c h i l d placement. I suggest not. Admittedly, the l e g i s l a t i v e guideline i s there, and the facts can generally be ascertained with a r e l a t i v e l y high degree of certainty, but the important step i s linking up the facts with the best interests of the c h i l d . The court i s provided with a discretion that i s extremely wide, but that i n i t s e l f creates d i f f i c u l t i e s . Rarely do two judges view what i s i n the best interests of the c h i l d i n the same fashion, and judgements are as varied and as diverse as there are children from broken homes. Yet, the judge hearing the matter i s the sole a r b i t e r as to what w i l l enhance the welfare and happiness of the children before the court. The comment can be made that i f a judge i s to be placed i n this position, then i t i s essential that he be apprised of the entire spectrum of psychological influences at play when children are rudely awakened from the s t a b i l i t y of a two parent household. Thus, the court needs to be receptive to evidence from the behavioural sciences and recognise the inadequacies of a s t r i c t l e g a l i s t i c approach to the issue of c h i l d placement. The court must f e e l s a t i s f i e d 3 that a l l the available evidence has been placed before i t . Unfortunately though, t h i s cannot be achieved within the t r a d i t i o n a l adversary system. Each parent, through counsel, views the proceedings as a battle ground, the aim being, to convince the court that the other parent i s u n f i t to have the care and control of the children while establishing his or her own s u i t a b i l i t y in that regard. I t i s within the power of the parties themselves to determine the extent of the information that w i l l be presented to the court i n order to achieve t h i s purpose. Thus, the evidence presented can be very s t i l t e d and partisan; not at a l l what the court requires in order to base a decision designed to promote the interests of the children. Accordingly, there i s a need for a counterbalancing factor and I suggest that this should be independent information concern-ing the c h i l d i t s e l f , p a r t i c u l a r l y the views, feelings and thoughts of the c h i l d . The entire future of the children i s at stake when a family unit dissolves, and i t i s not unreasonable to suggest 2 that they, as the persons most affected by the decision, should have an. independent voice i n the proceedings. I t i s e n t i r e l y unsatisfactory to r e l y on the squabbling parents to promote the welfare of the children i n an unbiased fashion. Apart from the fact that children might have opinions and interests separate and d i f f e r e n t from those of the parents, the motives of the l a t t e r i n urging claims over children sometimes 4 comprise revenge against, and/or punishment of, the other of them, and i t i s common for the children to be viewed merely as •43 chattels to be bargained with.' Nor should the court i t s e l f be r e l i e d on as the sole protector of the children's best i n t e r e s t s , although t h i s has been the t r a d i t i o n a l approach. I suggest that i t i s unwise for the court to descend into the arena of the proceedings in order to look beyond the interests of the parents. The danger i s that the judge w i l l take on the r o l e of advocate for the c h i l d and place his o b j e c t i v i t y in question. Yet, this has been necessary given the l i m i t s of the adversary system. Cle a r l y though, the adversary system i s here to stay, at least for the present, 4 and therefore i t i s necessary to look primarily at how best the trappings of such a system can be u t i l i z e d to provide the required input. The obvious response •5 i s for the children to be independently represented i n court, and for them to be treated as parties to the action i n the f u l l e s t possible sense. Indeed, i t seems to me that a r i g h t to be heard i n this context i s as fundamental a r i g h t as any.^ But i t does not stop there because separate representation i s not necessarily the panacea that i t seems. I t s t i l l must be r e a l i s e d that custody determination d i f f e r s markedly from the recognised model of adjudication. Thus, other devices, foreign to the t r a d i t i o n a l approach of courts need to be u t i l i z e d ; e.'g.1, the interviewing of children by the judge, and the extensive use 5 of evidence from the behavioural sciences, to mention just two matters. There also needs to be a general recognition by the court and the l i t i g a n t s that the court room i s to be used only as a l a s t resort. L i b e r a l use of p r e - t r i a l conferences, and even conferences prior to the i n s t i t u t i o n of proceedings i s ess e n t i a l to soften the traumatic e f f e c t of the disintegration of the family unit. Simply stated, courts dealing with this d i f f i c u l t question of c h i l d placement must become less parent-orientated and more child-orientated. In other words : "The child's point of view, what's f a i r to him, not merely the mens rea of the one who wields the rod must be taken into account." 7 To i l l u s t r a t e t h i s need for input from the c h i l d t h i s paper examines the existing method of resolving custody disputes, p a r t i c u l a r l y i n divorce proceedings, being as i t i s the ultimate destruction (apart from death) of the family unit. However, i t i s easy to assume that input from the c h i l d i s a f e a s i b l e concept, and accordingly the capacity of a c h i l d i s b r i e f l y considered. This review provides reason for optimism as to the potential for d i r e c t input from the c h i l d , but i t i s also evident that t h i s input can sometimes only be what a t h i r d party perceives as the needs of the c h i l d . Thus, there can be. both d i r e c t and i n d i r e c t input from children into the decision-making process, and the major portion of t h i s paper i s 6 concerned with investigating the methods for ensuring this.! However, i t w i l l be seen that these methods d i f f e r according to whether there i s d i r e c t or i n d i r e c t input. In respect of the former, the methods comprise interviews by the judge and evidence from the c h i l d i t s e l f , whereas the l a t t e r comprises methods such as representation by independent counsel and the u t i l i z a t i o n of behavioural s c i e n t i s t s . The paper then concludes with a discussion regarding the retention of judges as the sole arbiters of custody disputes. 7 FOOTNOTES, CHAPTER 1 1. "It is not the benefit to the infant as conceived by the court, but i t must be the benefit to the infant having regard to the natural law which points out that the father knows far better as a rule what i s good for his children than a Court of Justice can". In Aaar-Ellis (1883), 24 Ch. D. 377, at PP. 337-338. Also see Chisholm : "Obtaining and Weighing the Children's Wishes; Private Interviews with a Judge or Assessment by an Expert and Report" (1976), 23 R.F.L. 1 2. Bersoff feels that children are most affected by divorce because they stand to lose the salutory effects of an intact family. Bersoff, "Representation for Children in Custody Decisions - A l l that Glitters i s not Gault" -(1976), 15 J. Fam. L. 27, at PP. 36-37. 3. e.g., see the comments of a New Jersey Family Court Judge in Devine. "A Child's Right to Independent Counsel in Custody Proceedings : Providing Effective 1 Best Interests' Determination Through the Use of a Legal Advocate," (1975),.6 Seton Hall L. Rev. 303, at P. 312. Also see Chisholm, supra, footnote 1. 4. Indeed, Mnookin, after an exhaustive examination of the alternatives, concluded that the abandonment of , adjudication for the resolution of private custody disputes was unlikely. Also see Foster., "Tr i a l of Custody Issues and Alternatives to the Adversary Process", in Baxter and Eberts (eds.), "The Child and the Courts" (1978), 55. 5. In the words of Foster and Freed : "This matter of independent representation by counsel, so that children have their own lawyer when their disposition or welfare i s at stake, i s the most significant and practical reform that can be made in the area of children and the law. Given our predilection for the adversary format and the small likelihood that i t w i l l be abandoned in the foreseeable future ... i t i s clear that reform should be directed at making the process functional, and to permit a l l interested parties - including children -to have independent counsel ..." (Foster and Freed. "A B i l l of Rights for Children" (1972), 6 Fam. L.Q. 343 at P. 356). 8 6. The B r i t i s h Columbia Royal Commission on Family and Children's Law i n i t s F i f t h Report, Part i i i , "Children's Rights"/ (1975) at P.' 8, recommends that children should have "the r i g h t to'be consulted i n decisions r e l a t i n g to guardianship, custody and a determination of status", and "the r i g h t to independent adult counselling and le g a l assistance i n r e l a t i o n to" such decisions. 7.4 Foster and Freed, supra, footnote 5, at P. 345.' CHAPTER 2 HISTORICAL BACKGCUND AND THE APPLICABLE STATUTE LAW 9 As i n a l l areas of f a m i l y law, the custody of c h i l d r e n commences with the dominant p o s i t i o n of the f a t h e r . At common law the fa t h e r had the r i g h t to the custody of a l l of h i s l e g i t i m a t e c h i l d r e n , ^ such r i g h t being c o r r e l a t i v e to h i s duty to p r o t e c t the same. .This r i g h t was such t h a t i t was of a q u a s i - p r o p r i e t a r y nature. I t was absolute against a l l the 2 world i n c l u d i n g the mother, and she could not even e s t a b l i s h p r i o r i t y a f t e r the death of the fath e r i f the l a t t e r had 3 appointed a testamentary guardian i n the meantime. However, i n i t s usual fashion equity intervened to soften the impact of the common law. I n i t i a l l y though, such i n t e r v e n t i o n only occurred where there was a danger to the c h i l d ' s l i f e , h e a l t h , and morals, or where the common law r i g h t s of the fath e r were being exercised i n an unreasonable and a r b i t r a r y manner. 4 I t was not u n t i l much l a t e r that equity e s t a b l i s h e d the p r i n c i p l e that the welfare of the c h i l d was the dominant c o n s i d e r a t i o n . The j u r i s d i c t i o n p e r m i t t i n g e q u i t y to intervene o r i g i n a t e d from the pr e r o g a t i v e power of the Crown as parens 5 p a t r i a e to pr o t e c t any person who was not f u l l y s u i j u r i s . A c c o r d i n g l y , equity thought nothing of di s r e g a r d i n g the common law r i g h t s of the f a t h e r i f such was necessary i n the i n t e r e s t s 10 of the c h i l d . In the words of Lord Esher M.R. in R v Gynqall : "The Court i s placed in a position by reason of the prerogative of the Crown to act as supreme parent of the c h i l d , and must exercise that j u r i s d i c t i o n i n the manner i n which a wise, affectionate, and carefui parent would act for the welfare of the c h i l d . The natural parent in the p a r t i c u l a r case may be affectionate, and may be intending to act for the child's good, but may be unwise,'and may not be doing what a wise, affectionate, and careful parent would do. The Court may say i n such a case that, although they can find no misconduct on the part of the parent, they w i l l not permit that to be done with the c h i l d which a wise, affectionate, and careful parent would not do. The Court must, of course, be very cautious i n regard to the circumstances under which they w i l l i n t e r f e r e with the parental r i g h t . i . v i The Court must exercise this j u r i s d i c t i o n with great care, and can only act when i t i s shown that either the conduct of the parent, or the description of person he i s , or the position i n which he i s placed, i s such as to render i t not merely better, but - I w i l l not say 'essential',' but -c l e a r i y r i g h t for the welfare of the c h i l d i n some very serious,and important respect that the parent's r i g h t s should be suspended or superseded; but ,v<.i where i t i s so shown, the Court w i l l exercise i t s j u r i s d i c t i o n accordingly." Equity even went as far as granting an injunction to 7 ; r e s t r a i n an application for a writ of habeas corpus , and preventing a person who had already obtained a writ from Q i n t e r f e r i n g with the c h i l d . I t did not, however, provide the mother with p o s i t i v e rights to the custody of her children. This was l e f t to Parliament, and since the middle of the nineteeth century i n England there has been a mass of l e g i s l a t i o n enacted affecting 1 1 the r i g h t s and duties of parents.' Yet, i t was not u n t i l the Q Guardianship Act, 1 9 7 3 , that the process of assimilating the parents' l e g a l position was completed by providing that i n r e l a t i o n to the custody of a c h i l d the mother had the same rights and authority as the father.' I t should now be apparent why i t has been so d i f f i c u l t for the law to s h i f t i t s focus from the parents and concentrate on the children. I n i t i a l l y the law talked s o l e l y i n terms of the father's r i g h t s , and then l a t e r , i n terms of affording the mother equal rights and authority. This emphasis, together with society's conception of the child's place i n the home, e f f e c t i v e l y kept children i n the background. A l l Canadian j u r i s d i c t i o n s have followed England i n the development of the i r c h i l d adjudication laws."1"^ Unfortunately though, the relevant l e g i s l a t i o n i s fragmented and exists at two l e v e l s , the Federal l e v e l and the P r o v i n c i a l lev e l . : This i s ostensibly because of the arrangement of powers under the B r i t i s h North America Act, 1 8 6 7 (Imp.), pursuant to which the Dominion Parliament has l e g i s l a t i v e authority over "marriage and divorce",'*'"'" and each P r o v i n c i a l Parliament has l e g i s l a t i v e 1 2 power over "the solemnization of marriage", "property and i o - ' = 1 4 c i v i l r i g h t s " and the "administration of justice".! 12 The l e g i s l a t i o n enacted at the Federal l e v e l i s the ';15 Divorce Act, 1968.' This Act provides, i n t e r a l i a , for orders to be made for the "custody, care and upbringing of the children of the marriage" a n c i l l a r y to proceedings for divorce. Section 10 (b) of the Act provides for an interim order to be made according to what the Court considers i s " f i t and j u s t " . Section 11 ( l ) empowers a Court, upon granting a decree n i s i of divorce, and " i f i t thinks i t f i t and just to do so having regard to the conduct of the parties and the condition means and other circumstances of them", to make "an order providing for the custody, care and upbringing of the children of the marriage". Section 11 (2) then permits the variation or r e s c i s s i o n of an order i f the Court "thinks i t f i t and just to do so having regard to the conduct of the parties since the making of the order or any change i n the condition, means or other circumstances of either of them". F i n a l l y , Section 12 .(b) allows the Court to "impose such terms,' conditions or r e s t r i c t i o n s as the Court-thinks f i t and just" when making an order pursuant to Sections 10 or 11.' The term "children of the marriage" i s defined i n Section 2 of the said Act to mean "each c h i l d of the husband and wife who at the material time i s (a) under the age of sixteen years, or 13 (b) sixteen years of age or over and under t h e i r charge but unable, by reason of i l l n e s s , d i s a b i l i t y or other cause, to withdraw himself from their charge or to provide himself with necessaries of l i f e . " " Child" of a husband and wife i s i n turn defined to include "any person to whom the husband and wife stand i n loco parentis and any person of whom either of the husband or the wife i s a parent and to whom the other of them stands i n loco parentis." The Federal Government has not yet seen f i t to test i t s powers f u l l y under the Constitution, and introduce l e g i s l a t i o n dealing with questions of custody independent of divorce. I t i s indisputable that the interests of a l l concerned would be best served by comprehensive l e g i s l a t i o n existing at one l e v e l only, rather than at present, where to which court you go, and which l e g i s l a t i o n governs, depends on whether the application for custody i s a n c i l l a r y to divorce or not. There i s also a precedent i n the Australian Family Law Act, 1975 as amended, for setting up a Federal Court with j u r i s d i c t i o n to entertain custody applications independent of divorce. The arrangement of powers between the Commonwealth Government and the State Governments i n the Australian Constitution!).,is not di s s i m i l a r from the Canadian position, the Commonwealth Government i n Aus t r a l i a having power to l e g i s l a t e i n respect -19 of "marriage".' Accordingly, the way may be open for the Canadian Federal Parliament to take th i s step. However, Parliament has shown no i n c l i n a t i o n to l e g i s l a t e comprehensively i n thi s f i e l d , 14 preferring to place pressure on the Provinces to i n s t i t u t e l e g i s l a t i v e reform. Perhaps the Federal Government has been off-put by the hard fought battles to j u s t i f y Sections 10 and 20 11 of the Divorce Act, 1968 as being i n t r a v i r e s . More l i k e l y though, i s the fear of stepping on the toes of some Provinces, p a r t i c u l a r l y Quebec, which has an altogether 21 d i f f e r e n t s o c i a l and family structure. The major piece of P r o v i n c i a l l e g i s l a t i o n i n B r i t i s h Columbia i s the Family Relations Act, 1978.' This statute allows for a custody or access application to be made quite independently of divorce proceedings. In fact, an order can be made pursuant to t h i s Act i f divorce proceedings are 23 unsuccessful. Pursuant to Section 35 ( l ) of the said Act a Court can order that "one or more persons may exercise custody over a c h i l d or have access to the c h i l d . " 24 In addition, Section 35 (4) authorizes the Court to include i n an order for custody or access such terms and conditions as i t "considers necessary and reasonable i n the best interests of the c h i l d . " A c h i l d i s defined i n Section 1 as meaning a person under the age of nineteen years. The key section of thi s Act i s Section 24, which provides as follows : " ( l ) Where making, varying,' or rescinding an order under th i s Part, a court s h a l l give paramount consideration to the best interests of the c h i l d and, i n assessing these i n t e r e s t s , s h a l l consider these factors : (a) The.health and emotional wellbeing o f the ch i l d including any sp e c i a l needs for care and treatment; (b) Where appropriate,' the views of the c h i l d ; (c) The love, affection and similar t i e s that exist between the ch i l d and other persons (d) Education and training for the ch i l d ; and (e) The capaeity'of each person to whom guardianship, custody,1 or access rights and duties may be granted to exercise these rights and duties adequately; and giye emphasis to each factor according to the child's needs and circumstances .UJ ( 3 ) Where the conduct of a person does not subst a n t i a l l y a f f e c t a factor set out i n subsection ( l ) .<.!.•>,. the court s h a l l not consider the conduct i n a proceeding respecting an order under th i s Part. ( 4 ) Where under subsection ( 3 ) the conduct of a person may be considered by a court, the court s h a l l consider the conduct only to the extent that the conduct affects a factor set out i n subsection (1) .v .1 " Interim orders are provided for by Section 9 ( l ) of the Act, and pursuant to that Section such interim orders can be made as the Court considers reasonable.' This i s the extent of the applicable l e g i s l a t i o n i n B r i t i s h Columbia, but i t i s also necessary to emphasise that i n addition to this two-tiered system i t i s beyond doubt that the Supreme Court of B r i t i s h Columbia,' as parens patriae, can exercise inherent equitable j u r i s d i c t i o n over children generally. This power may be invoked by anyone properly before the Court and the Court can award custody to whomever i t pleases 16 Moreover, i t i s p a r t i c u l a r l y useful where there i s no l e g i s l a t i v e authority for either the order sought or the order .,95 proposed by the Court. 1 FOOTNOTES. CHAPTER 2 17 1. R v Howes (1860), 3 E l & E l 332; Re A g a r - E l l i s (1883), 24 Ch. D. 317; Thomasset v Thomasset (1894) P. 295. As regards i l l e g i t i m a t e children though, the father had no such r i g h t (R v Soger (1793), 5 Term Rep. 278; Barnardo v McHuqh (18917 A.C. 388). 2. R v De Manneville (1804), 5 East 221. 3. Tenures A b o l i t i o n Act, 1660. 4. Welleslev v Duke of Beaufort (1827). 2 Russ 1: De Manneville v De Manneville (1804), 10 Ves. 52. 5. Eyre v Countess of Shaftsburv (1722), 2 P. ,Wms.' 103, at P. 118; Hope v Hope (1854). 4 De G.M. & G. 328, at PP. 3 4 4 - 3 4 5 . 6. (1893) 2 Q.B. 232, at PP. 241-242. 7. R v Barnardo. Jones's Case (l89l) 1 Q.B. 194 8. Andrews v Salt (1873) 8 Ch. App. 622 9. 1973, c. 29 (Eng. ) 10. But note that i n New Brunswick the father i s s t i l l adjudged to have a prima f a c i e r i g h t to the custody of the children (Layton v Lavton (1973) 6 N.B.R. (2(d) 68). 11. Section 91 (26) 12. Section 92 (12) 13. Section 92 (13) 14. Section 92 (14) 15. R.S.C., 1970, c. 8 1 6 . However, i t should be noted that the weight of opinion i s i n favour of t h i s l e v e l being the P r o v i n c i a l , rather than the Federal (e.a., see Jordan "Federal Divorce Act (1968) and the Constitution" (1968), 14 McGill L.J. 209). The d i f f i c u l t y with t h i s though, i s that i t would require an amendment to the Constitution to transfer the Marriage and Divorce j u r i s d i c t i o n to the Provinces. 17. The arrangement of powers under the Constitution has not only meant that the l e g i s l a t i o n i s fragmented, but also 18 that the j u r i s d i c t i o n of the courts i s s p l i t . The Provinces have no power to confer upon a p r o v i n c i a l judge any j u r i s d i c t i o n to deal with questions that have usually come within the j u r i s d i c t i o n of the Superior Courts and the County Courts. The judges of these courts are appointed by the Federal Government pursuant to Section 96 of the B r i t i s h North America Act, 1867, and included i n the exclusive j u r i s d i c t i o n of the Superior Courts i s j u r i s d i c t i o n oyer Divorce and Matrimonial Property. Thus, prima f a c i e , one judge cannot be clothed with j u r i s d i c t i o n to deal with a l l aspects of a family dispute. However, i t must be emphasised that t h i s i s a contentious issue and space does not permit a detailed discussion thereof i n this paper. 18. Act No. 53 of 1975 19. Section 51 (xxi) of the Commonwealth of Au s t r a l i a Constitution Act 1901 (63 8. 64 V i c t o r i a , c. 12) 20. The consti t u t i o n a l v a l i d i t y of these sections has been established in the leading cases of Papp v Papp (1970), 8 D.L.R. (3d) 384, Jackson v Jackson (1973), 29 D.L.R. (3d) 641, and Zacks v ZacksTl971). 10R.F.L. 53 21. As the then Prime Minister, Mr. Trudeau, indicated when presenting the Divorce B i l l to Parliament, there was a desire to make the divorce l e g i s l a t i o n r e a l i s t i c a l l y comprehensive without destroying the "current t r a d i t i o n s and laws i n the various Provinces". (Jordan. supra, footnote 16, at P. 268). 22. S.B.C. 1978 c. 22 23. I t has been held i n Papp v Papp. supra, footnote 20, that a custody order can only be made under Section 11 ( l ) of the Divorce Act, 1968 i f a divorce i s act u a l l y granted. 24. c f . the Divorce Act, 1968, where an application for custody or access can only be made by one of the parties to the divorce action, but an order can be made i n favour of a t h i r d party. 25. Re Squire (1974), 16 R.F.L. 264 CHAPTER 3 THE BEST INTERESTS OF THE CHILD 19 "I f the alternatives are side by side, choose the one on the l e f t ; i f they're consecutive i n time, choose the e a r l i e r . I f neither of these applies, choose the alternative whose name begins with the e a r l i e r l e t t e r of the alphabet. These are the p r i n c i p l e s of s i n i s t r a l i t y , antecedence, and alphabetical p r i o r i t y -there are others and they're a r b i t r a r y , but u s e f u l . " ! To many thi s depicts the approach adopted by courts i n determining c h i l d placement. Decisions i n the area are often d i f f i c u l t to reconcile and i t i s hard to establish a consistent l i n e of authority. Inevitably, lawyers and l i t i g a n t s f e e l that the outcome of their cases w i l l depend to a large degree on the luck of the draw as to which judge is.assigned to hear the action. I t a l l seems rather a l o t t e r y , but as we have seen, there i s ostensibly one guiding p r i n c i p l e ; placement i s o determined according to the best interests of the c h i l d . Indeed, the term "in the best interests of the c h i l d " has almost become a household phrase. I t i s used constantly by courts i n their judgements, by commentators i n the i r writings, by b a r r i s t e r s i n the i r submissions, and by the public generally. With a usage of this magnitude i t would be reasonable to expect that l i t t l e c r i t i c i s m could be -levelled at the res u l t s of custody disputes. However, nothing could be further from r e a l i t y . Courts are frequently c r i t i c i z e d for t h e i r assessment of the best interests of the children, even to the extent that the r o l e of the court i n resolving custody matters has been questioned. 20 In determining the best interests of the children a court necessarily has a wide discretion allowing i t to take many factors into account. This discretion i s present even where the relevant l e g i s l a t i o n specifies the factors to which a court must have regard. The paramount consideration i s always the 3 welfare and happiness of the c h i l d , and t h i s i s so no matter how s p e c i f i c the l e g i s l a t i o n may be.' No..other factor can over-ride t h i s p r i n c i p l e . In the words of Lord MacDermott i n the celebrated House of Lords' decision of J v : " I t seems to me that (the words, 1 s h a l l regard the welfare of the infant as the f i r s t and paramount consideration') must mean more than that the child's welfare i s to be treated as the top item in a l i s t of items relevant to the matter i n question. I think they connote a process whereby, when a l l the relevant facts, relationships, claims and wishes of parents, r i s k s , choices and other circumstances are taken into account and weighed, the course to be followed w i l l be that which i s most i n the i n t e r e s t s of the child's welfare as that term has now to be understood. That i s the f i r s t consideration because i t i s of f i r s t importance and the paramount consideration because i t rules upon or determines the course to be followed." There are obviously many factors which make up the welfare of a c h i l d . For instance : " I t means the material well-being of the children equally with t h e i r psychological and s p i r i t u a l w e l l -being; i t means that t h e i r need for food and clothing and shelter i s to be given consideration i n conjunction with t h e i r r e a l need for love and affection and parental care and t r a i n i n g . I t means the development of a young human being."5 However, history has shown that d i f f e r e n t factors are emphasised at d i f f e r e n t times according to society's pr e v a i l i n g mores and 21 the l e v e l of comprehension of c h i l d development. For example, i n the nineteenth century, s o c i a l and moral values held sway .7 i n custody disputes, while today the trend i s to emphasise the Q psychological well-being of the c h i l d . This change i n emphasis i s f a c i l i t a t e d by the use of a vague test such as the best interests of the c h i l d , and one wonders whether the current push to l e g i s l a t e comprehensive guidelines for courts i s wise.; I t may prevent necessary changes i n emphasis by putting into Q permanent form the values of contemporary society. The argument oft-used i n promoting fixed guidelines i s that many judges and lawyers are t o t a l l y unfamiliar ••- with the requirements of custody adjudication, contrasting as i t does with the kinds of determinations usually required of c o u r t s . 1 ^ S p e c i f i c statutory directions would s p e l l out the s o c i a l p o l i c y to be applied and would serve as a basis for negotiating settlements."'""'' However,' the question that needs to be answered i s whether i t i s possible to provide adequate guidelines. 1 C r i t i c s of the existing method of determination are concerned at the width of the discretion reposed i n judges, arguing that the 12 process i s too speculative. Yet, the guidelines that are suggested are generally vague i n themselves and do no more than state the obvious. 1 3 One commentator, Mnookin, 1 4 has recognised the problem. He postulates that the determination of what i s 22 "best" or "least detrimental" for a p a r t i c u l a r c h i l d i s usually indeterminate and speculative because existing psychological theories do not allow confident prediction of the effects of alternate custody dispositions, and because society lacks a clear-cut consensus about what values should inform the •15 determination of what i s "best" or " l e a s t detrimental". These underlying reasons for the indeterminacy i n turn render-the formulation of rules especially problematic. Indeed, after an extensive survey, Mnookin concludes that there i s no alternative which i s " p l a i n l y superior to adjudication under the indeterminate best interests p r i n c i p l e . " However, this i s not the only d i f f i c u l t y with l e g i s l a t i n g 1 7 guidelines. Professors Gosse and Payne highlight the circumstance that, even assuming an acceptable l i s t of factors can be found,: i t must be determined whether the same should be 18 exclusive or i n c l u s i v e . They argue as follows : "I f i t were to be i n c l u s i v e , then there would,be unspecified matters that could be looked to On the other hand, a l i s t of factors which were to be exclusively considered could have greater drawbacks. I t would be essential for such a l i s t to be drafted so as to cover a l l the desirable factors for consideration. Judges would be confined to the s t r i c t terms of the statute and consequently interpretation problems could give r i s e to what would be (an undesirable number of appeals. In addition, 1 the l i s t i n g of factors might create a tendency to give these factors equal weight when in the circumstances of p a r t i c u l a r cases, such equal weight w i l l seldom,"' i f ever, be warranted." 23 Nevertheless, despite these drawbacks, both commentators and l e g i s l a t o r s have proceeded apace in formulating statutory guidelines. With some, the aim i s to ensure that at least the . judge reviews those factors deemed to be important, even i f -19 they are not meant to be exclusive.] Even Gosse and Payne 20 conclude that i t i s preferable to have statutory guidelines, and t h e i r ^proposal was picked up by the Law Reform Commission of Canada i n i t s Report on Family Law (l976).i Examples of recent Canadian l e g i s l a t i o n setting up guidelines can also be 22 "323 found i n B r i t i s h Columbia and Ontario, 1 although one notable exception i n the l a t t e r province i s Section 35 ( l ) of the Family ..=,94 Law Reform Act, 1 1978.1 That Section simply directs placement i n accordance with the child's best i n t e r e s t s . Interestingly though, the courts have divided i n t h e i r application of t h i s Section, some holding that the factors to be taken into account 25 are the same as under previous l e g i s l a t i o n , others holding ~26 that common law p r i n c i p l e s continue to apply, and s t i l l others holding that a fresh and modern approach to family law i s required.. However, whether these attempts to provide guidelines w i l l lead to less indeterminacy and less speculative decisions i s debatable, and I suggest that c h i l d placement w i l l continue ... 90 to be a highly i n d i v i d u a l i s e d determination. 1 A rather unfortunate consequence of t h i s approach i s 24 that although the bottom l i n e i n any custody dispute i s that the best interests of the c h i l d p r e v a i l , courts have sometimes allowed other considerations to v i t a l l y a f f e c t t h e i r decisions^ They do t h i s by treating them as factors to be looked at i n addition to the welfare of the c h i l d , instead of regarding them as factors to be weighed i n assessing how the best int e r e s t s of the c h i l d can be served. Generally, these considerations are centred around the conduct of the parents and the concept of parental r i g h t s , which highlights the i n a b i l i t y of courts to appreciate the special nature of the problem confronting them and the need to r i d themselves of the p a t e r n a l i s t i c notions of the past. 1 PARENTAL RIGHTS I t i s a t r a i t of areas of the lawwhere courts are provided with an extremely wide discretion for presumptions to be 29 developed i n order to provide some guidance. This i s ce r t a i n l y the case i n the law r e l a t i n g to the custody of children,' and p a r t i c u l a r l y so because of the need to of f s e t the paucity of evidence that i s presented by the feuding parents concerning what i s ac t u a l l y i n the best interests of the child,! The danger though,' i s that the presumptions may develop into ; 3 0 hard and f a s t p r i n c i p l e s . For example,1 the concentration by 25 courts on parental r i g h t s produced the presumption that i n custody disputes between a parent and a stranger the natural parent prevailed unless the l a t t e r ' s behaviour was of such a nature that i t would be improper to leave the c h i l d with him or her. As I have indicated, greater stress was placed on t h i s 3 1 p r i n c i p l e than on the best interests of the c h i l d . This anomaly was compounded i n many cases by the fac t that often the subject c h i l d had been i n the de facto care and control of t h i r d p a r t i e s , such as foster parents, for s u f f i c i e n t time to create strong bonds of affection between them. Yet, courts would cast aside the possible deleterious effects of returning the c h i l d to the natural parent in the name of 3 2 preserving the family unit and i t s blood t i e s . However, the welfare of the c h i l d i s gradually gaining dominance over th i s presumption and the trend was given a 33 healthy boost i n England by the House of Lords in J v C; There, the court held that the best i n t e r e s t s of the c h i l d demanded that he be l e f t with foster parents rather than be returned to his natural parents. In Canada the approach of the 34 House of Lords was taken up i n Re Moores and Feldstein et a l . 3 5 There, Dubin J.A. said t h i s "I f i n d i t d i f f i c u l t to approach a custody case by adhering to a formula. As pointed out by Megarry J . i n the case of Re F (An Infant). (1969), 3W.L.R. 165, in cases such as these, the court is. dealing with the li v e s of human beings and these cannot be regulated by 26 forumulae ... Although i n most cases i t i s to be expected that a c h i l d w i l l benefit by the t i e s of affection of a parent and what natu r a l l y flows from i t , that must be a question of f a c t i n every case, and I do not think that I am bound by precedent to proceed on the assumption that i t i s i n e v i t a b l y so." After having regard to a l l the circumstances i n the case at hand he then concluded : "Considering the welfare of the c h i l d i n i t s broadest aspect and giving due consideration to the f a c t that i t i s the mother who i s now seeking her return, i n my view, the welfare of t h i s c h i l d w i l l best be served i f l e f t i n i t s present happy surroundings, and I have concluded that the t i e of affection of a mother to a c h i l d i s not the overbalancing consideration i n this case."3' However, this has been far from the end of the matter because there i s a d i f f i c u l t y i n courts applying Re Moores and Feldstein. I t i s only a decision of the Ontario Court of Appeal, whereas the relevant Supreme Court of Canada authority op i s Hepton v Maat, a case which espoused the presumption i n favour of the natural parent i n the strongest of terms. Dubin J.A. i n Re Moores and Feldstein attempted to dispose of t h i s case by saying that the court was r e a l l y applying the best int e r e s t s test, and the natural parent happened to succeed on 39 the particular, f a c t s . However, t h i s interpretation does not square with the clear statements of p r i n c i p l e made by the Supreme C o u r t . 4 0 Thus, there i s some doubt as to the ef f e c t that Re Moores and Feldstein has on Hepton v Maat, and this i s r e f l e c t e d i n the subsequent case law. On the one hand there are cases such as Re S q u i r e 4 1 and C.A.C. v F.D.R.42 which welcomed Re Moores and Feldstein with open arms and treated i t as the 27 43 leading current authority, but on the other hand, some courts have either deferred to the binding authority of Hepton v :eir 46 44 45 Maat. attempted to distinguish Re Moores and Feldstem. or simply resurrected the language of the Supreme Court. The most l i k e l y r e s u l t of thi s j u d i c i a l c o n f l i c t i s that the use of the best interests p r i n c i p l e w i l l p r e v a i l , 4 * 7 however, some commentators would view th i s as an unfortunate development. I t i s recognised that the need to make a choice between prospective custodians i n most cases comes close to over-whelming human powers of prediction and judgement. Rational guidelines are essential to ease the t r i a l judge's burden. The question though, i s where are these to come from. The most l o g i c a l resource would be the behavioural sciences, but unfortunately i t has been demonstrated that the same are not always able to provide the judge with s u f f i c i e n t relevant data 48 to inform his decision. Accordingly there has been a c a l l for a return to the use of presumptions, such as the parental r i g h t 49 p r i n c i p l e , u n t i l empirical research can provide a better method. There i s no doubt that a presumption i n favour of the natural 50 parent renders a judge's task less burdensome. I t i s much easier to establish b i o l o g i c a l parenthood than to enter into an 51 investigation of the child's psychological t i e s . Of course though, the professionals a l l f e e l that Re Moores and Feldstein i s the best approach, and they have 28 recognised i t as "a land-mark decision .•.!. not only because i t extend(ed) the principle that the welfare of the child i s the paramount consideration to be considered in custody disputes between parent and non-parent,* but because i t consider(ed) the welfare of the child apart from the wishes of the natural parent." 5 2 Behavioural scientists have been saying for a long time now that biological relationships are not determinative of the welfare of children. 5 To a child i t matters not whether the person providing the necessary love and attention i s the natural parent or a stranger in blood, the important aspect i s that there i s a strong attachment between the child and that -53 care-giver.1' - It i s just as traumatic to the child for this attachment to be broken where the care-giver i s a stranger in blood as i t i s where the care-giver i s the natural parent.' Yet, the question can s t i l l be asked whether i t i s appropriate to interfere with the relationship between a child and i t s natural parent;' In the community of professionals i t i s easy to say that a child should be placed with i t s psychological parent without regard to biological ties. ; However, outside this community there i s a conservative element in society which views the natural family as the mainstay of society. The concern i s that i f the relationship between natural parent and child can be easily disturbed,1 great inroads can be made into family solidarity. 1 There are many people who would say that the State should not interfere with the family and that 29 the law ought to preserve the same against professional 54 int r u s i o n . However, the trend towards the professional takeover of the family continues, enhanced as i t i s by the indeterminacy of the best interests t e s t . The celebrated authors, Goldstein, Freud and S o l n i t are the chief proponents of the concept of psychological parent-55 hood, and i t i s perhaps appropriate at this stage to consider their theories. Indeed no discussion of the concept of the best i n t e r e s t s of the children would be complete without reference to t h e i r work.^ The i n i t i a l c r i t i c i s m made by the authors i s that courts concentrate on the child's physical well-being as a guide to placement in,preference to the child's psychological well-being They charge that courts have been slow i n recognising the necessity of safe-guarding t h i s aspect of a child's make-up, primarily through a lack of understanding of the same. A c h i l d develops an emotional attachment to an adult through day to day i n t e r a c t i o n , companionship and shared experiences. This adult can be a b i o l o g i c a l parent or any other care-giver, but i t must be remembered that a b i o l o g i c a l 57 parent i s not necessarily a psychological parent. Children need a psychological parent for t h e i r emotional 30 58 development and they should have the opportunity of being placed with a person or persons l i k e l y to become such a parent. On t h i s basis the authors propound three component guidelines fo r decision makers. ( i ) Placement decisions should safeguard the child's need for continuity of relationships. This i s now generally accepted by 59 p r a c t i t i o n e r s of the behavioural sciences and i t i s an important factor in custody disputes where an attempt i s made to a l t e r a long-standing custodial arrangement or where there has been a pre-existing de factoy. custodial s i t u a t i o n . Both continuity and s t a b i l i t y are important for a child's normal development, and disruptions w i l l have serious effects on the same. The authors consider that s t a b i l i t y of environment i s necessary to o f f s e t the i n t e r n a l i n s t a b i l i t y experienced by a developing c h i l d . He or she may not be able to cope with both i n t e r n a l and external disruptions. Naturally though, disruptions of continuity evoke d i f f e r e n t reactions and consequences at d i f f e r e n t stages of development. The authors recognise t h i s , but instead of looking at developmental levels they f a l l into the trap of using age groupings to i l l u s t r a t e these differences. The catch i s that age i s an extremely unreliable c r i t e r i o n from which to draw conclusions that w i l l be relevant to children-at-large. In any event, the groupings i d e n t i f i e d are as follows: infancy - from b i r t h to 18 months; young children under the age 3 1 of 5 years; school-age children; adolescence; and adults (who as children suffered from disruptions as to continuity). 1' Now, although the effects differ," the common thread running through these groups i s that a l l suffer adverse reactions from a disruption of continuity.' One conclusion which the authors come to i s that multiple changes in the child's relationships, surroundings, 65 and environmental influences must be avoided. From th i s i t i s argued that, unlike the present s i t u a t i o n , c h i l d placement should be f i n a l and un-conditional. : However, th i s i s an unacceptable proposition. 1 Not only does i t assume that the court w i l l i n v a r i a b l y make the r i g h t choice, but that that choice w i l l remain v a l i d throughout the child's minority. Admittedly, i t may be possible for the f i r s t assumption to become a r e a l i t y i f courts were more receptive to the child's wishes and evidence from the behavioural sciences. However, even given the detrimental effects of a l t e r i n g a long standing custody arrangement, I doubt the f e a s i b i l i t y of the second assumption. The authors are r e a l l y suggesting that because l i f e i s so uncertain the law should opt out and simply allow the •66 private ordering of interpersonal r e l a t i o n s h i p s . Yet,' i t seems to me that i t i s p e c u l i a r l y within the province of a court as parens patriae to promote the welfare of a c h i l d by catering i67 for changed circumstances.' 32 A l l i e d to this proposal of f i n a l i t y of placement i s an 68 aspect that I w i l l touch on l a t e r , namely, that the question of access should be l e f t e n t i r e l y to the discretion of the custodial parent.' In my experience access causes so many heartaches that I have some sympathy with t h i s proposal.! Yet, there are many inherent d i f f i c u l t i e s and disadvantages a l l the same. The proposal not only ignores the other parent, 1 but also the weight of evidence concerning the effects of parental deprivation. 1 There w i l l also be a temptation towards blackmail,' extortion and imposition i f the non-custodial parent wants to maintain contact with the child.' Accordingly, the disadvantages may outweigh the advantages.1 ( i i ) The second guideline i s that placement decisions should r e f l e c t the child's and not the adult's sense of time. I t i s argued that a c h i l d experiences a time period according to his or her purely subjective feelings and not according to i t s actual duration. Thus a c h i l d , depending on his or her age or maturity l e v e l , may be unable to anticipate the future and manage delay i n the way that adults can. Accordingly, i n a custody dispute i t i s necessary to reachaccecision promptly i n order to maximize the child's chances of restoring s t a b i l i t y to an existing r e l a t i o n s h i p , or of establishing a new psycho-l o g i c a l relationship.' This i s a laudable objective,' but 70 i n v a r i a b l y court time i s limited and delays occur.1 The answer here l i e s with the persons responsible for s t a f f i n g the courts and administering the same. 3 3 ( i i i ) The t h i r d guideline i s that account must be taken of the law's incapacity to supervise interpersonal r e l a t i o n s h i p s , and the l i m i t s of knowledge to make long-range predictions. The authors consider that a l l the law can do i s provide an environment for relationships to develop/ Private ordering of the relationship-;then takes over and there i s no place for State intervention. The v i c i s s i t u d e s of l i f e are too great. However, I again stress that t h i s i s not a v a l i d argument for preventing a court from a b r i t r a t i n g on changed circumstances. Such a j u r i s d i c t i o n i s e s s e n t i a l to preserve the best interests of the c h i l d . Here though, the authors have h i t upon the crux of the ,71 problem of c h i l d placement. In t h e i r own words, "no-one - and psychoanalysis creates no exception - can forecast just what experiences, what events,' what changes a c h i l d , or for that matter his adult custodian w i l l a c t u ally encounter.^ Nor can anyone predict i n d e t a i l how the unfolding development of a c h i l d and his family w i l l be r e f l e c t e d i n the long run i n the child's personality and character formation." 7 2 I f these things could be done then a l l custody disputes would be e a s i l y resolved. In the meantime, the most that can be achieved i s to ensure that the decision-maker i s placed i n the best position possible for rendering judgement.' In my opinion t h i s entails the use of independent counsel, 1 and, i n t e r e s t i n g l y enough the authors too consider that such counsel i s indispensible i n determining c h i l d placement. 34 The o v e r a l l guideline proposed by the authors i s "the least detrimental available alternative for safe-guarding the child's growth and development." This i s to be used i n l i e u of the "best i n t e r e s t s " p r i n c i p l e and i t has as i t s major components the three guidelines discussed above. I t i s "that s p e c i f i c placement and procedure for placement which maximizes, i n accord with the child's sense of time and on the basis of short-term predictions given the limitations of knowledge,- his or her opportunity for being wanted and for maintaining on a continuous basis a rel a t i o n s h i p with at least one aglult who i s or w i l l become his psychological parent" The p r i n c i p a l reason for the authors' r e j e c t i o n of the current prevailing c r i t e r i o n i s t h e i r f e e l i n g that the same i s too adult-centred. Often the child's i n t e r e s t s are placed i n di r e c t competition with, and even subordinated to, the inter e s t s of the l i t i g a n t s . Although l i p - s e r v i c e i s paid to the p r i n c i p l e , decisions are fashioned to s u i t the requirements of the parties. 1 This, coupled with the delays inherent i n the 74 court process of t r i a l and appeal,' and the lack of adequate knowledge concerning a child's development, create a sorry picture indeed of c h i l d placement. Yet,' although I agree that these defects exist, I wonder whether i t i s not better to remedy the same and allow "the best i n t e r e s t s " p r i n c i p l e to operate i n a conducive environment rather than look to an e n t i r e l y new p r i n c i p l e which may i n time be plagued with similar underlying problems.; Frankly, i f the concentration i n using the existing p r i n c i p l e i s i n fac t on the best interests of the 35 child, 1 then i n many cases there w i l l be no difference between the guidelines/ The court must s t i l l make a decision well knowing that there are po t e n t i a l dangers and disadvantages to the c h i l d whether custody i s given to the mother, the father or a t h i r d party. The approach suggested by the authors appears to create the impression of defeatism from the outset.' The court would be saying that the proper environment for the child's upbring-ing has been l o s t and the task at hand i s to choose the lesser of two e v i l s or, where applicable, the least of a number of e v i l s . Although t h i s may not be a substantive reason for rej e c t i n g the c r i t e r i a , I f e e l i t i s a v a l i d c r i t i c i s m given the need to look p o s i t i v e l y towards the child's future. I ndeed, what i s wrong with the aim of doing good? The authors suggest that courts lose t h e i r way attempting to ascertain where the best in t e r e s t s of a c h i l d l i e , instead of setting t h e i r sights lower by looking at the available alternatives and choosing which w i l l cause the least harm to the c h i l d . Yet, I f a i l to see how courts w i l l f i n d t h i s l a t t e r exercise any easier; a choice s t i l l has to be made and the same factors need to be considered.' There i s no magic i n framing the issue as prevention of harm instead of promotion of best i n t e r e s t s . In 7 5 the words of Mnookin : "What i s psychologically least detrimental w i l l ; usually be no more determinate for expert and nonexpert a l i k e 36 than what i s i n a child's best i n t e r e s t s ; and to reframe the question i n a way that i n v i t e s predictions based on the use of labels and terminology developed for treatment i s both demeaning to the expert and corrupting for the j u d i c i a l process. i M76 In summary, although I consider the aims of the authors to be sound,- namely to have c h i l d placement depend e n t i r e l y on consideration for the child's own inner situation and developmental needs, I remain unconvinced of the need to introduce a new guideline.' With a l i t t l e e f f o r t the "best i n t e r e s t s " p r i n c i p l e can be i d e a l l y suited to the resolution of a custody dispute. Not unnaturally the theories expressed by the authors have attracted other c r i t i c i s m s from commentators i n various " 7 7 7 8 d i s i p l i n e s . 1 One l i n e of attack i s that the authors have only made use of a limited range of s o c i a l science material, and that what they have considered has been accepted too r e a d i l y without appreciating opposing views. In p a r t i c u l a r , i t has been 7 9 pointed out that there i s controversy amongst s o c i a l s c i e n t i s t s about whether i t i s separation per se or the r e l a t i v e deprivation that often follows separation which i s harmful to children. The authors have accepted the former without mentioning t h i s controversy. I suppose though, i t again becomes a question of whether the law r e l a t i n g to c h i l d placement should be enveloped by p s y c h i a t r i c and psychological theory. The behavioural s c i e n t i s t s w i l l answer i n the 37 affirmative, but Parliament, the courts and the l e g a l profession w i l l balk at t h i s suggestion, and perhaps the authors appreciated this point only too well. I t i s a question of finding the happy medium between theory and the s o c i a l sciences. In my view the closest to thi s i d e a l i s for courts to say to the s o c i a l s c i e n t i s t s , you provide us with the evidence and we w i l l evaluate and apply the same to the p a r t i c u l a r facts. 80 The distinguished j u r i s t Henry H. Foster J r . has also taken the authors to task for being too i n f l e x i b l e with t h e i r presumptions, andf or not allowing any leeway for exceptional circumstances. He agrees with most of the content, but B1 considers t h a t there i s "a case of o v e r s e l l " . He says : "The authors ... i n their promulgation of absolutes overlook humane considerations and ignore the weighing and balancing process which i s the essence of the law. "82 Foster considers that courts w i l l have d i f f i c u l t y both i n accepting the absolutes advanced by the authors and in dealing with the psychological evidence presented. He questions whether the approach might not flounder, given that courts only have a limited capacity to adjudicate upon c o n f l i c t i n g and controversial p s y c h i a t r i c o p i n i o n . ^ 4 Yet another commentator has v a l i d l y c r i t i c i s e d the book for f a i l i n g to consider the p o s s i b i l i t y that healthy 38 t r a n s i t i o n s can occur from one "psychological parent" to another, and indeed for f a i l i n g to recognise the p o s s i b i l i t y that a c h i l d might maintain more than one psychological r e l a t i o n s h i p . Nanette.Dembitz, a judge of the Family Court of New York State perhaps foreshadowed the scepticism that the j u d i c i a r y 86 have for the authors' theories when she wrote : "the mission of (the) authors .... i s to provide guidelines based on psychoanalytical theory to govern the judge's decision i n a l l types of c h i l d placement cases, the promise i s seductive but impossible; the authors f a i l to devise useable scales because the amalgams of factors to be R 7 apprised in custody contests are too complex." In company with most other c r i t i c s she feels that concentration on the need for continuity i s laudable but one should not ignore the necessity for weighing continuity against competing , , 88 values. The most important indicator though, of the p r a c t i c a l worth of a fresh approach i s the attitude of the courts. Here, there have only been sporadic examples of courts u t i l i z i n g the 89 authors' approach, even i n the United States. . From my own experience i n the Australian j u r i s d i c t i o n judges do not f e e l 90 that there i s much difference between the two p r i n c i p l e s , given that i n the majority of cases there are dangers and disadvantages whoever i s awarded custody. Accordingly, the concept of the least detrimental alternative i s r a r e l y , i f ever, referred to. However, i f the book does nothing else i t should 39 awaken courts to the needdto pay more attention to the psychological, needs of children and less to some of the u n r e a l i s t i c assumptions that guide the resolution of custody disputes. CONDUCT OF THE PARENTS By looking at the conduct of the parties i n p a r t i c u l a r , the courts f i n d themselves dealing i n revenge or r e t r i b u t i o n , neither of which should have any part i n c h i l d placement, not even under the guise of administering j u s t i c e to the l i t i g a n t s . The d i f f i c u l t y , though, i s that l e g i s l a t i o n such as Section 11 ( l ) of the Divorce Act, 1968^ 1 s p e c i f i c a l l y provides for the conduct of the parties to be taken into account.1 Yet, this mandate must be taken i n context, 1 and i t i s p e r f e c t l y legitimate, and indeed desirable, for a court to consider conduct of the parties which has a d i r e c t bearing on the assessment of what i s i n the best i n t e r e s t s of the children. This has been made quite clear i n the Family Relations Act,' -,09 1978.1 As we have seen. Section 24 of that Act s p e c i f i c a l l y states that conduct can only be considered by a court to the extent that i t affects one or more of the factors which the court i s directed to consider i n assessing the best interests of the child.' However, the conduct must ."^substantially" a f f e c t 40 a factor before i t can be taken into account. There i s also clear authority i n B r i t i s h Columbia supporting t h i s need for a causal l i n k between conduct and the best interests of the c h i l d r e n . ^ 4 But the d i f f i c u l t y i s that not a l l courts apply t h i s link s t r i c t l y . I t seems that some courts commence from the premise that the welfare of the children i s paramount, then say that every aspect of the conduct of the parties i s relevant i n determining that i s sue and render t h e i r decision on the basis of such conduct as i t effects the l i t i g a n t s . Alternatively,' courts are a l i t t l e more open about t h e i r p r i o r i t i e s and stress that the welfare of the c h i l d i s the paramount consideration but i t i s not the sole 95 consideration. 1 For example, courts have made a great deal of mileage out of the fact that one spouse may be said to have caused the breakdown of the marriage. 1 The argument propounded i s that a c h i l d has a natural r i g h t to be brought up i n a two parent household and that a spouse who .abuses t h i s r i g h t cannot be considered capable of providing for the best i n t e r e s t s of the c h i l d . ' ^ The epitome of t h i s approach i s contained i n the ~97 judgement of Lord Denning M.R. i n the case of Re LJ There he said t h i s : n 7 ' X i whilst the judge i s r i g h t to give great weight tg/the welfare of children and indeed to make i t .1.1.1 the f i r s t and paramount consideration, i t i s not the sole consideration. In t h i s case while no doubt the mother i s a good mother i n the sense of the word,' in that she looks after the children well, 41 giving them love and, as far as she can, security, one must remember that to be a good mother involves not only looking after the children, but making and keeping a home for them with t h e i r father,' bringing up the two children i n the love and security of the home with both parents. In so far as she herself by her conduct ,broke up that home,1 she i s not a good mother /// i t seems to me that a mother must r e a l i z e that i f she leaves and breaks up her home i n t h i s way, she cannot as of r i g h t demand to take the children from the father.' I f the mother i n t h i s case were to be e n t i t l e d to the children, i t would follow that every g u i l t y mother (who was otherwise a good mother) would always be e n t i t l e d to them, for no stronger case for the father could be found. He has a good home for the ch i l d r e n / He i s ready to forgive his wife and ready to have her back/ A l l that he wishes i s for her to return. I t i s a matter of simple j u s t i c e between them that;he should have the care and control. Whilst the welfare of the children i s the f i r s t and paramount consideration the claims of j u s t i c e cannot be overlooked",! With the greatest respect I suggest that "the claims of j u s t i c e " s i m p l i c i t e r of the parties should not be the determining factor i n a c h i l d custody dispute/ The parent most capable of meet-ing the present and future needs of the c h i l d should be awarded custody, regardless of whether that parent has perpetrated an i n j u s t i c e against the other spouse. The court demeans i t s e l f i n taking such a stance and, i n ef f e c t , the c h i l d becomes the prize to be awarded to the unimpeachable parent. Re L has been cited with approval i n many Canadian d e c i s i o n s , ^ but more importantly i t appears to have been picked up by the Supreme Court of Canada i n Talsky v T a l s k y 1 Q Q and MacDonald v MacDonald. 1 0 1 However, to what extent i t i s incorporated i n t o the law of Canada, and the ef f e c t that i t has," i s not e n t i r e l y c l e a r / Neither case treats Re L as laying down 42 a p r i n c i p l e that competes d i r e c t l y with the best i n t e r e s t s of the child,! Rather, the decision i s treated as i n d i c a t i n g that the conduct of a parent as i t affects the welfare of the c h i l d should be taken into account/ Admittedly, the majority i n Talsky v Talsky distinguished Re L on the basis that the conduct of the wife was not of the same order as that of the wife i n Re Ly but the i r conception of where conduct f i t s i n was made clear when they agreed with the t r i a l judge that "a wife who i s 4 well-nigh impossible 1 as a wife may nevertheless be a wonderful mother.i"102 The d i f f i c u l t y though, i s that a l b e i t this i s a more acceptable interpretation of Re L from the point of view of the children, i t i s probably not the correct one.' In f a c t , Lord Denning appears to suggest an additional test along the lines of ensuring j u s t i c e between the partners. Thus, i t i s unfortunate that the Supreme Court chose to refer to t h i s decision at a l l , because i t means that subsequent courts w i l l have to be careful to tr e a t Talsky v Talsky and MacDonald v MacDonald as reading down Re L to a more conservative p r i n c i p l e ; namely, that the conduct of a parent i s relevant to determining the welfare of the c h i l d i n the sense that i t can provide an in s i g h t into how that parent w i l l respond to the exigencies of being the sole custodian. 1 Fortunately, there has already been 103 a subsequent Manitoba case in which t h i s approach was taken, and B r i t i s h Columbian Courts i n p a r t i c u l a r w i l l need to do the •"'104 same i n view of the l i n e of authority referred to above.1; 43 The decision by the Supreme Court to refer to Re L i s even more unfortunate when i t i s R e a l i s e d that not long afterwards that same case was rejected by the Courts i n EnglandfP^ I t was f e l t that Lord Denning's approach could no longer stand i n l i g h t of the subsequent House of Lords decision i n J v C. j 1^ For example, i n Re K. after r e f e r r i n g to that portion of the '108 judgement of Lord MacDermott in J v C reproduced above,* Stamp L.J. said this 109 . "Applying the law so stated the Court of Appeal i n S v S, October 2l'j'! 1975* held that (Re L ) w h e r e t h i s court appears to have balanced the welfare of the c h i l d against the wishes of an unimpeachable parent or the j u s t i c e of the case between the parties was no longer to be regarded as good law." The conduct.of the parties can a f f e c t the welfare of the c h i l d i n many ways.' Indeed, i t may provide the court with an i n s i g h t into the character, personality, and temperament of the p a r t i c u l a r parent. For example, a c h i l d needs the love and aff e c t i o n that can only be provided i n an environment where there i s as much contact between the parent and c h i l d as possible. Thus, i f there was evidence that the parent was r a r e l y at home this might v a l i d l y a f f e c t the court's decision. Again, evidence that one spouse de l i b e r a t e l y broke up the matrimonial home may well indicate that he or she i s ambivalent towards the children of the marriage and places his or her own wishes at the f o r e f r o n t . 1 1 1 0 I t i s r e a l l y a matter for the court, looking at the past and present conduct of the spouse,' and making a judgement as to whether there are any implications 44 for the future i f that spouse was awarded custody.11"'' I f there are such implications, then the court can legitimately have regard to that conduct i n assessing where the best ; L12 inte r e s t s of the children w i l l l i e . ' This approach applies regardless of the type of conduct involved. 1' For example, a circumstance commonly presented to the courts i s the sexual conduct of one spouse1. This can range from a single act of adultery to l i v i n g i n a common law relationship. 1 Yet,1 no matter what the degree of such conduct, i f the same adversely affects the moral welfare of the c h i l d t h i s w i l l weigh heavily against the spouse engaging •113 i n such conduct.' Conversely, i f the court considers that the child's welfare and happiness would best be served i f custody was awarded to the "offending" spouse, then the court should 114 not hesitate. Inroads are even being made into the previously taboo area of homosexuals,- and i t i s i l l u s t r a t i v e to consider the various approaches to this question. In England the House of Lords has recently stated that homosexualism i s not "i n i t s e l f a reason for depriving the parent of access to his or her c h i l d or for holding that such a parent i s unreasonably witholding consent to adoption."115 However,1 t h i s did not prevent the court" from deciding i n the pa r t i c u l a r case before i t that the homosexual father was 45 unreasonably withholding his consent to the proposed adoption. The court was careful to say that the matter had to be decided for reasons which were i n d i v i d u a l to i t and to the parents -1 1 themselves, but the unwillingness of the court to e n t i r e l y l e t go of the t r a d i t i o n a l prejudice against homosexuality i s i l l u s t r a t e d by the following extract from the judgement of 117 Lord Wilberforce : "Whatever new attitudes Parliament, or public tolerance, may have chosen to take as regards the behaviour of consenting adults over 21 i n t e r se, these should not e n t i t l e the courts to relax, i n any degree, the vigilance- and severity with which they should regard the r i s k of the children, at c r i t i c a l ages, being exposed or introduced to ways .of l i f e which, as t h i s case i l l u s t r a t e s , may lead to severance from normal society, to psychological stresses and unhappiness and possibly even to physical experiences which may scar them for l i f e . " As regards the sit u a t i o n i n Canada the f i r s t decision to 118 refer to i s Case v Case.1 There the court considered that homosexuality per se was not a bar to obtaining custody, i t was just one more factor to be taken into account.' However, i n the end r e s u l t the court found against the homosexual parent, one reason being the f a i l u r e of the mother's partner to give 119 evidence. Then there i s the case of K v K where custody of a 6 year old g i r l was awarded to the homosexual mother who was 120 l i v i n g with her partner. Rowe Prov.' J . said this "One must guard against magnifying the issue of homosexuality as i t applies to the capacity for performing the duties of a parent. Heterosexuals produce children who become homosexual and the evidence of the p s y c h i a t r i s t and psychologist i n 46 th i s case did not indicate the odds of becoming or being a homosexual would increase s o l e l y by reason of being reared by a homosexual parent." 121 The court distinguished Case v Case on several grounds : (a) Mrs. K's partner gave evidence and reassured the judge. (b) Unlike Mrs/ Case, Mrs. K. had clear-cut plans for the future care of the c h i l d . (c) Mrs.1 Case had l e f t the c h i l d with the father for a lengthy period of 15 months to pursue an a f f a i r . (d) There was evidence that Mrs. K/ was a better mother than Mrs/ Case. (e) Mr. K,1 used drugs whereas Mr. Case's character and conduct were exemplary.1 (f) Mrs.: K/ was not as active and public a homosexual as Mrs Case. However, one factor which had a v i t a l e f f e c t on the court i n K v K, and which i s borne out i n the above extract from the judgement, was the circumstance that counsel for the mother presented substantial medical evidence which was favourable to his c l i e n t and downplayed the relevance of homosexuality/ Accordingly, t h i s can be an important strategy on the part of counsel acting for a homosexual parent/ Although no authorities were ci t e d , the approach of the ~122 court i n K v K was adopted i n the recent case of D v D.I There, custody was awarded to the homosexual father and one of the p r i n c i p a l grounds for so deciding was that he was not a 47 public homosexual. From this review of the cases i t would seem that although homosexuality i s not a bar per se to an award of custody, the court w i l l s t i l l examine the circumstances surrounding the practices of the homosexual parent very c a r e f u l l y . Yet,' this may not be a bad thing because there w i l l always be a danger of courts overlooking the capacity of the c h i l d to cope with the fa c t of having a homosexual custodian as he or she grows up. In other words too much emphasis can be given to the psychological t i e s between the c h i l d and the 123 parent and not enough to the s o c i a l interests of the c h i l d . Just pausing at t h i s stage, i t can be seen already from the two factors of sexual conduct and causing the breakdown of the marriage how changing s o c i a l mores * can have a v i t a l e f f e c t on the future of a c h i l d . The approach of the judges obviously r e f l e c t s these changes i n the attitudes of society. Courts also face a dilemna where one spouse has kidnapped the c h i l d . The temptation i s t o punish the "offender" by awarding custody to the other spouse, but the court must look beyond this. : One of two situations w i l l be present. Either the abductor i s merely attempting to gain revenge against the other spouse, or the c h i l d i s not being adequately looked after and abduction i s seen as the only alternative, a l b e i t the 43 c h i l d might be affected by such a traumatic experience. I suggest that i n the former case the kidnapper should experience 124 the f u l l wrath of the law, but otherwise i n the l a t t e r instance. I t i s c l e a r l y d i f f i c u l t for courts to turn a blind eye to the actions of a l i t i g a n t , which i n a normal si t u a t i o n would c a l l for some form of r e t r i b u t i o n , p a r t i c u l a r l y where the other party i s beyond reproach. Yet, t h i s i s required i n some disputes concerning custody and i t emphasises the spe c i a l nature of such disputes and the corresponding need for a change of attitude from that pre v a i l i n g i n the t r a d i t i o n a l court room , 3 m 2 ,125 drama.' Of course, the presence of questionable conduct on the part of one spouse i s not the only source of d i f f i c u l t y for a court. Headaches also abound where the conduct of both parties has relevance to the happiness and welfare of the c h i l d . Here, the court i s faced with a r e a l dilemna and, i n ef f e c t , must attempt to place the c h i l d where the least harm w i l l occur. For example, i n the case of Re Mjlsom. the father presented as being overly permissive to a ri d i c u l o u s degree, while the mother lacked the a b i l i t y to project warmth and love, and had d i f f i c u l t y i n suppressing h o s t i l e expression.' Robertson J.A.' highlighted the d i f f i c u l t i e s confronting the court on these facts when he pronounced the r e s u l t of the case i n these 1 97 words : 49 "The better gamble - and that i s r e a l l y a l l that i t I s - seems to be to l e t the father have the custody.'" However, i t i s also important to note that one circumstance which swayed the court to t h i s conclusion was the wishes of the children; each c h i l d gave evidence that favoured the father. Otherwise, the decision may have been d i f f e r e n t . Thus, conduct and parental rights both have their place i n determining the best interests of a c h i l d . Where relevant, they provide content to the assessment of where the best in t e r e s t s l i e , and i n order to further i l l u s t r a t e how courts determine c h i l d placement today I w i l l now look at some of the other circumstances which also provide content to the decision-making process/ FACTORS RELATING TO THE PARENTS ( l ) THE CONDITION AND CAPACITY OF THE PARENTS Although i t i s clear that the prime concentration should be on the children and their needs, they cannot be considered i n vacuo.1 Accordingly, Section 11 of the Divorce Act, 1968 1 2^ also requires consideration of the "condition" of 50 the parties, and Section 24 ( l ) of the Family Relations Act, 130 1978 s p e c i f i e s that the capacity of the spouses must be taken into account.1 As with conduct though, the factors to be considered have to be aligned with the welfare and happiness of the children. This requires regard to be had to such aspects 131 132 as the age and health of the parties, t h e i r character 133 and temperament, t h e i r r e l i g i o u s b e l i e f s , and generally t h e i r 134 position and status i n l i f e and society. The r u b r i c can also encompass such important consider-ations as the a b i l i t y of the parents to d i s c i p l i n e the •135 children,- and provide them with the necessary love and a f f e c t i o n . 1 3 ^ The parents are placed under a microscope by the courts 137 and t h e i r entire l i f e - s t y l e i s examined.1 Indeed, with the stakes so high, a court would be f a i l i n g i n i t s duty i f i t omitted to do this.' I t i s also important to stress that the enquiry i s not confined to the parent i n i s o l a t i o n but, of necessity, includes t h i r d parties with whom the c h i l d would be associating.' This would involve a future surrogate parent, a common law spouse, any children of such a spouse, a housekeeper, a babysitter, and any r e l a t i v e s who may care for the c h i l d . As we have seen, i f the parent i s i n f a c t l i v i n g i n a common law relati o n s h i p the court should not enter-"into the morality of of such an arrangement except to the extent that thei.welfare 51 of the children i s directly affected thereby. The court i s here concerned with whether i t is in the best interests of the children to be exposed to the presence of such third parties. Accordingly, i t is essential that the court have the opportunity to assess these persons at f i r s t hand and they 138 139 should a l l be called as witnesses at the hearing. However, as crucial as i t i,s to examine the life-styles of a l l concerned, i t i s another matter to determine which li f e - s t y l e w i l l afford the child the best opportunity to succeed in the future. This i s the real dilemna for a judge, and i t i s illustrated very well by the much publicised case of Painter v Bannister. 1 4 0 There, the competing parties were the natural father and the maternal grandparents. The former presented a l i f e - s t y l e described by the Supreme Court of Iowa as "unstable, unconventional, arty, bohemian, and probably intellectually stimulating", 1 4 1 while the latter provided a "stable, dependable, conventional, middle-class, middle-west 1 49 background." In the end result, the court decided that the grandparents should be awarded custody because of the likelihood of seriously disrupting the child's development i f he was 143 returned to the father's "unusual" household.. Of course, factors other than the life-styles of the litigants were important here, but the court was essentially left to make a choice between two entirely different philosophies of l i f e . 52 A perusal of the judgement indicates that i n making th i s choice the court allowed i t s own prejudices to influence i t s •144 decision, but i t attempted to j u s t i f y the same by affording great weight to the evidence given by the only behavioural s c i e n t i s t c a l l e d i n the case. However, there were obvious flaws i n his assessment. He was a c h i l d psychologist presented on behalf of the grandparents.' He based his opinions on only a minimal number of interviews with the c h i l d and on what he was to l d by the grandparents. He did not see the father at a l l , 145 and there was l i t t l e meaningful crossexamination. Obviously, th i s was not the way to achieve a s a t i s f a c t o r y resolution of the problem confronting the court. I d e a l l y the judge should have an open mind about what i s best for the c h i l d and reach a decision on an adequate information base. However, the case s t i l l brings into sharp r e l i e f the dilemna i n which a court can f i n d i t s e l f when confronted with diverse l i f e - s t y l e s . (2) THE MEANS OF THE PARTIES The means of the parties could r i g h t l y be considered as j u s t one aspect of the capacity of the parties and, indeed, th i s i s how i t seems to be dealt with i n Section 24 ( l ) (e) of the Family Relations Act, 1978/ 1 4 6 However,' Section 11 of the Divorce Act, 1968 1 4 7 s p e c i f i c a l l y d i r e c t s the court to have regard to th i s factor i n determining what i s f i t and j u s t , and accordingly I have chosen to discuss i t as a separate topic. 53 Courts have taken a very low-key attitude to t h i s aspect. 5 For some reason judges are not taken with the thought of weigh-ing comparative material advantages, 1 4^ yet i t seems to me that the economic i n t e r e s t s of children are as important as the i r emotional well-beini d i r e c t l y from the former. ing. Indeed, the l a t t e r can follow •149 Of course, where both spouses are able to provide an adequate environment for the children, t h e i r placement should not necessarily be determined by asking which parent has the greater wealth. Yet, r a r e l y are both parents able to provide adequate environments, and accordingly the f i n a n c i a l l y superior spouse would appear to have an advantage regarding custody. However, most courts are quick to say that the spouse who has a considerable fortune i s better able to make proper and adequate provision for c h i l d maintenance, and thus, there i s 150 no advantage. On the other hand though, some courts have not been dogmatic about t h i s issue and have treated the circumstance that one spouse can make better f i n a n c i a l provision for the children as relevant when considering the t o t a l i t y of that spouse's situation and the a b i l i t y to meet the best 151 interests of the c h i l d . Certainly, at the other end of the f i n a n c i a l scale, courts have not hesitated to have regard to the fa c t that a parent i s in a poor economic position and i s •J152 therefore unable to provide adequate accommodation.8 54 (3) SEPARATION AGREEMENTS Parents frequently enter into a separation agreement when § family unit dissolves, and generally the question of custody i s dealt with i n such an agreement. Unfortunately though, parents cannot always be r e l i e d upon to give precedence 153 to the best interests of the c h i l d , and the question i s whether i n such circumstances courts are bound by the terms of "154 the agreement. The answer can only be i n the negative. 1 Although the f a c t that one parent has agreed that the other should have custody i s a relevant factor i n i t s e l f , courts should not hesitate to investigate the circumstances surround-ing the agreement i n determining what weight should be attached '155 to i t J This should be the case whether the agreement i s contained i n a written document entered into prior to the court 156 proceedings, or whether i t takes the form of a consent order sought from the court.' The l a t t e r situation i s an important one because i t i s common for parties to s e t t l e t h e i r dispute immediately p r i o r to the actual hearing of the matter. A court should not be hoodwinked into accepting the proposal presented to i t without reaching an independent conclusion that the best int e r e s t s of the c h i l d w i l l be served by making the order sought. To neglect to do this i s to lapse into the f a l s e sense of 157 security created by the notion that parents know best. Invariably'the c h i l d would have had no say i n the settlement reached by the parents, and i t may have been a s i t u a t i o n where 5 5 custody was simply f o r f e i t e d to gain some form of property r i g h t ; i. ;e.V the children merely became part of the bargaining process. However, a l l too frequently courts are prepared to make consent orders without any inquiry whatsoever. Whether t h i s i s complacency, an unwillingness to i n t e r f e r e with the relati o n s h i p of parent and c h i l d , or purely a matter of pressure of court business, i t i s cer t a i n l y lamentable that i t can occur. Indeed,' courts go even further and regul a r l y make statements to the e f f e c t that i t would be much preferable i f the parents were able to resolve the dispute amongst themselves. 1 No c r i t i c i s m can be made of thi s approach i f i t can be assumed that the parents w i l l reach an agreement that i s i n the best interests of the children, and not simply one that suits t h e i r own conveniences, but, as I have suggested, i t i s rare that t h i s assumption can be made. For a c h i l d who i s placed i n a situation which i s detrimental to his or her welfare, there can be no comfort i n the fac t that the same was brought about by a negotiated resolution between the parents, or that he or she i s able to continue a relat i o n s h i p with both of them.' 1 5 9 A court should take one of two courses; i t should either f u l l y investigate for i t s e l f whether the proposed order w i l l best serve the interests of the children, or have the children 56 separately represented and receive submissions on th e i r behalf as to the propriety of the o r d e r . T h e B r i t i s h Columbia Royal Commission on Family and Children's Law appreciated this problem of consent orders. Under Section 10 of Part i v of i t s Draft Model Children's Act, 1976 l 6 i a court can only make a consent order for guardianship, custody and access without taking evidence i f a family advocate and a family court counsellor each c e r t i f y that the child's circumstances have been investigated and that each i s s a t i s f i e d that the terms and conditions are i n the best in t e r e s t s of the child. 1 Unfortunately though, Parliament has not taken th i s up i n the Family Relations Act,' 1 9 7 8 l 6 3 Section 10 of that Act provides that an order can be made without evidence being taken, the only condition being that the written consent of the party against whom- the order i s made must be obtained. Professors Gosse and Payne, i n the i r research paper 164 prepared for the Law Reform Commission of Canada, bring to l i g h t a proposal in thi s area by an unnamed Alberta lawyer who has acted' frequently as amicus curiae in divorce cases. The proposal i s that an administrative t r i b u n a l be established to review custody agreements i n divorce cases.; The tr i b u n a l would be an independent board appointed by the Lieutenant-Governor-in-Council, and consist of a lawyer, a s o c i a l worker and two lay persons appointed from the public at large. Its function would be to conduct an investigation and advise the 57 court whether the c h i l d should or should not have counsel. Frankly,though, I consider such a t r i b u n a l unnecessary when the court i t s e l f can conduct the investigation or, preferably, appoint counsel on the assumption that children require a voice i n any decision that v i t a l l y affects t h e i r future. FACTORS RELATING TO THE CHILD Now we come to where the p r i n c i p a l emphasis i n determin-ing c h i l d placement should always be. However, i t has only been i n recent times that the need to consider the circumstances of. the c h i l d has gained a prominent place in custody l e g i s l a t i o n 1 ^ 5 For example, nowhere i n Section 11 ( l ) of the Divorce Act, 1 9 6 8 , i s there any reference to t h i s need. Accordingly, courts have had to s h i f t the concentration away from the parents and place the same on the children by u t i l i z i n g the c a t c h - a l l provision i n that Section which permits regard to be had to "other circumstances" apart from conduct, condition and means. i f*n The age, health and special requirements of the children have a l l been considered under this rubric. 1 However, prima f a c i e , t h i s may be an u n j u s t i f i e d use of t h i s c a t c h - a l l provision because on i t s own wording the "other circumstances" to be considered are those r e l a t i n g to each of the partie s . Thank-f u l l y though, courts continue to ignore this r e s t r i c t i o n . 58 ( l ) AGE The question of the age of the c h i l d has an in t e r e s t i n g history and i t continues to provide controversy. I t was once considered a p r i n c i p l e of law, or at least a presumption of l a w , 1 ^ that during the years of n u r t u r e 1 ^ a c h i l d should be :170 i n the care of the mother.3 This i s commonly known as the "tender years" doctrine.- C o r o l l a r i e s of the doctrine are that 171 g i r l s of any age should be with t h e i r mothers, and boys over the age of seven years should be i n the custody of the i r f a t h e r s / 1 7 2 Unfortunately, some courts tended to treat t h i s doctrine as i n d i c a t i n g per se what was i n the best interests of the 173 c h i l d , rather than accepting i t for what i t was; one of the many factors to be taken into account i n assessing the welfare of the c h i l d . That this was so was recognised even i n the 174 c l a s s i c case of Austin v Austin. 1 There, Lord Romilly M.R/j, i n expressing the doctrine, stated that a c h i l d would be taken away from the mother i f i t was 175 "essential to the welfare of the c h i l d " / Yet, as I say, courts paid undue homage to the p r i n c i p l e ; at the very least, to the extent of u t i l i z i n g the same where a l l things were equal. Fortunately though, there have been recent pronouncements berating such an approach. I t has been said that the doctrine i s not a rule of law but simply a rule 59 177 of common sense,' and more emphasis has been given to l e g i s l a t i v e directions such as was contained i n Section 5 of -1 7R the former Equal Guardianship of Infants Act. That Section provided that neither a husband nor a wife had a paramount r i g h t to their infant children.' Unfortunately, the F a m i l y -=179 Relations Act, 1978, which repealed this Act, does not contain as graphic a statement, but the same can be implied from Sections 27 and 34 thereof. In any event, some commentators f e e l that the p r i n c i p l e i s losing much of i t s force as a r e s u l t of the gradual assimilation of the roles of mother and father i n today's • 180 society. 1 I t i s no longer the case that i n a l l families the father goes out to work while the mother stays home and minds the children. With mothers becoming more and more a part of the workforce,' they have no more time to devote to the c h i l d 181 than the father. On the other hand, t h i s lessening of the impact of the doctrine does not appear to accord with the preponderance of the available psychological evidence r e l a t i n g to both maternal and paternal deprivation of children. 1 The question though, i s whether the courts w i l l have regard to such evidence/ Admittedly, courts are becoming more attuned to receiving evidence from the behavioural sciences but the time has not yet come when they w i l l r e l y on such evidence without question, 6 0 and, as we s h a l l see, t h i s appears to be a j u s t i f i a b l e position '-•182 There i s voluminous material i n d i c a t i n g the importance 183 of the r o l e of the mother i n the development of her children. Indeed,1 some commentators believe that a child's physical and psychological development w i l l cease e n t i r e l y i f there i s • - M 8 4 deprivation of emotional contact with the mother.1 Both mental and physical d e f i c i e n c i e s i n children separated from the i r mothers seems to have been proved beyond reasonable doubt, and the indicators are there that the bond between mother and c h i l d i s c r u c i a l for the development of relationships i n la t e r l i f e ; 1 1 8 5 Maternal deprivation obviously has d i f f e r e n t effects according to the child's stage of development at the time. However, commentators have talked i n terms of the e f f e c t on age groups rather than the ef f e c t on children with a p a r t i c u l a r maturity level." This i s because of limitations on the L 8 6 experimental design u t i l i z e d by researchers. As I have stressed before,' the d i f f i c u l t y i n r e f e r r i n g to age groups i s that age i s an unreliable guide to a child's capacity, and this throws doubt on the v a l i d i t y of the conclusions so far as they r e l a t e to either an i n d i v i d u a l c h i l d , or children i n general. 1 Nevertheless, these studies are a l l there are to work with at the moment. 61 Skard believes that the age-group between 6 months and 3£ years suffer the most, and that the c r i t i c a l age i s 7 months.- On the other hand Bowlby i n his seminal work on 189 maternal deprivation believed that the c r i t i c a l age concluded at approximately 18 months.! Taking a broad approach to accommodate as many opinions as possible, i t would appear that a c h i l d w i l l suffer adversely from maternal deprivation u n t i l the age of 3£ years. Between the age of 3^ years and 7 years the evidence appears to be that not every c h i l d i s affected by such deprivation, and herein l i e s the d i f f i c u l t y . ' I t i s not yet possible to ascertain either the type of c h i l d who i s unaffected, or the set of circumstances that w i l l cause a c h i l d not to be affected. I f i t was,' and courts were prepared to accept such evidence,' then th e i r task would be much s i m p l i f i e d / On the other hand,1 i n a state of uncertainty the court t h e o r e t i c a l l y has no option but to award custody to the mother. The r i s k that the p a r t i c u l a r c h i l d was one of those unaffected by maternal deprivation would be too great. The evidence regarding paternal deprivation has been s i g n i f i c a n t l y less i n magnitude than the evidence regarding maternal deprivation, yet some assumptions have s t i l l been made. 1^ 0 In p a r t i c u l a r , i t appears that after the period of :191 nurture the father assumes a more prominent r o l e / Studies involving delinquent children indicated that delinquency was more apparent amongst boys where the father was absent, and 62 delinquency was more apparent amongst g i r l s where they were l i v i n g with th e i r fathers only or l i v i n g with neither parent/ There was also evidence of immaturity, d i f f i c u l t y i n s o c i a l i z i n g , and deficiencies i n mental aptitude amongst boys • 193 as a r e s u l t of paternal deprivation.: Unfortunately though, there was very l i t t l e evidence of the eff e c t of paternal deprivation on g i r l s . ' What conclusions then, can be drawn from t h i s evidence? 195 One commentator •;: has said that, " ( i ) n view of the many areas of research into I deprivation' which lack sound data, i t would be quite unappropriate to draw any firm conclusions at t h i s stage/" 196 Yet, Bradbrook suggests that, II (t)he boldest j u s t i f i a b l e conclusion that can be made on the strength of the pre v a i l i n g evidence i s that, under normal circumstances, a c h i l d under the age of seven i s better o f f with i t s mother, as i s a g i r l of any age. Persuasive, though not quite as sign i f i c a n t , , evidence further suggests that a boy over the age of seven i s better off with his father"/ 197 However, as Bradbrook also points out, i f this was taken to i t s l o g i c a l conclusion a boy would be placed i n the mother's care u n t i l he reached the age of 7 years and then custody would be transferred to the father. 1 The d i f f i c u l t y i s that from the view point of s t a b i l i t y of environment i t may not be i n the best in t e r e s t s of the c h i l d for custody to be altered at that 8198 time. An e n t i r e l y d i f f e r e n t set of pressures and adverse reactions may become apparent. The alternative would seem to 63 be to place the c h i l d with the mother throughout childhood. However, i t must be remembered that t h i s i s the alternative presented on the assumption that the c h i l d should not be deprived of the mother during the period of nurture. I suggest that there may be certain doubts concerning t h i s assumption, f i r s t l y , because of the assimilation of the r o l e of mother and father i n today's society, and secondly, because of recent studies concerning parental deprivation. As to the f i r s t aspect, i t seems to me that the empirical data available i n thearea of maternal deprivation was obtained on the basis of the traditional roles of the parents, namely with the father working and the mother remaining home caring for the young c h i l d . I t i s not unreasonable to assume that i f those t r a d i t i o n a l roles were reversed the c h i l d would s t i l l suffer the same adverse effects, but via paternal and not maternal deprivation. Thus, the conclusions drawn from the evidence do not necessarily take account of the context i n which the studies were made. As regards the second aspect, i t i s now f e l t by some s c i e n t i s t s that the consequences for so long attributed s o l e l y to maternal deprivation, can be equally attributed to paternal loss, and that i t i s more accurate to use a t o t a l concept such as "parental deprivation". I t i s said that for too long now the / 199 qu a l i t y of f a t h e r / c h i l d interactions have been ignored, e s p e c i a l l y since studies have indicated quite c l e a r l y that fathers have a marked impact on t h e i r child's personality d e v e l o p m e n t . F a r too much emphasis has been placed on the 64 mother when i t i s clear that i t i s not necessarily to her that 201 a c h i l d becomes most attached. Many children develop bonds with several people and i t appears l i k e l y that these bonds are 902 b a s i c a l l y similar. However, the p r i n c i p a l bond need not be with the b i o l o g i c a l parent, i t need not be with the chief caretaker, and i t need not be with a female. The important thing i s that a bond be formed and i t i s of less consequence 203 to whom the attachment i s made. However, that i s not to say that i t makes no difference i n terms of i n d i v i d u a l psychological development with whom the young c h i l d forms bonds. I t i s probable that for optimal development bonds need to be formed with people of both s e x e s . 2 0 4 I t a s i l l u s t r a t i v e , I suggest, that the more recent studies do not concern themselves with paternal or maternal deprivation•as such, but rather with the eff e c t on the c h i l d of say separation or divorce, without reference to the sex of the departing parent. However, whether t h i s i s because of a recognition of role assimilation i s unclear. In fact, the only thing that i s clear concerning the evidence i n thi s area i s that very l i t t l e i s certain, and a great deal more study i s ca l l e d for. 65 (2) THE EFFECT OF DE FACTO CARE AND CONTROL Another area where courts must look to the psychological influences at play i s where an application i s made for custody of a c h i l d who has been i n the de facto care and control of the other parent for some time. The courts frequently f i n d themselves i n a c l e f t - s t i c k here, and the question of j u s t i c e between the l i t i g a n t s may r a i s e i t s head once again. De facto custody i s generally determined without any s p e c i f i c reference to the best interests of the c h i l d . I t usually occurs by force of circumstances. For example, one party may have had no alternative except to leave the matrimonial home, but having no suitable accommodation immediately available, could not take the c h i l d with him or her. Again, one parent may simply; disappear without warning, taking the c h i l d as well.! A l t e r n a t i v e l y / there may be an abduction of the c h i l d by one parent. Even the court i t s e l f may have created the s i t u a t i o n , either by an interim order for custody 2 0^ or by a delay i n 207 hearing the application. The problem confronting the courts here i s that the de facto situation may have continued for such time as to create a strong bond between-the c h i l d and the parent. The court must then look very closely at the e f f e c t that a change i n custody w i l l have on the c h i l d and his or her future development/ This must be the dominant factor i n assess-ing the best interests of the c h i l d , and the court cannot take into account that leaving custody with the de. facto care-giver 66 ••"'•908 may not be doing j u s t i c e to the other spouse,. There w i l l obviously be hard cases, but hard cases do not make good law.7' The pressure on the court i s immense, p a r t i c u l a r l y i n an abduction situation.' The court does not want to be seen as condoning t h i s type of action because an abduction i t s e l f can be a traumatic experience for the c h i l d and may have long-l a s t i n g effects. 1 The tug-of-war i s between promoting the inter e s t s of the p a r t i c u l a r c h i l d before the court, and s a c r i f i c i n g that c h i l d i n the hope that would-be abductors can be dissuaded by an adverse court decision. One escape for the court i s to f i n d that there i s no psychological damage to a c h i l d when the status quo i s altered.' Thus, i n the case of In Re Thain (an i n f a n t ) 2 0 9 Eve J . 210 remarked : " I t i s said that the l i t t l e g i r l w i l l be ,greatly distressed and upset at parting from Mr. and Mrs,; Jones/ I can quite understand i t may be so, but, at her tender age/ one knows from experience how mer c i f u l l y transient are the effects of partings and other sorrows,1 and how soon the novelty of fresh surroundings and new associations effaces the r e c o l l e c t i o n of former days and kind friends, and I cannot attach much weight to this aspect of the case. "2H However, courts have not been consistent i n t h e i r approach to this issue, and,' in a sense, i t depends on what evidence i s presented to the court. I f the court receives substantial evidence from the behavioural sciences, and accepts such evidence, then the chances of the status quo being disturbed 212 where a bond has been formed, are minimal. As we have seen, 67 there i s a growing medical concern about the r i s k s entailed i n moving a c h i l d from one environment and custodian to another, and the concern increases i n d i r e c t proportion to the number of changes imposed.* There tends to be a shallowness of affection with a decrease i n reaction at each change; an index 213 of severe emotional disturbance. Strong bonds of affection are forged over a period of time as a natural consequence of the parent-child r e l a t i o n s h i p , involving as i t does close proximity and attention to the physical and emotional needs of the c h i l d . Of course though, blood t i e s alone do not create t h i s type of bond, and as we have seen the important thing i s the nature and qu a l i t y of the bond rather than with whom i t i s f o r g e d . 2 1 4 An appreciation of the need to consider the presence of such a rela t i o n s h i p , and the consequences of i t s breach appears i n the following extract from the judgement of Lord MacDermott 215 i n the case of J v C : "Some of the authorities convey the impression that the upset caused to a c h i l d by a change of custody i s transient and a matter of small importance. For a l l I know that may have been true i n the cases containing d i c t a to that e f f e c t . But I think a growing experience has shown that i t i s not always so and that serious harm even to young^people may, on occasion, be caused by such a change."' I do not suggest that the d i f f i c u l t i e s of t h i s subject can be resolved by purely t h e o r e t i c a l considerations, or that they need to be l e f t e n t i r e l y to expert opinion. But a child's future happiness and sense of security are always important factors and the effects of a change of custody w i l l often be worthy of the eloseaand anxious attention which they undoubtedly received i n t h i s case. '"216 68 Of course, the problems here are s i m i l a r to those which hound the concept of p a r e n t a l d e p r i v a t i o n , namely, how con c l u s i v e i s the evidence and w i l l the courts be r e c e p t i v e to such evidence? As w i t h studies concerning d e p r i v a t i o n , i t i s apparent t h a t not a l l c h i l d r e n are a f f e c t e d by an a l t e r a t i o n i n de f a c t o custody, and there i s a need f o r data i s o l a t i n g the 217 types of c h i l d r e n so unaffected. U n t i l such data i s forthcoming the s a f e s t course f o r a judge i s to assume t h a t the best i n t e r e s t s of the c h i l d w i l l be served by maintaining the s t a t u s quo unless evidence from the behavioural sciences indicates,-, otherwise i n the p a r t i c u l a r circumstances of the 218 case- a t bar. However, even t h i s may be too s i m p l i s t i c an approach. 219 There are countless v a r i a b l e s to consider, i n c l u d i n g the age of the c h i l d (or r a t h e r h i s phase of development), any already e x i s t i n g emotional and mental problems, and the f a m i l i a r i t y of the surroundings. Again, the d i f f i c u l t y w i t h the age f a c t o r i s t h a t there i s no consensus amongst p r a c t i t i o n e r s of the behavioural sciences as to when the r i s k of emotional disturbance i s greatest. Of course, a page may be taken out of the p a r e n t a l d e p r i v a t i o n book, and the conclusion reached that the most that can be s a i d i s tha t encompassing the d i f f e r i n g views the e f f e c t w i l l be g r e a t e s t between c e r t a i n 220 ages. Yet, t h i s w i l l not a s s i s t the judge confronted w i t h the s i t u a t i o n where a c h i l d i s over the maximum age, and 69 ps y c h i a t r i c evidence i s presented to the e f f e c t that t h i s p a r t i c u l a r c h i l d w i l l be severely affected by a disturbance of the de facto s i t u a t i o n . Inevitably, the court i s l e f t to 221 make i t s own judgement i n these circumstances. Naturally, where the c h i l d has a pre-existing emotional disorder the court w i l l need to be even more r e l i a n t on the medical evidence and the treatment requirements. For example, 222 i n Davis v Davis the c h i l d was suffering from juvenile schizophrenia and the recommended evironment was one where emotional disturbance was limited.! The father had been providing such an environment for the preceding 15 months,' and, accordingly, the court had no hesitation i n leaving the custody of the c h i l d with him. The f a m i l i a r i t y of the surroundings i s a self-evident factor. I f a c h i l d has been residing i n one place for a lengthy period of time he w i l l have a close a f f i n i t y with the people around him and with the neighbourhood as a whole. To uproot him and place him i n a strange environment w i l l obviously have an e f f e c t on him,1 and the general opinion i s that such 223 e f f e c t w i l l be an adverse one for his emotional equilibrium. I t i s perhaps a question of degree though. The e f f e c t of the change might be most traumatic where the c h i l d has never had any contact with the proposed environment, and where the same i s so far away from his present environment as to e f f e c t i v e l y 70 prevent the retention of any links with the l a t t e r . However, although i n theory there may be a number of factors bearing on whether a court w i l l defer to the f a i t accompli presented by a settled de facto si t u a t i o n , i n practice i t i s rare indeed for a court to disturb a se t t l e d -224 environment. This i s ce r t a i n l y my experience i n the Family Court of A u s t r a l i a and i t would seem to be the case i n the Supreme Court of .Ontario. Bradbrook has conducted an empirical study of the attitudes of the judges i n the l a t t e r court and the r e s u l t s are quite revealing. His findings i n t h i s 225 p a r t i c u l a r area are as follows : " A l l but one of the judges admitted that they seldom upset the status quo before the t r i a l , although the majority emphasised that everything depends on the length of time that the p r e - t r i a l arrangement has been i n operation. 1 The majority opinion i s that once one party has had possession of the c h i l d for si x months or longer a presumption of continuance ar i s e s , but that possession for a shorter time carries l i t t l e weight. However, three judges remarked that they would be reluctant to change possession even where the parent with the c h i l d had . only had possession for two months before the t r i a l . 1 In sharp contrast to his brothers, one judge has no qualms at a l l about changing possession of the c h i l d , since the t r i a l i s intended to be a determination of the issue, not necessarily the maintenance of the status quo: his only proviso i s that the parent without possession before the t r i a l must have kept i n regular contact with the c h i l d at a l l stages or else he or she w i l l become a stranger and be u n l i k e l y to win custody. The only other observation worthy of note i n this context i s that two judges are of opinion that the time of the year of the t r i a l rather than the length of the pre-t r i a l arrangement i s of importance: i f the c h i l d i s in the middle of the school year and would have to be uprooted i f the party without possession were to 71 gain custody then t h i s would be a very weighty factor i n favour of the status quo.: The same judges commented that i f the same case were to be heard during the summer vacation they would be far more l i k e l y to reverse the status quo." The question of interim custody i n t h i s context of maintaining the status quo i s also an important one.: On an application for interim custody the court has generally l i t t l e else to r e l y on other than the de facto s i t u a t i o n . I t i s not possible for the issues to be canvassed extensively at that stage and both parents may not even be present at the hearing. Accordingly, although the welfare of the c h i l d i s s t i l l the 226 paramount consideration, i t i s common practice for courts to require more cogent evidence to disturb the de facto custody 227 sit u a t i o n here, than on a f i n a l application.- 1 The courts n a t u r a l l y take comfort i n the circumstance that any order made i s an interim one only, and that i t would be harmful to the c h i l d for the existing custody arrangement to be altered when the t r i a l court might return the c h i l d to the o r i g i n a l custodian. However,1 this reasoning i s only acceptable i f there i s l i t t l e or no delay between the making of the interim order and the actual t r i a l . Otherwise, the c h i l d w i l l become even more ensconced with the de facto custodian, and the more reluctant the t r i a l court w i l l be to disturb the status quo. Unfortunately though, i n most j u r i s d i c t i o n s there are delays i n bringing a matter to t r i a l simply because of the 72 pressure of court business." Thus,' t a c t i c a l l y the interim hearing can become quite important and the temptation i s there for parties to gain possession of the c h i l d prior to the 229 hearing by whatever means may be available. Of course, as 230 we have already seen, the fact of abduction s i m p l i c i t e r should not necessarily lead to a return of the c h i l d to the o r i g i n a l custodian, but the actions of the abductor may s t i l l 231 have a bearing on his or her fi t n e s s as a parent. Thus, i n 232 Johnson v Johnson et a l . the methods u t i l i z e d by the f a t h e r i n removing the c h i l d from the de facto custody of the mother, and the inference that he did so to gain a t a c t i c a l advantage at the hearing, weighed heavily against him on his application for interim custody.1 Courts must be careful here though, because there i s a very thin l i n e indeed between looking at the j u s t i c e of the case v i s a v i s the parents, and taking the parties conduct into account i n assessing the best in t e r e s t s of the c h i l d . The former should play no part what-so-ever i n 233 determining the issue at hand. Courts sometimes go too far i n deferring to the de facto s i t u a t i o n on an application for interim custody, and statements can be found to the ef f e c t that exceptional evidence suggesting possible harm to the c h i l d i s needed to disturb the status quo. Although i t i s reasonable for more weight to be attached to t h i s circumstance than normal, i t must s t i l l be remembered that i t i s only a factor to be taken into account 73 i n determining the welfare of the children, and i t does not override the paramountcy of the l a t t e r . (3) SEPARATION OF SIBLINGS Where a family unit i s comprised of more than one c h i l d , relationships of varying kinds and degrees w i l l exist between the children themselves. Accordingly, i t i s essential to consider the in t e r a c t i o n of the children when assessing th e i r best i n t e r e s t s . In p a r t i c u l a r , the question i s whether the children should be kept together or separated. Courts almost i n v a r i a b l y attempt to keep the children together i n order to r e t a i n some vestiges of the previous family unit. : I t i s considered that each c h i l d can only benefit from the presence and companionship of his or her s i b l i n g s . However, as always, the welfare of the c h i l d i s paramount, and there may be instances where th i s consideration 235 requires the children to be separated. 5 The obvious example i s where the intended custodial parent i s unable to cope with 236 a l l the children, either because the family i s too large,' or the f i n a n c i a l resources are i n s u f f i c i e n t . S i m i l a r l y there would be l i t t l e advantage i n keeping children together where there was bitterness within the family, either between the 74 "237 children themselves or between the parents. 1 (4) THE WISHES OF THE CHILD Now, from the point of view of the theme of t h i s paper we come to the most important factor of a l l ; the wishes of the subject c h i l d . The child's wishes have long been considered relevant i n the determination of a custody dispute, but u n t i l r e l a t i v e l y recently t h i s consideration has been of a haphazard nature. Today i t i s rare to f i n d a statement of the factors to be taken into account i n assessing where the best interests of 239 the c h i l d l i e , which does not include the wishes of the c h i l d . I t i s also apparent that commentators and courts a l i k e have become increasingly aware of the need to ascertain the views of the c h i l d . ' ) 2 4 0 However, to say that the c h i l d i s to be consulted and his or her wishes are to be taken into account i s only the f i r s t step, and one which w i l l be discussed extensively later i n t h i s paper. For the present, the v i t a l question i s what effe c t w i l l those wishes have on the court's decision? I t i s i n t h i s area that courts have been inconsistent i n t h e i r approach. A judge can u t i l i z e the expressed wishes of the c h i l d i n several ways. He can simply give them f u l l e f f e c t ; he can treat them as one factor to be considered along with a l l the 7 5 other factors i n assessing the best in t e r e s t s of the c h i l d ; he can disregard them e n t i r e l y ; or he can use them to determine border-line cases.' Now, i n accordance with the int e r p r e t a t i o n 241 of the best interests t e s t expounded i n J v C, the wishes of the c h i l d should be no more than one factor to be considered by the judge.- However, i t would not seem unreasonable to suggest that those wishes should be a c o n t r o l l i n g influence i n the child's placement. A f t e r a l l , ' i t i s the c h i l d who has to reside where the court determines, and i t stands to reason that the c h i l d w i l l be happier i n an environment where he or she wants 242 to be. However, the j u d i c i a r y has not bought t h i s argument, preferring to say that "the welfare of the infants when in issue i s not to be confused with the wishes or w i l l of the infants."243 Most commonly a judge w i l l treat the wishes of a c h i l d as merely one of the factors to be c o n s i d e r e d . 2 4 4 There are at l e a s t two reasons for t h i s unenthusiastic approach by the courts. The f i r s t i s related to the p a t e r n a l i s t i c notions of the past, namely, that a c h i l d i s not a separate person e n t i t l e d to his or her own viewpoint,' and parents i n v a r i a b l y know what i s best for t h e i r child.- However,' thi s thinking i s gradually being eroded with the strong push for l e g i s l a t i v e recognition of children's rig h t s i n the l a s t decade, and courts are becoming more sensitive to the " 2 4 5 i n d i v i d u a l needs of each child.') The second reason though,' 76 i s not as e a s i l y overcome. Judges, conservative creatures as they are, have a natural reticence to allowing a c h i l d to 246 determine the r e s u l t of a custody dispute.; The prime factor here i s that the weight assigned to the child's wishes i s r e l a t e d to the capacity of the c h i l d to make a reasoned choice. Yet, doubts i n v a r i a b l y exist as to thi s capacity, there being no i n f a l l i b l e standard by which to determine whether the p a r t i c u l a r c h i l d possesses the necessary decision-247 making a b i l i t y . Indeed, t h i s conundrum exists as well during the pri o r stage of determining whether the c h i l d should be consulted at a l l . ! The most commonly used touchstone has been the age of the child.' For instance, i n his empirical studies of judges' 249 attitudes i n Ontario, Bradbrook found as follows : "The majority took the l i n e that the opinion of a c h i l d over the age of 10 years carried great weight i n every case, but that under the age of 10 years the weight attached to the opinion depends on the circumstances; i n the l a t t e r cases the child's opinion usually only s e t t l e d the case i n border-line situations, whilst i n the former cases, the opinion overrides a l l but exceptional evidence suggesting a contrary judgement." However, a general perusal of the case law indicates that no one p a r t i c u l a r age i s determinative, and the most that can be said i s that the older the c h i l d i s , the more weight that i s *250 accorded to his or her wishes." H i s t o r i c a l l y though, the age of discretion (14 years of age for boys, and 16 years of age for g i r l s ) was all-important, and i t was a rul e of common law 77 that the child's w i l l prevailed over the parent's r i g h t to custody once the c h i l d had reached that age/ Indeed, a writ of habeas corpus, which was the remedy for regaining custody, could not be issued i n respect of a c h i l d over the age of d i s c r e t i o n / This common law rule was subsequently adopted by equity and became ensconced i n the Divorce Court xn England/ There has also been statutory intervention i n t h i s area rendering pa r t i c u l a r ages determinative. For instance, Section 64 ( l ) (b) of the Australian Family Law Act, 1975 as 252 amended, provides that a court i s not permitted to make an order with respect to the custody, or guardianship of, or access to, a c h i l d who has attained 14 years of age i f such order. =253 would be contrary to the wishes of that child. 1 This i s not an absolute prohibition though, and the court has a dis c r e t i o n where i t i s s a t i s f i e d that there are spe c i a l circumstances =254 rendering such an order necessary. Nevertheless, the f a c t remains that t h i s i s a s i g n i f i c a n t reversal of the accepted method of assessing a child's best i n t e r e s t s . By giving f u l l e f f e c t to the child's wishes they become the paramount -consideration rather than the court's conception of what the 255 welfare of the c h i l d requires. There i s no equivalent of this l e g i s l a t i o n i n B r i t i s h Columbia except i n the area of 256 adoptions. Section 8 ( l ) (a) of the Adoption Act provides that no adoption order i s to be made without the written v. consent of the c h i l d , i f over the age of 12 years.' However, 78 pursuant to sub-section (6), the consent may be dispensed with i f the same ought, i n the opinion of the court,' and i n a l l the circumstances of the case, to be dispensed with. Now, although age i s an oft-used c r i t e r i o n , i t seems to me that too much emphasis has been placed on t h i s factor.; I suggest that by i t s e l f i t i s an unreliable guage, and i t does not necessarily provide i n s i g h t into the decision-making -?57 capacity of the child.- As I have said, there i s no one i n f a l l i b l e standard, and the best a court can do i s look to a l l the i n d i c i a i t can f i n d , including the age,' the maturity and the i n t e l l i g e n c e of the c h i l d , as well as his or her environmental influences. 1 I t i s s i g n i f i c a n t , I suggest, that i n almost a l l pronouncements dealing with taking the wishes of children into account, no one factor i s held out as the c o n t r o l l i n g guideline per se. They do no more than d i r e c t the court to look to the a b i l i t y of the c h i l d to make a 258 reasoned choice.-I t seems to me that even to suggest making the age of the c h i l d presumptively co n t r o l l i n g as to i t s capacity i s too "259 a r b i t r a r y . Yet this i s Leon's proposal.' A l b e i t conceding that there i s no d i r e c t l y relevant empirical data from the s o c i a l sciences/ he u t i l i z e d what evidence he could f i n d to establish rebuttable presumptions.1 They are/ that children under 5 or 6 years of age are incapable, that children between 79 7 and 13 years of age have "a s u f f i c i e n t degree of capacity to j u s t i f y taking t h e i r preferences i n t o c o n s i d e r a t i o n " , 2 ^ and that children over 13 years of age have the necessary capacity to allow " e f f e c t i v e p a r t i c i p a t i o n i n the decision-making process." Unfortunately, I suggest that this exercise i s too speculative to have any p r a c t i c a l worth.' Of course, the uncertainty surrounding the capacity of a c h i l d i s not the only reason for the reluctance to allow a c h i l d to determine the r e s u l t of a custody dispute.; There i s also the nagging doubt that thecchild has been influenced by 262 one of the parents. 1 This can take the form of d i r e c t influence, such as a bribe or coercion, or, more importantly, there may be subtle influences at play, such as the natural e f f e c t of the r e l a t i o n s h i p between the c h i l d and the parent with whom he or she i s l i v i n g . This e f f e c t i s one of strong bias towards that parent. 1 I t i s a delicate exercise to distinguish between the expression of a p o s i t i v e choice r a t i o n a l l y based/ and a desire which i s the r e s u l t of an emotional attachment to a p a r t i c u l a r parent. This concern at the presence of influence i n one form or another i s i l l u s t r a t e d i n Spence J.*s judgement i n the case of McDonald v McDonald. 2^ 4 There,' the three infant children had expressed a preference to stay with t h e i r mother,' but the t r i a l judge had awarded custody to the father.' Spence J.' 80 commented on this as follows : "The learned t r i a l judge astutely observed that, i n fact, 1 the children had been with t h e i r mother for about a year previous to the t r i a l . I t would only be natural that a parent who had custody of his or her children for that period of time would see to i t that those children expressed a preference to have such a s i t u a t i o n continue."266 Unfortunately, t h i s state of a f f a i r s occurs a l l too frequently, and' i t i s a sad i n d i c a t i o n of how children can become the innocent victims of the c o n f l i c t between the parents.' The 267 case of Kramer v Kramer and Merkelbaq i s p a r t i c u l a r l y i l l u s t r a t i v e of how far a parent i s prepared to go.: There, the father had custody of the son, and the mother custody of the daughter. The court refused access because "the boy would act as his father's instrument to disturb and upset the girl."268 There was a "strong i n d i c a t i o n that his father ha(d) infected him with his detestation of the co-defendent"269 and that the father was " w i l l i n g to destroy (the daughter's) happiness to revenge himself on the defendents.1"270 There can be no denying that the capacity of a c h i l d and the danger of undue influence are major impediments to giving f u l l e f f e c t to the wishes of a chil d . 1 Indeed, they are impediments to u t i l i z i n g the wishes i n anyway whatsoever. However,1 I suggest that they are not insurmountable,' and that there are a number of devices open to a court to a s s i s t i n quelling any doubts that may exist. They involve the use of 81 behavioural s c i e n t i s t s and independent legal representation for the c h i l d . Quite c l e a r l y / the question of the capacity of a c h i l d i s one that the judge cannot hope to resolve himself, and he should be provided with evidence from a s o c i a l s c i e n t i s t who has evaluated the c h i l d and a l l interested '271 parties.'' Independent le g a l counsel can also play a major r o l e here.5 At the very least, he can prize the c h i l d from the clutches of both the parent having de facto custody and that parent's counsel, and with the assistance of behavioural s c i e n t i s t s ascertain whether the wishes of the c h i l d are soundly based or not/ I f they are,' then the same can be put to the court i n their proper context. This approach was adopted by McDonald J.' i n Currie v Currie/ There, an 11^ - year old g i r l exhibited a desire to be with her mother.5 However, McDonald J / was not e n t i r e l y convinced that t h i s was the correct r e s u l t i n a l l the circumstances. Indeed,1 he f e l t that i f i t was not for the determination of the c h i l d , custody should be awarded to the father. 1 Accordingly, he awarded the mother interim custody for a period of four months,' after which time the matter was to come back before him. In the meantime, he directed the appointment of an amicus curiae to represent the child's 273 interests.' Of course, where a court i s s a t i s f i e d that the c h i l d i s capable of marking a conscious choice,' f u l l e f f e c t i s 274 generally given to that choice/ Courts have even given 82 e f f e c t to the wishes of a c h i l d where the reasons for the same, although r a t i o n a l and, to the c h i l d , e n t i r e l y cogent and compelling, are nonetheless "touched with the immaturity of judgement which one would o r d i n a r i l y expect to f i n d " i n a young child.' S i m i l a r l y , i n Shapiro v Shapiro the decisive factor was the honest wish of the c h i l d to be with her father, a l b e i t the l a t t e r had influenced the c h i l d against her 277 mother. Davey J.A. said t h i s : "As i n many cases,' there i s one decisive element . which controls the disposition of t h i s case .i.i.-(T)hat decisive element i s the wish of the fifteen~ye§r,-old g i r l on the verge of womanhood/ who s e e m s V to be a person of some maturity of judgement,1 to be placed i n the custody of her father The g i r l has not only expressed the wish,1 but she has f i l e d an affidavit,' 1 the contents of which would indicate that the chances of her establishing a s a t i s f a c t o r y Relationship with her mother are now very remote .1.1. I assume for the moment that the learned . t r i a l judge i s r i g h t i n finding that the father/ by his conduct and his r e l a t i o n s h i p with the children/' has turned them against the mother/ that he has secured t h e i r confidence by manipulation and by manoeuvering .U.; But nevertheless/ no matter how that f e e l i n g on the part of the daughter was induced/ i t i s present and r e a l , and the daughter n p W 2 7 8 honestly wishes to be with her father." The p r a c t i c a l i t i e s of the s i t u a t i o n must also be borne i n mind.' For instance, l i t t l e advantage w i l l accrue as a r e s u l t of opposing the c l e a r l y expressed preference of an *27Q older child.! He or she w i l l make his or her own choice anyway, and the court w i l l be r e l a t i v e l y powerless to supervise the order. 1 83 This issue i s p a r t i c u l a r l y apparent i n the context of access where the c h i l d refuses to see the non-custodial parent. The child's wishes i n such instances w i l l usually be 2 8 0 " acceded to by the court.' Indeed,' in- the area of access there seems to be a willingness on the part of judges generally to give f u l l e f f e c t to the child's preferences, more so than i n the area of custody." Doubtless they f e e l more comfortable i n taking this stance where a supposedly less momentous decision i s required. However, I suggest that children can be affected i n t h e i r future development just as much over access as they can over custody.' One i l l u s t r a t i o n of the more l i b e r a l approach of the courts i n access matters i s the recent trend of allowing the c h i l d himself to determine whether access w i l l take place, or at l e ast, have a s i g n i f i c a n t say i n the terms and conditions - 2 R 2 2 8 thereof. For example, i n Tassou v Tassou Bowen J.< ordered "that the father have access for a t o t a l of 4 days i n each month; such days to be determined by the father,' mother and children", with the children's wishes to be paramount. S i m i l a r l y , i n the case of McCann v McCann the Nova Scotia Court of Appeal affirmed the award of the t r i a l judge that access to the two youngest children (8 and 6 years of age respectively) should occur only when they wished,1 while access to the two oldest children (14 and 12 years of age respectively) be denied at t h e i r i n s i s t e n c e . 2 ^ 84 There can be no denying that there i s a d e f i n i t e part for the child's wishes to play i n determining i t s future 286 placement and relationships. As Leon says : "In l i g h t of the inherently ( indeterminate and speculative' as well as value-laden nature of custody determinations (Mnookin, "Child-Custody Adjudication - J u d i c i a l Functions in the Face of Indeterminacy", (1975), 39 Law and Contemporary Problems 226, at P. 299) there i s much to commend attaching s i g n i f i c a n t weight to the preferences of the competent "child, and at least considering those of the c h i l d with less than f u l l capacity." Their wishes must be accorded a much higher p r i o r i t y than being j u s t one of the many factors to be taken into account. Judges should shrug off any reluctance to come to 9 8 7 terms with the expressed wishes of a c h i l d and not attempt to hide the same amongst these other factors. Nor should the 288 child's wishes simply.be used, to determine border-line cases. I t seems incongruent to me that the wishes should be determinative in these circumstances and not where the scales are unevenly balanced. Moreover, a word of caution i s necessary. I t i s a l l very well to adopt this approach where there i s l i t t l e to choose between the parents because the inte r e s t of the c h i l d w i l l be served equally as well by both. Yet, I doubt i t s e f f i c a c y where the deadlock i s because neither parent offers much of an alternative. This i s not to say that the wishes of the c h i l d should not be considered at a l l i n such circumstances, but I f e e l that this i s one area where there i s a need for the court to look to other alternatives 85 amongst available t h i r d p a r t i e s . On the other hand i t seems to me that i t i s not necessary to go overboard in giving e f f e c t to the wishes of children.' One proposal which I consider that does go too far 289 i n t h i s respect i s that espoused by Bersoff. He has suggested that the child's preference by presumptively 290 c o n t r o l l i n g , but not conclusive, of the outcome.1 For a ch i l d over 12 years of age, his preference would only be disregarded i f he was made a victim of criminal behaviour by the preferred parent. 1 For a c h i l d under 12 years of age there would need to be evidence that placement with the non-preferred parent would provide s i g n i f i c a n t advantages, essential to the child's development which could not be subst a n t i a l l y provided by the preferred parent. Now i t seems to me that i t i s a l l very well to accord considerable weight to the wishes of the ch i l d , but there i s s t i l l some truth i n the statement 291 previously quoted, to the effect that the wishes of the ch i l d should not be confused with the welfare of that c h i l d . I t i s only where the wishes of the c h i l d are ad idem with i t s best in t e r e s t s that they should be given f u l l effect," In a l l other cases i t i s a question of degree as to how much weight i s afforded the child's preferences. 1 In both instances though, i t i s s t i l l necessary for the court to make a determination as to where the best in t e r e s t s of the c h i l d l i e , 1 as well as receiving evidence of i t s wishes.1 86 ESCAPE VALVES The resolution of a custody dispute i s an extremely d i f f i c u l t process for a judge/ p a r t i c u l a r l y where there i s l i t t l e to choose between the parents, or where the best in t e r e s t s of the c h i l d demand that the rogue i n the action be awarded custody. However, there are avenues open to the judge to lessen the burden on himself, and at the same time ameliorate the apparent harshness of a decision from the 292 unsuccessful-parent's viewpoint. (1) ACCESS The most commonly used device i n this regard i s to 293 award access to the non-custodial parent. In fact, i t i s very rare to f i n d access being refused by a court and I suggest that t h i s i l l u s t r a t e s i t s use as an escape valve. As i n matters of custody, whether access i s granted and on what conditions, i s determined according to the best interests of the c h i l d . This i s the paramount consideration. Yet, given t h i s circumstance, i t may seem somewhat inconsistent that a parent who has been denied custody as a r e s u l t of t h i s consideration, can be awarded access on the basis of the same consideration. The answer given by the courts i s that although many of the same factors are taken into account i n determining 87 both issues, 1 d i f f e r e n t weight and emphasis i s accorded to those factors depending upon which issue i s under •294 consideration. To me this i s not an en t i r e l y s a t i s f a c t o r y response. I t would appear that many courts have not yet ridded themselves of the anachronisms of the past as far as access i s concerned, and approach the issue on the basis that the parent has a natural r i g h t to access which w i l l only be denied i f 295 danger to the c h i l d i s apprehended.' Indeed, t h i s " r i g h t " i s sometimes placed on a pedestal i n d i r e c t competition with the =296 "best i n t e r e s t s " principle. 1 The question may be posed though, whether t h i s i s an in t e n t i o n a l exercise by the court. I f i t i s correct to say that access i s used as a sop to the parent deprived of custody, then i t may very well be an unthinking action on the part of the court i n many cases.1 That this may be so i s borne out by my experience as a pr a c t i t i o n e r i n the Family Court of Australia. 1 In a s u i t involving children every one i s so concerned with the question of custody, and a l l the evidence and a l l the energies of those involved i s directed to thi s issue, that once the same i s resolved, very l i t t l e time and e f f o r t i s afforded the question of access. In most cases, i t simply follows the event. Of course, t h i s i s not the case where custody has been agreed and the only issue before the court i s 88 access.' I t i s generally i n these cases that the law r e l a t i n g to access i s expounded. Naturally, there are cases where the correct approach i s taken, and a s e n s i t i v i t y to the needs of the c h i l d i s 297 displayed. For example i n the case of Re Tuokimaki the 298 court said t h i s : "I cannot agree that as a rule of general application access may not be refused except £ i n cases where danger to a c h i l d i s apprehended.' I think the o v e r a l l welfare which of course includes onot only the physical surroundings but the mental,1 moral and s p i r i t u a l , are to be considered as a whole .whenever possible, and the decision based on how the scales f a l l according to the i n t e r e s t s of the c h i l d and not either parent." 299 Professor Davies explains away the apparent concentration on the parental r i g h t to access on the basis that the court i s r e a l l y emphasising the need of a c h i l d for continuing contact with both parents. I t i s said that even though there i s a parting of the ways when a family unit dissolves, the c h i l d retains ties.with both parents. Thus, to deprive a c h i l d of a l l contact with one parent e n t a i l s the withholding of the contribution that that parent would normally have made to the child's physical and psychological development. There i s also the p o s s i b i l i t y that i n l a t e r l i f e the c h i l d w i l l grow to resent the custodial parent believing that he or she i s responsible for such deprivation. However, th i s again raises the issue of the psychological influences' at 89 play, and as we have seen i t i s extremely d i f f i c u l t to ,be dogmatic i n this area. There i s a school of thought amongst some c h i l d psychologists that access should not be the subject of j u d i c i a l determination at a l l , but rather, 1 should be l e f t completely to the d i s c r e t i o n of the custodial p a r e n t . ^ 0 0 The basis of this theory i s that a c h i l d has d i f f i c u l t y i n r e l a t i n g to two parents who are i n c o n f l i c t . Loyalties become s p l i t and there i s a danger of destroying the child's p o s i t i v e relationships with both parents.' I t i s much more important to foster p o s i t i v e emotional t i e s with the custodial parent. This slant on access has not yet been taken up by the . o n i courts, but this i s not to say that the courts turn a blind eye to the unsettling e f f e c t that access may have upon the c h i l d / Where there i s clear evidence that contact with the non-custodial parent w i l l cause the c h i l d to become emotionally 302 upset the court w i l l deny access/ In p a r t i c u l a r i t has been recognised that access i s not fea s i b l e where there i s great animosity between the parents. The r i s k to the emotional s t a b i l i t y of the c h i l d i s too great/ For example, i n the case 303 of Re Stroud and Stroud the parents had been engaged i n b i t t e r feuding for most of the child's l i f e and they had used him as a weapon for t h e i r own purposes. 1 His emotional , s t a b i l i t y had already been affected to the extent that he exhibited "an almost panic reaction when exposed to the presence of his father".304 90 The reports of behavioural s c i e n t i s t s presented at the t r i a l indicated that the child's emotional well-being might be permanently impaired unless the feuding ceased and the. c h i l d was placed i n a stable environment. Accordingly, the court denied access to the father u n t i l such time as he and the mother could agree on a method of access, or u n t i l the c h i l d reached 305 an age where he could better cope with the s i t u a t i o n . A similar set of circumstances arose i n the case of K r o l l v K r o l l . There, the medical evidence was that the child's future development would be harmed by the continued animosity between her parents and, i n p a r t i c u l a r , by the mother's very strong hatred for the father. However, Aikins Jwas not prepared to resolve the problem of access i n the same manner as the court i n Re Stroud and Stroud. He f e l t that there were dangers i n such an approach; f i r s t l y , i f the c h i l d was l e f t e n t i r e l y under the influence of the mother, the r i f t between father and c h i l d might become permanent, and secondly, the medical evidence indicated that the c h i l d might develop ps y c h i a t r i c problems i f she was brought up exposed s o l e l y to the mother's hatred.for the father. Accordingly, he made an interim order that there be no access, but arranged for the c h i l d to receive p s y c h i a t r i c treatment for up to 6 months and for the mother to receive assistance from a s o c i a l worker. At the end of the 6 months, the matter could be brought back before him for reassessment. 91 Whether the r e a l reason for granting access i s , as Professor Davies suggests, the alleged benefits thereby enuring to the c h i l d , or whether this i s merely camouflage to divert attention from the f a c t that courts emphasise access as a natural r i g h t of a parent, i s debatable, but i t i s s t i l l the most'common approach taken by the courts. The benefits said to flow from access are generally re l a t e d to the retention of as many of the aspects of a two-parent household as possible. 1 For example, i f access i s ordered the c h i l d can experience the love and attention of both parents and be guided and 307 influenced i n his or her development. The c h i l d presumably w i l l have a more balanced outlook on l i f e . There i s also the p o s s i b i l i t y of the untimely demise of the custodial parent, and a court w i l l not be so uneasy about awarding custody to the surviving parent, i f that parent has played a r o l e i n the development of the c h i l d . Although there i s t h i s tendency of courts to think i n terms of a parent having a natural r i g h t to access, some of the i r number have gone to the other extreme, and given access a very low p r i o r i t y . For example, courts have not been adverse to denying access where the non-custodial parent i s not paying maintenance. How t h i s can be j u s t i f i e d as being i n the best int e r e s t s of a c h i l d i s anybody's guess; the most that can be said i s that the court i s making a value judgement as to whether access or maintenance i s more important to the child,' 92 Fortunately, the general consensus amongst courts i n Canada, England, the United States of America, and Australia, 1 i s that access does not depend on maintenance, and vice versa. On the other hand though, there have been decisions i n Canada, and some quite recently, to the contrary. For example, i n 309 Greoson v Greqson the court ordered that the father have reasonable access to the c h i l d conditional upon him paying 310 the mother maintenance for the child.' In Cartaqenora O i l (Lipson) v Lipson Garrett J . of the Ontario Supreme Court made what he admitted was an unusual order with respect to access. He ordered that after the arrears of maintenance had been paid, and when i t could be shown that a l l current payments of maintenance had been paid, the father could apply to the 312 court for access to the children. These decisions are unfortunate; i f the best interests of the c h i l d dictate that the non-custodial parent have access, then such access should not be frustrated i n anyway. The courts also possess a control device when awarding access i n that i f any aspect of contact between the c h i l d and the non-custodial parent causes concern, terms and conditions can be imposed to overcome the d i f f i c u l t y . For example, access can be limited to the day-time only, r e s t r i c t i o n s can be placed on the persons with whom the c h i l d comes into contact, directions can be given as to the method of c o l l e c t i n g and returning the c h i l d , conditions can be imposed on where the 93 c h i l d i s taken and on what a c t i v i t i e s are to be engaged i n ; the l i s t i s endless. The court i s also able to order that •313 access be supervised by a t h i r d party,' and this i s an important option, p a r t i c u l a r l y where the supervisor i s a -314 p s y c h i a t r i s t , a psychologist or even a s o c i a l worker/ In the Australian j u r i s d i c t i o n i t i s quite common for access to be supervised by a Court Counsellor, who i n turn submits a report regarding access to the judge. One aspect that should be emphasised i n t h i s context i s that i t i s important for the court to make the parties aware of the eff e c t of awarding custody to one parent and access to the other. In p a r t i c u l a r , the part that the parent granted access plays i n the development of the ch i l d needs to be c l a r i f i e d . S t r i c t l y , t h i s r o l e i s a very limited one, as 315 i l l u s t r a t e d by Spence J. ! i n Gubody v Gubody : 11 (t)he father's contact with his daughter must be that of a person who v i s i t s her, who-spends some time with her," but who cannot change or a l t e r her mode of l i f e or have any general direction of the child's conduct. That i s a matter of custody /.V (W)hat he i s e n t i t l e d to do i s to be with his daughter and apart from the mother,1 but .Uv he i s only to have the ordinary control of a c h i l d necessary for the w e l l -being of the c h i l d during the hours they are together, and he i s not to i n t e r f e r e i n any way with the child's upbringing." This sounds fine i n theory, but does not accord with the r e a l i t i e s of the s i t u a t i o n . Indeed, i t i s even a l i t t l e inconsistent with the reasons proferred for awarding access i n the f i r s t place; the enrichment of the l i f e of the c h i l d 94 through contact with the non-custodial parent. A c h i l d i s bound to be-.influenced i n his or her development merely by the presence of the non-custodial parent and there i s nothing the court can do about that. 1 What the courts are more concerned about though,' i s positive interference by the non-custodial parent, an a l l too frequent occurrence.' Many parents consider i t t h e i r duty to constantly be looking over the shoulder of the custodial parent, thus creating unnecessary tension and unpleasantness. 1 This i n turn can have an adverse e f f e c t on the c h i l d . Nor are parents adverse to using access as an opportunity to gain an advantage over the other parent. Many non-custodial parents use access periods to influence the c h i l d against the custodial parent i n the hope that they w i l l succeed i n an application for a change i n custody. S i m i l a r l y , custodial parents often attempt to fru s t r a t e access 317 by influencing the children against the other parent. Devices such as never having the children ready on time, pretending the children are i l l , or that other arrangements have been made for the day are also common-place. The sad part of i t a l l i s that the children are the ones affected the most. Their emotional s t a b i l i t y i s often seriously jeopardized by this constant toing and froing between the parents. 95 However, what i s even more anomalous i s the f a c t that r a r e l y does a court order solve the problem. Cutting off access rig h t s e n t i r e l y i s a course which i s sometimes 318 319 taken, but, as we have seen, there are disadvantages to the c h i l d even with t h i s approach. The r e a l problem i s that a court usually does not have the resources at i t s disposal to supervise each access order i t makes, and parties j u s t continue the battle.' The preferred solution i s to have the parties reach an agreement as to access (subject to a court review, of course), and to t h i s end courts very often order that a party have reasonable access to the c h i l d i n the hope that the parties w i l l negotiate the p a r t i c u l a r terms thereof. I f they cannot agree, or i f one or both spouses spurn the order, then the dilemna begins. The court generally commences by making a very detailed order as to access, but without supervision t h i s w i l l be of l i t t l e value i f the parties are antagonistic towards each other. The options then available to the court (apart from cutting off access e n t i r e l y ) are, a variation of the custody or access r i g h t s , use of i t s contempt powers, or making the payment of maintenance conditional on the spouse with custody permitting a c c e s s . ^ 2 0 Courts are most l i k e l y to use t h e i r contempt powers i n 391 th i s s i t u a t i o n . They are very reluctant to u t i l i z e the f i r s t option because the best interests would have dictated the o r i g i n a l orders, and those-same int e r e s t s may not require a 96 399 change. I t must be remembered that children are not to be bandied around i n the name of punishing an errant spouse. Unfortunately though,' t h i s does occur, and the action develops into a battle between the judge and the defaulting spouse , with the i n t e r e s t s of the children being put aside. For example, i n 323 the case of Martiniuk v Martiniuk and Kowerchuk the access rig h t s of the father were continued even though the children did not want to see him, and there was a strong p s y c h i a t r i c opinion that the children might be harmed, or at least pushed further away from the father. The court found that the children's feelings were as a r e s u l t of the conduct and influence of the mother, and took the attitude that to deny the father his access ri g h t s would be to allow the mother to "beat the s ystem". 3 2 4 As regards the t h i r d option, there have been instances of courts using a f i n a n c i a l lever i n t h i s fashion to enforce access r i g h t s . I t i s the reverse of the situation discussed e a r l i e r , namely, making access conditional on the payment of maintenance. Just as I submitted there that the decisions overlooked the best interests of the children, I suggest that children are the losers i n this exercise as well. Here, the value judgement being made i s that contact with the non-custodial spouse i s more important than the payment of maintenance,' and again I consider t h i s to be an abuse of dis c r e t i o n . For example, i n the case of Kett v Kett and 97 325 M i t c h e l l the mother had moved to another Province e f f e c t i v e l y preventing the father from exercising the access awarded to him.1 The court held that future maintenance payments by the father should be suspended u n t i l such time as the mother made some arrangement s a t i s f a c t o r y to the court to permit i n p r a c t i c a l terms the exercise of the father's r i g h t of access.' In reaching t h i s decision the court distinguished a case of 397 Wright v Wright where the Court of Appeal had taken the view that i n the circumstances of a separation agreement where there was no r e s t r i c t i o n on the residence of the parties,' the husband was not e n t i t l e d to suspend u n i l a t e r a l l y the payment of maintenance under the agreement as a counter-measure to the f r u s t r a t i o n of his r i g h t of access. The court said that i n an o o o application under Section 11 (2) of the Divorce Act, 1968, "the court has a discretion to adjust matters by i t s order as i t considers i n the abest interests of the children and of the p a r t i e s " . ' 3 2 " The defect i n the court's approach though, i s too much emphasis on the alleged r i g h t of the non-custodial parent to access, and not enough emphasis on protecting the economic interests of the children. However, an even more deplorable decision i s the case 330 of Tassou v Tassou.1 There, the Alberta Supreme Court was faced with the si t u a t i o n where the children had refused to see t h e i r father pursuant to an access order. Bowen J.' dealt 331 with the problem in thxs way 98 "From a p r a c t i c a l point of view th i s court has no e f f e c t i v e way of a c t u a l l y p h y s i c a l l y forcing the children to see t h e i r father. I do f e e l / however, that the mother had a duty to do everything within her power to see that the boys see t h e i r father and to carry out the wishes of t h i s court as contained i n my o r i g i n a l judgement.1 I t i s her p o s i t i v e duty to assume t h i s r e s p o n s i b i l i t y . 1 I do not f e e l she has done so.1 I t i s the r e s p o n s i b i l i t y of t h i s court to t r y to ensure that i t s orders are not thwarted by the parties to an action and the only e f f e c t i v e method that I can use to have the access continued i s to use the payment or non-payment of maintenance as inducement to the wife to assume the r e s p o n s i b i l i t y outlined above.' I am therefore ordering that a l l maintenance payments set out i n my o r i g i n a l judgement w i l l be suspended for such length of time that the husband f a i l s to obtain access to the children." Unfortunately, I f a i l to see how t h i s can be j u s t i f i e d as a v a l i d exercise of the court's discretion. 1 With the greatest respect i t seems to me that the children are the losers i n the exercise proposed by Bowen J. 1 In the f i r s t place,' I do not consider i t appropriate for the children to be forced to see the non-custodial parents i f they do not wish to do so.1 The duty of the.custodial parent should be to create an atmosphere conducive to contact with the other parent taking place, and to not place any obstacles i n the way of such contact. In the second place, what the custodial parent does i n r e l a t i o n to access should have no e f f e c t on the maintenance obligation of the other parent. The needs of the c h i l d s t i l l continue." Accordingly, I do not consider t h i s option to be one that courts should have resort to, and the problem of enforcement w i l l need to be resolved i n another fashion, i f 99 indeed i t can be at a l l . Of course, t h i s d i f f i c u l t y i n enforcing access orders 332 was one reason for Goldstein, Freud and S o l n i t recommending that access rights be determined by the custodial spouse alone. 1 However, as I have suggested already, i t i s doubtful whether even t h i s resolves the problem, and i t may create further d i f f i c u l t i e s i n i t s e l f . (2) SPLIT CUSTODY ORDERS Another alternative that i s open to a court i s to make an order for divided custody.1 Here the c h i l d i s ph y s i c a l l y placed i n the care and control of one parent with the other parent having the custody of the c h i l d i n the broad sense; i.'e., the r i g h t of supervising the education, r e l i g i o u s t r a i n i n g , and general upbringing of the c h i l d , and the r i g h t to make decisions having a permanent e f f e c t on the child's 333 l i f e and development. A s l i g h t l y d i f f e r e n t order frequently made i n the present Australian j u r i s d i c t i o n i s to place a c h i l d i n the j o i n t custody of the parties, with one party exercising the day-to-day care and control of the c h i l d , and the other having 334 reasonable access. Each parent retains an equal voice i n the major decisions a f f e c t i n g the development of the c h i l d , 1 0 0 but the parent exercising day-to-day care and control i s e n t i t l e d to make the more mundane decisions regarding the welfare of the c h i l d . The aim of both types of orders i s to prevent one party 335 becoming a mere "weekend" parent. Yet, there are obvious problems. The f i r s t i s to adequately d i f f e r e n t i a t e between custody and care and control, or between mundane and major decisions. Unfortunately though, there i s no case-law providing a d e f i n i t i v e answer here, and the parties are l e f t to t h e i r own devices. Secondly, with a divided custody order there i s the l o g i s t i c d i f f i c u l t y of the parent e n t i t l e d to make the important decisions not having "possession" of the c h i l d . This i s not a problem i n the case of a j o i n t custody order, but rather the d i f f i c u l t y there i s the necessity for a consensus between the parents on those decisions that can be termed "major". Thus, i t i s evident that both kinds of order are only appropriate where the parents are capable of working 337 together for the benefit of the children. Neither order i s workable where there i s animosity and bitterness between the parents. Accordingly, because i t i s common-place to f i n d the parties at loggerheads when a marriage breaks down, i t has t r a d i t i o n a l l y been f e l t that such orders can only be used i n 338 339 rare instances. However, commentators are now suggesting that the f a c t that parties are not co-operating generally, does not mean that they cannot put their differences aside when 101 dealing with issues concerning th e i r children. Indeed, i t i s said that the great majority of parents can separate t h e i r emotional attitudes towards each other when p r a c t i c a l conditions require i t . I t i s f e l t that j o i n t custody i s the appropriate solution because i t allows both parents to exercise t h e i r r i g h t s and to concentrate t h e i r e f f o r t s and energies, on being good parents. The rationale behind t h i s movement i s that more and more researchers are becoming aware of the need for the c h i l d to ret a i n emotional bonds with both parents. The loss of either parent i s p a i n f u l and traumatic to the c h i l d , yet t h i s i s the r e s u l t of an award of sole c u s t o d y . 3 4 0 Now, this i s a l l very well, but the aspect which concerns me i s whether too much i s being expected of the c h i l d , or indeed, of the parents. The pl a i n f a c t of the matter i s that the family unit no longer exists as such, and the parties are separated both i n space and time, each attempting to establish new l i v e s . The c h i l d i s bound to be torn between the two parents and I suggest that, at the very least, the danger i s that he w i l l be confused as to which one to look to for 341 guidance. Thus, I do not e n t i r e l y agree that j o i n t custody i s the solution. F i n a l l y , one other type of order that should be mentioned i s where the parties are awarded j o i n t custody of the ch i l d , and the c h i l d then spends part of the year with one 102 parent and part with the other.' Here, not only must the parents be co-operative but also the c h i l d needs to be extremely 342 f l e x i b l e . Otherwise, with constant changes i n environment and of care-givers,' there would be an extraordinary s t r a i n on his or her emotional s t a b i l i t y . In fact, i t i s d i f f i c u l t to see how such an order can be i n the best interests of a c h i l d , 343 and I suggest that i t too should be used sparingly. (3) CONDITIONS Just as terms and conditions can be imposed on an access order,' the court can ameliorate i t s decision concerning custody by attaching conditions thereto.' For example, a court sometimes wants to grant custody to a parent but i s unhappy about that parent's associations. Here, i t i s possible to attach conditions to the custody order to the e f f e c t that the parent i s only to have custody as long as he or she r e f r a i n s from associating with a named t h i r d party. However, even so, such conditions should be imposed sparingly, and only when there i s p o s i t i v e evidence that the t h i r d party i s a harmful 344 influence on the c h i l d . 103 FOOTNOTES. CHAPTER 3 Barth. "The End of the Road", New York (1969) P. 85 2. The test i s sometimes phrased i n terms of the "welfare and happiness of the c h i l d " . In th i s paper they are used interchangeably. 3. McKee v McKee (1951) 2 D.L.R. 657, per Lord Simons at P. 666. Although Section 11 of the Divorce Act, 1968 (R.S.C., 1970, c. 8) does not state s p e c i f i c a l l y that the welfare of the c h i l d i s the paramount consideration i t has been held that that i s i n f a c t the case (Bray v Bray (1971) 1 O.R. 232 and Wittke v Wittke (I97477l6 R.F.L. 349). Note that Laskin J.A. i n Dyment v Dyment, (1969) 2 O.R. 748, at PP. 750, 751, put to r e s t any notion that the common law r u l e of a father's p r i o r claim to custody, a l l else being equal, prevailed under the Divorce Act, 1968. 4^ (1970) A.C. 668, at P. 710 5. In Re Winsor (1963) 48 M.P.R. 445 at 447, per Furlong C.J. 6. Finla v and Gold. "The Paramount Interest of the C h i l d i n Law and Psychiatry" (1971), 45 A.L.J. 82, at P. 82 7. Re Besant (1879) 11 Ch. D. 508 8* Goldstein. Freud and S o l n i t . "Beyond the Best Interests of the Child i rTl973') 9. Tribe, "Childhood, Suspect C l a s s i f i c a t i o n s , and Conclusive Presumptions : Three Linked Riddles" (1975;, 39 Law and Contemporary Problems 8, at P. 29 10. For an excellent discussion of the ways i n which the resolution of custody disputes d i f f e r from the t r a d i t i o n a l model see Mnookin. "Child Custody Adjudication : J u d i c i a l Functions i n the Face of Indeterminacy" (1975) 39 Law and Contemporary Problems 8, at P. 29. 11• Gosse and Payne. "Children of Divorcing Spouses : Proposals for Reform", Law Reform Commission of Canada, "Studies on Divorce", (1975), 99, at P. 174. For a detailed discussion of the advantages (and the disadvantages) of r u l e - l i k e standards and an indeterminate p r i n c i p l e see Mnookin f ; supra, footnote 10. 104 12. There i s a school of thought that t h i s vagueness w i l l eventually lead to a professional takeover of c h i l d placement. I t i s argued that because the te s t i s so vague, developments i n other d i s c i p l i n e s are too r e a d i l y accepted. 13. See Gosse and Payne, supra, footnote 11, at PP. 175-177, for some examples of guidelines that have been suggested. 14. Mnookin, supra, footnote 10. Also see Gosse and Payne, supra, footnote 11, at P. 175. 15. Also see Finlav and Gold, supra, footnote 6 16. Supra, footnote 10, at P. 292 17. Supra, footnote 11, at PP. 174-175 18. Ibid 19. e.'g.l see B r i t i s h Columbia Royal Commission on Family and Children's Law, F i f t h Report, Part v i , "Custody, Access and Guardianship" (1975). Also see Section 402 of the United States Uniform Marriage and Divorce Act, an Act approved i n 1970 by the National Conference of Commissioners on Uniform State Laws. 20. Supra, footnote 11, at P. 177 21. At P. 55 22. " Section 24, Family Relations Act, 1978 (S.B.C, 1978, c. 22) 23. Section 1 (b) The C h i l d Welfare Act, 1978 (S.O. 1978 c. 85) 24. S.O. 1978 c. 2 25. e.g., Section 1 of the Infants Act (R.S.O. 1970 c. 222). Gibbs (1979), 1 F.L.R.R. 46 and Patton (1979), 1 F.L.R.R. 46 26. Dittner, (1979), 1 F.L.R.R. 73 27. Re Gromoll (1979), 1 F.L.R.R. 76 28. Note that apart from enumerating the factors to be taken into account, presumptions have been developed i n an attempt to reduce the burden of t h i s determination. However, th i s approach has also proven unacceptable and I 105 discuss the same la t e r i n t h i s paper i n the context of parental r i g h t s . Also see Mnookin. supra, footnote 10, at P. 227. 29. Mnookin. i b i d , at PP. 262, 282-283, talks of t h i s i n terms of the establishment of "intermediate premises or r u l e s . " 30. Mnookin. idem, at P. 284, postulates that such p r i n c i p l e s have a detrimental e f f e c t on private negotiations. For example, a rule providing for maternal preference "gives mothers as a class more bargaining power than fathers i n negotiations over custody." In comparison, the "best-interests-of-the-child standard provides a more 1 neutral ' backdrop for both private negotiations and adjudication." 31. Hepton v Maat (1957), 10 D.L.R. (2d) 1; Martin et a l . v D u f f e l l (1950) 4 D.L.R. 1; Re A q a r - E l l i s (1883). 24 Ch. D. 317; Meikel v Authenac (1970)7 74 W.W.R. 699 32. Hepton v Maat. i b i d . But note Re Perry. (1962), 33 D.L.R. (2d) 216. Also see Foster and Freed, "A B i l l of Rights for Children" (1972) 6 Fam. L. Q. 343 at P. 350 33. Supra, footnote 4 34. (1973) 3 O.R. 921 35. Ibid at PP. 926-927 36. Idem at P. 933 37. For a case where Re Moores and Feldstein was accepted but where i t was found that the t i e of affection was the overbalancing consideration, see More v Primeau (1978), 2 R.F.L. (2d) 254. 38. Supra, footnote 31 39. Supra, footnote 34, at PP. 927-928 40. e.g. at P. 1 of the report 41. (1974), 16 R.F.L. 266 42. (1977), 21 N.S.R. (2d) 631 43. Also see More v Primeau, supra, footnote 37 106 44. Funk v Funk (1968) 6 W.W.R. 137 45. Wiltshire v W i l t s h i r e (1975), 20 R.F.L. 50 46. Duqav v Duqay (1978), 5 R.F.L. (2d) 33 47. Interestingly enough, Section 1 of the new Ontario Family Law Reform Act, 1978, supra, footnote 24, defines "parent" i n a way which i s no longer confined exclusively to a blood unity. 48. Leon, "Recent Developments i n Legal Representation of Children : A Growing Concern with the Concept of Capacity". (1978) 1 Can. J . Fam. L. 374, at PP. 421-422. 49. Ellsworth and Levy, "Le g i s l a t i v e Reform of C h i l d Custody Adjudication : An E f f o r t to Rely on S o c i a l Science Data i n Formulating Legal P o l i c i e s " (1969), 4 Law and Society Review 167. 50. Chisholm. "Obtaining and Weighing the Children's Wishes; Private Interviews with a Judge or Assessment by an Expert and Report" (1976), 23 R.F.L. 1, at P. 1. 51. As was said by Katkin, Bullington, and Levine when point-ing out the undesirable side effects of the psychological parent theory of Goldstein, Freud and S o l n i t (see i n f r a P. 29 et seq.) "(P)sychology does not offer the same guarantees of clear-cut issues as biology". (Katkin, Bullington and Levine "Above and Beyond the Best Interests of the C h i l d : An Inquiry into the Relationship Between S o c i a l Science and S o c i a l Action" (1974), 8 Law and Society Rev. 669, at P. 679). 52. Weiler and Berman, "Re Moores and Feldstein - A Case Comment and Discussion of Custody P r i n c i p l e s " (1974), 12 R.F.L. 294, at P. 304. 53. Rutter, "Maternal Deprivation Reassessed" (1972): Goodman. "Child Custody Adjudication; The P o s s i b i l i t y of an I n t e r d i s c i p l i n a r y Approach" (1976), 50 A.L.J. 644. 54. e.g. see Guggenheim, " C r i s i s i n the Family" (1978), 5 C i v i l L i b e r t i e s Review 76. 55. However, the concept i t s e l f was received into l e g a l thoughtsome time ago; e.g. see "Alternative to * Parental Right ' i n Child Custody Disputes Involving Third P a r t i e s " (1963), 73 Yale L.J. 151, 158 etseq. 107 56. Goldstein. Freud and S o l n i t . supra, footnote 8 57. Ide a l l y they should be the same, but by force of circumstances t h i s i s not always the case. For example, a c h i l d might be abandoned by the b i o l o g i c a l parent, or l e f t on a temporary basis with t h i r d p a r t i e s . 58. Rutter. supra, footnote 53 59. Skolnick "The Limits of Childhood : Conceptions of Child Development and S o c i a l Context" (1975), 39 Law and. Contemporary Problems 38, at P. 40, Bowlby: Freud and Burlinqham, "Infants Without Families : The "C~ase for and against Residential Nurseries" (1944), Napier. "Success and Fail u r e i n Foster Care" (1972) 2 B r i t . J . Soc. Work 187, Ellsworth and Lew, supra, footnote 49. 60. The authors would place a heavy onus on a person wanting to a l t e r such an arrangement. The burden would be to show that the current custodian i s u n f i t or that the c h i l d i s unwanted i n the present family,and that of the available alternatives, the person seeking custody provides the least detrimental for the child's physical and psychological well-being. 61. e.g.,; see Saxon v Saxon (1974) 6 W.W.R. 731, at P. 739 62. Skolnick. supra, footnote 59; Mnookin. supra, footnote 10; In Re W (an infant) (l97l) AX. 682; In Re S (1977) 3 W.L.R. 575. 63. Leon, supra, footnote 48; Bersoff. "Representation for Children i n Custody Decisions - A l l that G l i t t e r s i s not Gault" (1976), 15 J . Fam. L. 27, at P. 42. 64. Supra, footnote 8, at PP. 32-34 65. Ibid, at P. 38 66. Bersoff. supra, footnote 63, at P. 43, makes a similar suggestion. 67. I t i s int e r e s t i n g to note that Section 409 of the United States Uniform Marriage and Divorce Act, supra, footnote 19, provides that no application to vary a custody order can be made within 2 years after the making of the order unless there i s reason to believe that the c h i l d i s i n serious danger. 68. Infra P. 89 108 69.. More v Primeau. supra, footnote 37 70. The Australian Family Court for example has received heavy c r i t i c i s m for delays i n hearing custody disputes. Generally though i t has been unwarranted, and the blame can be traced to either the l i t i g a n t s or t h e i r s o l i c i t o r s . 71. Supra, footnote 8, at P. 51 72. Mnookin t ; supra, footnote 10, at P. 26l, also sees n p r e d i c t i v e a b i l i t y as a fundamental obstacle to custody resolution. 73. Supra, footnote 8, at P. 53 74. Smith v Goulet (1974), 50 D.L.R. (3d) 321 75. Supra, footnote 10, at P. 287 76. Also see i b i d at P. 255, footnote 154 77. Of course, there have been favourable comments as well. See Epstein, Book Review, (1973), 1 J . of Psychiatry and Law 377. 78. Supra, footnote 51 79. Ibid, at P. 674 80. Foster "A Review of Beyond the Best Interests of the C h i l d " , (1976) 12 Willamette L.J. 545. 81. Ibid at P. 546 82. Idem at P. 551 83. Indeed, t h i s occurred i n the case of Pierce v Yerkovich. (1974), 363 N.Y.S. (2d) 403, where the court rejected " the authors' theory r e l a t i n g to access. In so doing the court said this ( i b i d at P. 413) : "The concept of psychological parenthood should never be permitted to obscure the truth that 1 the natural father,' as well as the natural mother, remains a parent no matter how estranged parent and c h i l d become. A stranger may by conduct become a foster parent; but no conduct can transmute a natural parent into a stranger.' (Beaumet v U.S. 344 U.S. 82,85 ... (opinion, Douglas J . dissenting i n p a r t ) ) . " 109 84. See also Read, Book Review, (1974), 13 J . of Fam. L. 601 at P. 607 85. Wechsler. Book Review, (1973), 1 J." of Psychiatry and Law 391. C f . Kubie. "Provision for the Care of Children of Divorced Parents : A New Legal Instrument", (1964), 73 Yale L.J. 1197. 86. Dembitz. "Beyond Any Dis c i p l i n e s Competence", (1974), 83 Yale L.J. 1304. 87. Also see Mnookin.. supra, footnote 10 88. See Montgomery County Department of S o c i a l Services v Sanders (1978) 4 Fam. L. Reporter 2152. 89. De Forest v De Forest, (1975), 228 N.W. (2d) 919 and Reflow v Reflow, T l 9 7 6 ) , 545 P. (2d) 894 90. Mnookin rs of the same opinion (supra, footnote 10, at P. 255, footnote 154). 91. R.S.C, 1970, c. 8; c f . Section 402 of the United States Uniform Marriage and Divorce Act. (Supra, footnote 19). 92. S.B.C., 1978, c. 22 93. Supra Chapter 1 94. Belfochi v Belfochi (1920) 1 W.W.R. 248 at P. 253: Re M o i l l i e t (1960). 56 W.W.R. 458; Re Chave (1967), 62 W.W.R. 193. Also see Re Squire, supra, footnote 41. 95/ Re Pittman and Pittman (1972) 1 O.R. 347; Gauci v Gauci (1973) 1 O.R. 393. 96. Nielsen v Nielsen (1971), 16 D.L.R. (3d) 33, at P. 44. 97. (1962) 3 A l l E.R. 1 98. Ibi d at PP. 3,4 99. Gauci v Gauci, supra, footnote 95; Conrad v Conrad (1973), 7 N.S.R. (2d) 684; Re Pittman and Pittman, supra, footnote 95; Korteling v Kortelinq and Buse (19747, 19 R.F.L. 21. But see H i l l v H i l l (1975), 19 R.F.L. 119, at P. 122, and note that some courts have been at pains to distinguish Re L. For example, i n Dyment v Dyment. supra, footnote 3, Disbery J . disposed of the case by holding that there was an adverse finding by Lord Denning regarding the 110 f i t n e s s of the mother. In truth though, the pl a i n f a c t of the matter was that the mother was a good mother. 100/ (1975), 62 D.L.R. (3d) 267 101. (1975), 62 D.L.R. (3d) 301 102. Supra, footnote 100, at PP. 278-279 103. Kravnvk v Kraynyk (1978), 5 R.F.L. (2d) 17 104. Supra P. 40 105. S (B.D.) v S (D.J. ) (1977) 1 A l l E.R. 656; Re K (1977) 1 A l l . E.R. 647. 106. Supra, footnote 4 107. Supra, footnote 105 108. Supra P. 20 109. Supra, footnote 105, at P. 649 110. Nielsen v Nielsen. supra, footnote 96 H I . Re F (1969) 2 A l l E.R. 766, at PP. 769-770 112. Re M o i l l i e t . supra, footnote 94 113. Harareaves v Hargreaves (i960) 32 W.W.R. 157 114. Re Cvr Infants (1969), 68 W.W.R. 273; Richardson v Richardson et a l . ( l 9 7 l ) , 17 D.L.R. (3d) 431; Torresan v Torresan (1972). 6 R.F.L. 16: H i l l v H i l l , supra, footnote 99; Willoughbv v Willouqhby (19517 P. 184; P h i l l i p s v P h i l l i p s (1974) 44 D.L.R7(3d) 750. Contra see Friday v Friday (1976), 20 R.F.L. 202. There are even instances where setting up a home with a de facto wife can be p o s i t i v e l y advantageous. In M i l l e r v M i l l e r . (1976), 27 R.F.L. 189, custody of three children was transferred to the father on the ground that the children would benefit from a two-parent rel a t i o n s h i p . I t appeared that the mother was l i k e l y to remain single, whereas the father intended to marry the woman with whom he was l i v i n g . 115. In Re D (1977) A.C. 602, per Lord Simon at P. 640 I l l 116. Lord Simon put i t succinctly when he c r i t i c i z e d the appellate judge for treating the matter as a "moral abstraction, without regard to the actual evidence before the ( t r i a l ) judge" (Ibid at P. 637). 117. Idem, at P. 629 118. (1974), 18 R.F.L. 132 119. (1976) 2 W.W.R. 462 120. Ibi d at P. 468 121. Supra, footnote 118 122. (1978), 3 R.F.L. (2d) 327 123. Indeed, i t i s i n t e r e s t i n g to note that Goldstein. Freud and S o l n i t . supra, footnote 8, consider that homosexual couples would not be adequate psychological parents. Parents, they believe, who "r e j e c t t h e i r own male or female i d e n t i t y " ( i b i d at P. 17) are unable to nurture a child's sense of i d e n t i t y and self-worth. (Also see idem, at P. 15). 124. This dilemna presents a p a r t i c u l a r problem of j u r i s d i c t i o n where the c h i l d i s removed from one Province to another, or from one country to another, but i t i s not intended to deal with t h i s problem in t h i s paper. For a useful discussion of t h i s aspect see Robinson. "Custody and Access" i n Mendes da Costa (ed.) "Studies i n Canadian Family Law""Tl9727 543, at PP. 557-560, and the 1977 Supplement thereto at PP. 218-222. 125. Clarkson v Clarkson (1972), 19 F.L.R. 112; In Re K (Infants) (1973) 3 W.L.R. 408 126. (1971), 4 R.F.L. 129 127. Ibid at P. 140 128. In the words of Mnookin, supra, footnote 10, at P. 251: "In a divorce custody f i g h t , a court must evaluate the attitudes, dispositions, capacities, and shortcomings of each parent to apply the best interests standard". 129. R.S.C, 1970, D. 8 112 130. S.B.C., 1978, c. 22 131. Re McMaster and Smith e t _ a l . (1972) 1 O.R. 416; Voghell v Voqhell and Pratt"(No. 2) (1962), 35 D.L.R. (2d) 592. 132. Nielsen v Nielsen, supra, footnote 96; McGee v Waldern and Cunningham T I 9 7 1 ) 4 W.W.R. 684; C s i c s i r i v C s i c s i r i (1973), 13 R.F.L. 263, and l a t e r (1974) 17 R.F.L. 31 133. Re Milsom (1971), 4 R.F.L. 129 134. 0'Leary v 0'Learv (1923) 1 D.L.R. 949 at P. 977; Barea v Barea (1972), 9 R.F.L. 78 135. Pinner v Pinner, and Godfrey (1962), 40 W.W.R. 375 136. Humphreys v Humphreys (1970), 4 R.F.L. 64 137. I t has even been suggested that there should always be an investigation of the mental normalcy of the proposed custodian. This derives from studies which conclude that one of the most important factors i n the development of a c h i l d , who i s i n the exclusive custody of his or her mother, i s the mental normalcy of the mother. McCord, McCord and Thurber, "Some Effects of Paternal Absence on Male Children" (1962), 64 J . of Abnormal S o c i a l Psychology 361, at P. 364. Also see Finlay and Gold, supra, footnote 6, and Gore v Gore (1978), 4 Fam. L. Reporter 2181. 138. Except perhaps for any c h i l d involved. But t h i s depends upon his or her age and degree of maturity. 139. See D v D, supra, footnote 122, at PP. 332-333 140. (1966), 140 N.W. (2d) 152 141. Ibid at P. 156 142. Idem at P. 154 143. Following the t r a g i c deaths of the natural mother and another c h i l d of the marriage, the father had temporarily placed the subject c h i l d with the maternal grandparents and he had remained there for 2 years before the matter came to t r i a l . 144. For example, the court made statements such as the following : 113 "We believe security and s t a b i l i t y i n the home are more important than i n t e l l e c t u a l stimulation i n the proper development of a c h i l d . " (At P. 156). 145. See Foster. "Adoption and C h i l d Custody : Best Interests of the Child?" (1972), 22 Buffalo L. Rev. 1, at P. 5. Also note the comments of the t r i a l court i n disregarding t h i s evidence (140 N.W. (2d) 152, at P. 156). 146. S.B.C, 1978, c. 22 147. R.S.C., 1970, D. 8 148. Hepton v Maat. supra, footnote 31, per Rand J . at P. 608; Peptuck v Deptuck (1966), 56 D.L.R. (2d) 634, at P. 650. Also see Shanks v Shanks ( l 9 7 l ) , 3 R.F.L. 86. 149. Robinson. supra, footnote 124, at P. 594, refers to a study which concluded that "variations i n c h i l d behaviour were d i r e c t l y related to the socio-economic environment i n which the c h i l d was l i v i n g . " The study i s reported i n Thornes, "Children with Absent Fathers" (1968) 30 J . of Marr. and Fam. 89. 150. Talsky v Talsky. supra, footnote 100; Leboeuf v Leboeuf 1X928) 2 D.L.R. 23 151. McDonald v McDonald, supra, footnote 101: Re F (1969) 2 A l l E.R. 766; Re Allan and Allan (1958) 16 D.L.R. (2d) 172; Beck v Beck~Tl950) 1 D.L.R. 492 152. Re Bennett Infants (1952) 3 D.L.R. 699: Re A l l a n and A l l a n , i b i d ; Re Balaski and Patterson (i960), 23 D.L.R. 2d 275; Re Baqqio (1971), 3 R.F.L. 74; Nelson v Findlay and Findlay (1974) 15 R.F.L. 181. 153. The United States Supreme Court had this to say i n Ford v Ford (1962), 371 U.S. 182, At P. 193 : "Experience has shown that the question of custody, so v i t a l to a child's happiness and well-being, frequently cannot be l e f t to the discretion of parents. This i s p a r t i c u l a r l y true where ... the estrangement of husband and wife beclouds parental judgement with emotional prejudice." 154. Re Allan and A l l a n , supra, footnote 151 155. Laberqe v Laberqe (1974), 16 R.F.L. 60; Re Lenard (1971), 3 R.F.L. 107. 114 156. Urmder Section 74 (4) (b) of the Family Relations Act, 1978 (S.B.C. 1978, c. 22), a provision i n an agreement that i s enforceable under sub-section (2) thereof can be altered, varied or rescinded by the court in the same fashion as an order of such court. In addition, i t i s quite clear that the court's power under Section 35 of the Act to make a custody order i s not fettered by the existence of a custody agreement. See also Section 55 ( l ) of the Ontario Family Law Reform Act 1978, (S.O. 1978 c.2), which e x p l i c i t y provides that a custody agreement i s subject to the overriding powers of a court. 157. In the past, courts have been content to defer to the suggestion that "the father knows far better as a r u l e what i s good for his children than a court of j u s t i c e can". (Re A g a r - E l l i s . supra, footnote 31 at PP. 337-338; also see Martin et a l . v D u f f e l l , supra, footnote 31 and Heoton v Maat, supra, footnote 31). However, I submit that t h i s does not accord with r e a l i t y i n many instances. 158. In the context of access see Brown.CCH. , Family Law, 2109 . 159. On the other hand, Mnookin. supra, footnote 10, at P. 288, suggests that "courts should not second-guess parental agreements" for these reasons. Unfortunately, I cannot agree with him i n t h i s regard. 160. Leavall. "Custody Disputes and the Proposed Model Act" TT968) 2 Ga. L. Rev. 162. In Connecticut, l e g i s l a t i o n provides that the court s h a l l appoint counsel i n any case where an agreement has been submitted with respect to a c h i l d (Conn. Laws 1973, P.A. 73-373 Amending Conn. Gen. Stat. Section 46.16). 161. Supplement to the Commission's F i f t h Report, Part i i i , "Children's Rights" (1975). 162. The Law Reform Commission of Canada i n i t s report on Family Law (1976) recommended that there should be "review by the court of parental agreements respecting children, with power to disapprove where statutory c r i t e r i a are not met" (At P. 49, and see P. 54). 163. S.B.C, 1978, c. 22 115 164. Gosse and Pavne. supra, footnote 11 165. E.g., see Section 24 of the Family Relations Act, 1978 166. R.S.C. 1970 D. 8 167. Nielsen v Nielsen. supra, footnote 96 168. This i s another example of a presumption developed to provide some guidance for the court i n view of the wide discretion they have, and to of f s e t the general lack of evidence. 169. i . e . , u n t i l the c h i l d reached the age of 7 years. 170. Austin v Austin (1865), 34 Beav. 257 171. B e l l v B e l l (1955) O.W.N. 341, per Roach J.A. at P. 344; Dunn v Dunn and Hoicombe (1954) O.W.N. 561 172. W v W (1968) 3 A l l E.R. 408; Kerr v Kerr (1971), 5 N.S.R. (2d) 528: Re C (A) (1970) 1 W.L.R. 288 173. Re Orr (1933) O.R. 212; Weeks v Weeks (1955), 3 D.L.R. 704. 174. Supra, footnote 170 175. Ibid at P. 257 176. Gauci v Gauci. supra, footnote 95. This approach was taken even as recently as 1977 i n the case of Knowles v Knowles (1977), 2 R.F.L. (2d) 396 177. Talskly^v Talsky. supra, footnote 100; Re Pittman and Pittman. supra, footnote 95; Saxon v Saxon, supra footnote 61; K v K (1976) 2 W.W.R. 462. 178. R.S.B.C. 194S c. 139 179. S.B.C, 1978, c. 22 180. Power on Divorce and Other Matrimonial Causes, Third edition Volume 1 (1976); Chisholmy supra,' footnote 50, at P. 3. Also see P h i l p o t t v P h i l o o t t (1955) O.W.N. 344 and Desilets v Desilets (1975), 22 R.F.L. 87. This i s p a r t i c u l a r l y evident i n the United States; e.g. Mnookin reports as follows (P. 235-236) : "At the present time, maternal-preference standards are being displaced by a formal insistence on a neutral application of the best-interests standard 116 ... No f a u l t divorce, the changing s o c i a l conception of appropriate sex r o l e s , and the women's movement are a l l contributing to t h i s trend." 181. Indeed, see Smith v Smith and Morrow (1978), 6 F.L.D. 291 where the t r a d i t i o n a l roles were completely reversed. This change i n r o l e i s also noted i n Guggenheim, supra, footnote 54, at P. 77. 182. Ellsworth and Levy, supra, footnote 49 183. The concept of maternal deprivation has gained very wide currency, and i t has been held to be the cause of conditions as diverse as mental subnormality, delinquency, depression, dwarfism, acute distress and aff e c t i o n l e s s psychopathy (Bowlby, "Maternal Care and Mental Health" (1952); Ainsworth. "The E f f e c t s of Maternal Deprivation : A Review of. Findings and Controversy i n the Context of Research Strategy", i n Deprivation of Maternal Care : A Reassessment of i t s E f f e c t s , W.H..O. , Geneva (1962)). However, th i s i s despite severe methodological and other c r i t i c i s m s (Casher. "Perceptual Deprivation i n I n s t i t u t i o n a l Settings", i n Newton and Levine (Eds.), "Early Experience and Behaviour" (1968); Casher. "Maternal Deprivation : A C r i t i c a l Review of the Literature." Monog. Soc. Res. C h i l d D evel. Vol. 26 No. 2 ( l 9 6 l ) ; Yarrow, "The C r u c i a l Nature of Early Experience", in Glass (Ed.) "Environmental Influences" (1968).), with one problem i n p a r t i c u l a r being that studies of maternal deprivation are generally concerned with children i n i n s t i t u t i o n s or foster homes. Thus, doubts can be raised as to the value of t h i s evidence i n the resolution of custody disputes. 184. Spitz, "The Role of Ecological Factors i n Emotional Development i n Infancy," (1949), 20 Child Development 145, at P. 155. However, i t should be noted that subsequent studies have required a reappraisal of such extreme b e l i e f s (Yarrow, "Separation from Parents During Early Childhood", i n Hoffman and Hoffman (Eds.), Review of Child Development Research Vol. 1 (1964)). I t i s now the case that t h i s would be considered an i l l u s t r a t i v e example of what can happen, rather than a d e f i n i t i v e s t a t i s t i c a l account of what w i l l happen. 185. For a b r i e f summary of both the short term and long term effects of maternal deprivation see Rutter, supra, footnote 53, at PP. 29-30, 33-34 respectively. Also see Heinicke and Westheimer, "Brief Separations" (1965) 117 186. Ellsworth and Levy, supra, footnote 49, point out that t h i s i s a common problem with studies that are i n any way relevant to custody adjudication. 187. Rutter. supra, footnote 53; Bersoff. supra, footnote 63, at P. 42. 188. Skard. "Maternal Deprivation : The Research and i t s Implications", (1965) J . Marriage and the Family 333, at PP. 338-341. 189. Supra, footnote 183, at PP. 26-27. Also see Rutter. supra, footnote 53. 190. Ellsworth and Levy, supra, footnote 49; Rutter. supra, footnote 53; Rosen, "Joint Custody : In the Best Interests of the Child and Parents" (1978), 1 R.F.L. (2d) 116; B i l l e r . "Paternal Deprivation" (l974). 191. R.G. Andry, "Delinquency and Parent Pathology" (i960). Also see Wallerstein and Kelly. "The E f f e c t of Parental Divorce : Experiences of the C h i l d i n Early Latency" (1976), 46 Am. J . of Orthopsychiatry 20, at PP. 26, 28, 31. 192. Glueck and Glueck. "Unravelling Juvenile Delinquency" (1950); Gregory, "Antirospective Data Following Childhood Loss of a Parent" (1965) 13 Arch. Gen. Psychiat. 99, at P. 102. Yet, these studies cannot be considered conclusive because there has been other research i n d i c a t -ing that there i s very l i t t l e d i f f e r e n t a t i o n i n the rate of delinquency between boys l i v i n g i n father-absent homes and boys l i v i n g i n homes where fathers are present (McCord, McCord and Thurber. supra, footnote 137). I t i s also important to bear i n mind that some s c i e n t i s t s suggest that i t i s not the deprivation which i s the prime cause of the delinquency, but rather, the discord and disharmony preceding the separation (see Rutter. supra, footnote 53, at P. 108, and the references cited therein). 193. B i l l e r . supra, footnote 190, and B i l l e r . "Father, C h i l d and Sex Roles : Paternal Determinants of Personality Development." (1971). 194. Most studies that have been made i n thi s area are limited i n t h e i r scope. For example, Heilerington conducted a well-controlled study concerning father absence and a g i r l ' s development, but i t was r e s t r i c t e d to g i r l s between the ages of 13 and 17 years. I t also seems that 118 the majority of research has concentrated on j u s t one aspect, the e f f e c t of paternal deprivation on sex r o l e functioning ( B i l l e r . i b i d ) . 195. Rutter. supra, footnote 53, at P. 118 196. Bradbrook. "The Relevance of Psychological and Ps y c h i a t r i c Studies to the Future Development of the Laws Governing the Settlement of Inter-Parental Child Custody Disputes", (1971), 11 J . Fam. L. 557, at P. 586. 197. Ibid 198. Finlay and Gold, supra, footnote 6, at P. 89. 199. Rosen, supra, footnote 190, at PP. 117, 120-121 200. Rutter. supra, footnote 53; B i l l e r , supra, footnote 193 201. In 1964 Schaffer and Emerson found that the sole p r i n c i p a l attachment was to the mother i n only one half of the 18 month old children they studied and i n nearly one t h i r d of cases the main attachment was to the father (Schaffer and Emerson. "The Development of S o c i a l Attachments i n Infancy," Monogr. Soc. Res. C h i l d Devel., Vol. 29, No. 94 (1964)). 202. Schaffer. "The Growth of S o c i a b i l i t y " ( l 9 7 l ) . 203. Goodman, supra, footnote 53, at P. 646 204. B i l l e r . Supra, footnote 190; Roman. "The Disposable Parent" (1977), 15 C o n c i l i a t i o n Courts Review 1. 205. See Irving and Schlesinqer. "Child Custody : Canada's other Lottery", i n Baxter and Eberts (Eds.) "The C h i l d and the Courts" (1978) 71, at P. 74 et seq., and the references cited therein;- McDermott. "Divorce and i t s P s y c h i a t r i c Sequelae i n Children"77*1970), 23 Archives of General Psychology 421. 206. See Infra PP. 71-72 207. More v Primeau, supra, footnote 37; Smith v Goulet, supra, footnote 74. 208. S (B.D.) v S (D.J. ), supra, footnote 105. Of course though, i t i s p e r f e c t l y i n order for the court to consider how the u n i l a t e r a l action of the parent creating the situation bears on his or her f i t n e s s as a parent (Dyment v Dyment. supra,, footnote 3). 119 209. (1926) Ch. 676 210. Ibid at P. 684 211. A similar conclusion was reached i n the more recent case of Conrad v Conrad, supra, footnote 99, indicating that the passage of time has not necessarily affected th i s view. Also see Duqay v Duqay. supra, footnote 46, at P. 42, and Menasce v Menasce (1963) 48 M.P.R. 281, at P. 295. 212. See supra, footnote 59, Also see Rosen, supra, footnote 190, and Goodman. supra, footnote 53. 213. Goldstein. Freud and S o l n i t . supra, footnote 8. Also see supra, footnote 55. 214. See Rosen, supra, footnote 190, at P. 117, where he says t h i s : "Child development studies (have) established that the strong bonds that a c h i l d forms i n his attachment to a loving and caring person i s esse n t i a l for healthy personality growth and i f deprived of such experience of love and caring, or i f separated from the person giving the caring, the c h i l d w i l l suffer degrees of emotional trauma with very serious consequences." Also see Rutter, supra, footnote 53, at P. 118-119 215. Supra, footnote 4, at P. 715 216. This approach was approved by the Court of Appeal i n Re Moores and Feldstein et a l . . supra, footnote 34, at P. 929. Also see Berger v Berqer (1974), 17 R.F.L. 216 and Re Squire, supra, footnote 41. I t i s also i l l u s t r a t i v e to note that courts i n England have taken j u d i c i a l notice of the harmful effects of removal from a good stable home. See In Re W (an infant) (l 9 7 l ) A.C. 682 and In Re S (1977) 3 W.L.R. 575. 217. Moreover, there i s evidence that not a l l breaks i n continuity involve bond disruption. I t depends on the relatio n s h i p i t s e l f , and, of course, on whether any bonds have been formed at a l l . See Rutter. supra, footnote 53. 218. See In Re McGrath (Infants) (1893) 1 Ch. 143, at P. 148 where Lindley L.J. said that, "(t)he duty of the court ... i s to leave the c h i l d alone, unless the court i s s a t i s f i e d that i t i s for the welfare of the c h i l d that some other course should be taken." 120 219. See generally Rutter, supra, footnote 53. Also see More v Primeau, supra, footnote 37. 220. I t has been said that infants under 3 months display no measurable adverse effects from a change of parent; that between 3 and 6 months there i s evidence of appreciable distress consequent upon a change, but at 5 years of age no r e s i d u a l effects can be found; and that children between 6 and 12 months exhibit marked distress with a change, and r e s i d u a l effects are s t i l l present at 5 years of age (Yarrow, supra, footnote 183.) As regards children over 12 months of age a l l that can be said i s that a change of parent may r e s u l t i n prolonged psychological impairment (Bowlby, "Attachment and Loss" (1973) Volume Two, Separation, PP. 25-32). 221. e.g. see McGee v Walden and Cunningham, supra, footnote 132. 222. (1963), 42 W.W.R. 257. Also see In Re Jordan (1973), 2 F.L.D. 71. 223. Rutter, supra, footnote 53, at P. 34 et seg.: Heinicke and Westheimer. supra, footnote 185 at PP. 316-318. Also see Jones v Jones (i960) N.S.W.R. 762, at P. 770. 224. Baxter, "Family Welfare and the Courts" (1978), 56 Can. Bar. Rev. 37, at P.< 41. 225. ' Bradbrook. "An Empirical Study of the Attitudes of the Judges of the Supreme Court of Ontario Regarding the Workings of the Present Child Custody Adjudication Laws" (1971), 49 Can. Bar,Rev. 557 at PP. 565-566. 226. In Section 10 (b) of the Divorce Act, 1968 (R.S.C, 1970, D. 8), the l e g i s l a t i v e direction i s for the court to make "such interim orders as i t thinks f i t and j u s t " . Section 9 ( l ) of the Family Relations Act, 1978 (S.B.C, 1978, c. 22), uses the term "as i t considers reasonable". Also see Papp v Papp, (1970) 1 O.R. 331; Dyment v Dyment, supra, footnote 3; Hanson v Hanson (1974), 18 R.F.L. 301. 227. Papp v Papp, i b i d ; Dyment v Dyment. i b i d ; Hryhoriw v Hrvhoriw(l973), 9 R.F.L. 287; Cropper v C r o p p e r ~ T l 9 7 4 ) , 16 R.F.L. 114. 228. This was also recognised by the Law Reform Commission of Canada i n i t s Report on Family Law (1976) at P. 60. 121 229. More v Primeau. supra, footnote 37 230. Supra PP. 47-48 231. Dvment v Dyment. supra, footnote 3 232. (1971) 2 O.R. 516, af f' d (1972) 1 O.R. 212 233. However, see Sobanski v Sobanski (1973), 9 R.F.L. 318 where Zuber J. 5 said t h i s (at B. 319) : "I am t o l d in argument that I should not disturb the status quo by ordering the children to go back to the father and the paternal grandparents, yet r e a l l y i t i s the mother who disturbed a sat i s f a c t o r y status quo by taking the children i n the f i r s t place. I t would seem to me to be an odd state of a f f a i r s where she did something wrong to disturb the status quo and now says the court i s c a s t l i n the r o l e of the v i l l a i n which, by ordering a second change i n custody, Is r e a l l y . the agency that disturbs the status quo. To accede to t h i s argument would r e a l l y be to award her for having ... snatched the children." 234. Re M o i l l i e t . supra, footnote 94; Nielsen v Nielsen, supra, footnote 96; S i n c l a i r v S i n c l a i r (1974), 17 R.F.L. 202;"Re Bennett infants (1952), 3 D.L.R. 699; Knowles v Knowles. supra, footnote 176. 235. Zinck v Zinck (1973), 6 N.S.R. (2d) 622; Currie v Currie (1975), 18 R.F.L. 47. 236. Torresan v Torresan. supra, footnote 114 237. Kramer v Kramer and Merkelbaq. (1968) 56 W.W.R. 303; Kave v Kave (1974) 6 O.R. (2d) 65 238. e.g., i n talking about the practice of the Court of Chancery i n England, Kay L.J. of the English Court of Appeal, had t h i s to say i n The Queen v Gynqall. (1893) 2 QB 232, at P. 251 : "When one comes to consider what i t i s that the Court of Chancery had to^determine and what the main consideration i n exercising i t s j u r i s d i c t i o n was, v i z . , what was r e a l l y for the welfare of the ch i l d , whose in t e r e s t s were being discussed, i t i s obvious that, i f the ch i l d were of any reasonable age the Court would hardly desire to determine that question without seeing and speaking to the c h i l d and ascertaining i t s own views on the matter." 122 239. e.g.% see Section 24, Family Relations Act, 1978 (S.B.C., 1978, c. 22); Law Reform Commission of Canada Report on Family Law (1976), at P. 13; British Columbia Royal Commission on Family and Children's Law, Fifth Report Part v i , "Custody Access and Guardianship", (1975), at PP. 13-14; Ontario Law Reform Commission, Report on Family Law, Part i i i - Children, (1973), at P. 121; Section 402 United States Uniform Marriage and Divorce Act, supra, footnote 19. It i s also interesting to note that one of the 12 basic rights of children proposed by the British Columbia Royal Commission on Family and Children's Law i s the right to be consulted in a l l decisions relating to guardianship, custody, or a determination of status (Fifth Report, Part i i i , "Children's Rights", (1975) at P. 8). 240. Chisholm. supra, footnote 50 241. Supra, footnote 4 242. There is some empirical data supporting this. Ellsworth and Levy report as follows : "In a study of successes and failures of foster home placement, Malone (1942) found s t a t i s t i c a l l y significant differences in the proportion of successes according to whether the child agreed to the arrangement (80% successes) or rejected i t (44% successes). " Ellsworth and Levy, supra, footnote 49 243. Re Allan and Allan, supra, footnote 151, at P. 182; Stevenson v Florant. (1925) S.C.R. 532, aff'd (1927) A.C. 211; Saxon v Saxon, supra, footnote 61; Wakaluk v Wakaluk (1976) 25 R.F.L. 292. 244. Sharpe v Sharpe. (1974), 14 R.F.L. 151; Currie y Currie. supra, footnote 235; Farden v Farden (No. 1) (1970X 3 R.F.L. 315; Re Allan and Allan, ibid; Saxon v Saxon, ibid. 245. Chisholm. supra, footnote 50 246. Re Allan and Allan, supra, footnote 151, per Sheppard J.A. at PP. 182-183; Saxon v Saxon, supra, footnote 61. 247. See generally Leon. supra, footnote 48 and Bersoff, supra, footnote 63, at P. 42. 248. Wakaluk v Wakaluk, supra, footnote 243 123 249. Bradbrook. supra, footnote 225, at P. 560. 250. Sharpe V Sharpe. supra, footnote 244; Shapiro v Shapiro. (1973), 33 D.L.R. (3d) 764; Re Keuhn. (1976), 29 R.F.L. 72. Smith v Reid. (1974). 17 D.L.R. 59. 251. Re A g a r - E l l i s . supra, footnote 31; Thomasett v Thomasett. (1894) P. 295. 252. Act No. 53 of 1975 253. The practice of the Court i s not even to make a consent order without f i r s t ascertaining the wishes of the c h i l d . 254. The only example of special circumstances that has been accepted by the courts thus f a r i s where there i s evidence that physical or moral danger w i l l r e s u l t i f the child's wishes are carried out (in the Marriage of Todd'(No. 2) (1976) 1 Fam. L.R. 11,186 per Watson J . at P. 11,191). I t s t i l l remains to be seen how this exception w i l l be interpreted. 255. C.f. the sit u a t i o n i n some areas of the United States where children of a stipulated age are allowed to select t h e i r custodial parent. S ee O'Neil. "Child's Wishes as a Factor i n Awarding Custody" (1965) 4 A.L.R. (3d) 1366, at P. 1399. 256. S.B.C., I960,, c. 4 257. e.g., Stone reports that, "... leading members of the medical profession have expressed the opinion that children aged 6 or 7 years, even i f below normal intelligence,may have decided views about t h e i r custodian, and should be heard." (Stone. "The Welfare of the Chi l d " , Baxter and Eberts (Eds.), "The C h i l d and the Courts" (1978) 229, at P. 242.). Also see B r i t i s h Columbia Royal Commission on Family and Children's Law, Part v i , "Custody, Access and Guardianship" (1975), PP." 13-14. 258. e.g. See the Model Custody Act proposed by the Family • Law Section of the American Bar Association (Fos°t§r and Freed, "Child Custody (Part I I ) " (1964), 39 N.Y.U.L. Rev. 615, at PP. 628-629.). Also see the C a l i f o r n i a C i v i l Code (1954) Section 138 and the references c i t e d i n footnote 239, supra. 259. Supra, footnote 247, at P. 433 124 260. Ibid 261. Idem 262. e.g., see H v H, (1976), 22 N.S.R. (2d) 67 at P. 75. Unfortunately, there i s also a danger that the p o s s i b i l i t y of influence w i l l increase proportionately with an increased acceptance by the court of a child's preference. 263. In K r o l l v . K r o l l . (1976), 5 F.L.D. 92, though, the ef f e c t was one of strong hatred for the non-custodial parent, the p s y c h i a t r i s t involved i n the matter indicated that the intense d i s l i k e of the husband by the mother would be obvious to the c h i l d , and i n subtle ways would "rub o f f " on her. . 264. Supra, footnote 101 265. Ibi d at P. 305 266. S i m i l a r l y see Bradbrook. supra, footnote 225, at PP. 559-560, and More v Primeau. supra, footnote 37, at P. 265. 267. Supra, footnote 237 268. Ibid at P. 308 269. , Idem at P. 307 270. Idem at P. 308 271. In the case of In"the Marriage of Todd (No. 2). supra, footnote 254, Watson J . referred the c h i l d to counselling by a Court counsellor before he would l e t her express her wishes definately to him. Also see Smith v Smith and Morrow, supra, footnote 181 and Sanness v Sanness"^ Cl977), 6 F.L.D. 61. 272. Supra, footnote 235 273. But see Sanness v Sanness. supra, footnote 271, where the court thought i t best not to have the c h i l d represented at the further hearing. 274. e.g. Dominix v Dominix. (1972), 7 N.S.R. (2d) 207; Re Keuhn, supra, footnote 250; Johnston v Johnston, (1975), 20 R.F.L. 211; Grypiuk v Grypiufc, (1970), 2 R.F.L. 280; Robb v Robb, (1978). 2 R.F.L. (2d) 172. 125 275. K r o l l v Kroll.' supra, footnote 263, at P. 95. C f . Archibald v Archibald. (1977), 6 F.L.D. 275 where Provenzano C.C.J, disregarded the wishes of the oldest c h i l d because he f e l t that the same were only expressed to escape the d i s c i p l i n e of the ^ father. He also rejected the preferences of the younger children because t h e i r reasons did not appear to him to be substantial ones. 276. Supra, footnote 25G 277. Ibi d at PP. 765-766 278. C f . Knowles v Knowles. supra, footnote 176, where i t was held that the preference of a c h i l d as to custody should not be considered at the age of 6 years. 279. Sharpe v Sharpe. supra, footnote 244; Re Bennett Infants, supra, footnote 234; H v H (1976"), 71 D.L.R. (3d) 161; K r o l l v K r o l l . supra, footnote 263. 280. Re Milsom. supra, footnote 133; K r o l l v K r o l l , i b i d . C f . Sadowski v Sadowski. (1975), 25 R.F.L. 240 and Martiniuk v Martiniuk and Kowerchuk. (1978), 2 R.F.L. (2d) 39. 281. e.g., i n K r o l l v K r o l l . idem, the wishes of the c h i l d as to access were accorded f u l l e f f e c t even though Aikins J . found (at P. 95) as follows : "There i s nothing i n what was said to me by (the c h i l d ) , or i n any of the other evidence that I have heard, which would support the conclusion that the father i s for any reason of conduct, character, or otherwise, u n f i t as a parent and that he should not have access to his daughter". 282. (1976), 28 R.F.L. 171 283. Ibid at P. 173 284. (1974), 52 D.L.R. (3d) 318 285. In the United States, a Supreme Court has recently held that a lower court erred i n ordering v i s i t a t i o n without ascertaining the children's wishes (Clark v Clark (1978), 4 Fam. L.T* Reporter 2677). 286. Supra, footnote 48, at PP. 406-407. Also see Bersoff. supra, footnote 63, at P. 43 126 287. The case of Currie v Currie. supra, footnote 235, provides an excellent example of the wrestling that a judge i s required to undertake when confronted with the views of a c h i l d . Fortunately, there, McDonald J . was prepared to come to grips with the same. 288. e.'g., as i n Re Milsom. supra, footnote 133. Also see Bradbrook. supra, footnote 225, at P. 560. 289. Supra, footnote 63 290. Ibid at P. 40 et seq. 291. Infra at P. 75 292. I t must also be appreciated that judges very often take comfort i n the f a c t that an order for custody i s subject to variation i n the event of changed circumstances. Indeed, many judgements conclude with remarks to the ef f e c t that i f the unsuccessful parent does t h i s or alt e r s that, then the decision w i i l be reviewed. Mnookin. supra, footnote 10, at P. 282, sees t h i s as an unavoidable consequence of the use of an indeterminate standard such as the best int e r e s t s of a c h i l d for the resolution of a custody dispute. 293. Although there i s s p e c i f i c provision i n the Family Relations Act, 1978 (S.B.C, 1978, c. 22) for the,grant-ing of access (Section 35), t h i s i s not the case under the Divorce Act,.1968.(R.S.C., 1970, D. 8). However, i t i s accepted that the power to award custody necessarily includes the power to award access. 294. e.g., i n Price v Cargin and Carqin (1956), 4 D.L.R. (2d) 652, a f f ' d 8 D.L.R. (2d).2, although the proven lack of bona f i d e parental feelings on the part of the,father played a decisive r o l e i n the matter of granting custody, such was not the case on the question of access. Also see Case v Case, supra, footnote 118, where the mother's homosexuality affected custody but not access. 295. Alder v McLaughlin et a l . (1964), 46 D.L.R. (2d) 12; Podolskv v Podolskv (1975). 26 R.F.L. 321. An extreme example of apprehended dangers to the c h i l d occurred i n Davis v Davis, supra, footnote 222. There, the c h i l d was mentally i l l and required the environment provided by the unemotional father rather than the humane and highly emotional atmosphere that the mother could o f f e r . McPherson J . said t h i s (at P. 262) : "The t e r r i b l e thing that I must do i n denying custody 127 and even access to a wife who i s not g u i l t y of any matrimonial offence i s to me a shattering experience. Access i n this modern day i s denied a parent only i n extreme cases. I doubt i f anyone would suggest that a more, extreme case would be found than t h i s one.- The access i s denied not because of her behaviour but because of the welfare of the c h i l d . In my practice at the bar, which was extensive i n these cases, and i n my period on the bench, I have never before denied access to a mother. I hope and sincerely pray that I never s h a l l again." Also see Section 407 of the Uniform Marriage and Divorce Act, supra, footnote 19, which i s quite blatant i n giving the non-custodial parent a r i g h t to reasonable v i s i t a t i o n unless such " v i s i t a t i o n would endanger seriously the child's physical, mental, moral, or emotional health." 296. Stroud v Stroud (1974) 4 O.R. (2d) 567 at P. 574. However, i n t h i s case the court came down on the side of the best interests of the c h i l d . But see Martiniuk v Martiniuk and Kowerchuk. supra, footnote 280, where the court not only downplayed the concept of the best int e r e s t s of the c h i l d but continued the father's access rights i n the face of strong psychiatric evidence predicting harm to the children. 297. (1971) 1 O.R. 333. Also see Re Wright (1964), 49 D.L.R. (2d) 460; K r o l l v K r o l l . supra, footnote 263; 0 v 0 (1977), 28 R.F.L. 389. 298. Ibi d at P. 338 299. Power Oh Divorce and Other Matrimonial Causes, Third Edition, Volume One, (1976), at PP. 222-223. 300. Goldstein. Freud and So l n i t , supra, footnote 8, at P. 38. 301. Indeed, i n Pierce v Yerkovich (1974), 363 N.Y.S. (2d) 403, the custodial parent c a l l e d Professor S o l n i t himself to give evidence on an application for access.' His evidence was i n terms of the thesis i n his book, yet the court refused to accept his recommendation, saying (at P. 421) . -"... the court t o t a l l y r e j e c t s the specious notion so ingenuously urged by Professor S o l n i t and his co-authors that the custodial parent should have the sole r i g h t to determine i n the name of the 128 best interests of the c h i l d whether the non-custodial parent should be permitted or denied association with his own c h i l d . ' Experience and common-sense teach that, given the imperfections of human nature from which flow the bitterness and resentment which a l l too often accompany a marital or i l l i c i t love a f f a i r breakup, no one parent can, under such circumstances, be safely entrusted with a power so susceptible of abuse. The authors' solution to the f r i c t i o n s engendered by the s e l f i s h desires of separated parents envisions an unattainable i d e a l wherein the custodial parent always acts from the purest, noblest and l o f t i e s t motives- and never from s e l f i s h , base or crass ones. U n t i l such time as that i d e a l i s more nearly approached than experience shows i s presently the case, t h i s court w i l l r e t a i n i t s prerogative of making decisions, however d i f f i c u l t and freighted with p o t e n t i a l for good or i l l i n cases involving the l i v e s and welfare of i t s wards." Also see 0 v 0 , supra, footnote 297, and Whitehouse v Whitehouse (1970) 1 R.F.L. 294, but note Reynolds v Toi (1975), 21 R.F.L. 171. Rosen, supra, footnote 190, at PP. 117-118, has also taken the authors to task on the basis of t h e i r theory and argued that j o i n t custody i s the most appropriate solution. 302. Re Sharp. Sharp v Sharp (1962), 36 D.L.R. (2d) 328; Re M. and M. (1975), 55 D.L.R. (3d) 384; Re Milsom, supra, footnote 133. But c f . Martiniuk v Martiniuk and Kowerchuk. supra, footnote 280. 303. Supra, footnote 296 304. Ibid at P. 574 305. Also see Re Wright, supra, footnote 297, but note Ader v McLaughlin et a l . . supra, footnote 295 and Martiniuk v Martiniuk and Kowerchuk. supra, footnote 280. 306. Supra, footnote 263. 307. C s i c s i r i v C s i c s i r i (1974), 17 R.F.L. 31; Gubody v Gubody (1955) O.W.N. 548; M v M (1973) 2 A l l E.R. 81; Ader v McLaughlin et a l . . supra, footnote 295. 308. Sutherland v Sutherland and Watt (1970), 3 R.F.L. 118; Podowski v Podowski~Tl970). 2 R.F.L. 297. 129 309. (1975), 4 F.L.D. 83 310. Also Re Logan (1977), 18 N.B.R. (2d) 58; Re Alderman (1961), 32 D.L.R. (2d) 71: Robinson v Robinson and Oliver (1968), 62 W.W.R. 763. 311. (1978),. 29 R.F.L. 369 312. Also see Parkinson v Parkinson (1973) 3 O.R. 293 313. C s i c s i r i v C s i c s i r i . supra, footnote 307, and Sadowski v Sadowski. supra, footnote 280.' 314. The Ontario Supreme Court has even ordered that during periods of supervision, the custody of the children be in the person exercising such supervision. 0 v 0, supra, footnote 297. ~" 315. Supra," footnote 307, at PP. 550,552. Also see Evershed v Evershed (1882), 46 L.T. 690. 316. ' In Farden v Farden (1972), 8 R.F.L. 183, the father had been undermining the authority of the mother and influencing the children against her. to contend with t h i s the court upheld a judgement severely l i m i t i n g the extensive r i g h t of access that the father had been enjoying. Also see Re Stroud and Stroud, supra, footnote 296, and Re Milsom. supra, footnote 133. But note Shapiro v Shapiro, supra, footnote 250. 317. Martiniuk v Martiniuk and Kowerchuk, supra, footnote 280. 318. Re Stroud and Stroud, supra, footnote 296; Re Mi Isom. supra, footnote 133; M v M, supra, footnote 307; Reynolds v T o i , supra, footnote 301. 319. Supra P. 90 320. I t has been held that breach of neither an access order (R v Rupert (1974). 16 R.F.L. 325), nor a custody order (£ v Andrews (1977) 4 R.F.L. (2d) 224) i s punishable under the Canadian Criminal Code (R.S., 1970, c. 34). 321. R y Rupert, i b i d ; Re Saxon (1975), 20 R.F.L. 340. 322. Re Maestrello and Maestrello (1975), 57 D.L.R. (3d) 663. 323. Supra, footnote 280 324. Ibid at P. 46 130 325. (1977), 28 R.F.L. 1 326. See also Pair v Pair (1973), 8 R.F.L. 330, where the court refused to include an order for payment of arrears of maintenance in the decree n i s i because the wife had taken no prior steps to enforce the previous order and had denied access to the husband. 327. (1974), 40 D.L.R. (3d) 321 328. R.S.C., 1970, P. 8 329. Supra, footnote 206, at P. 4 330. Supra, footnote,282 331. Ibid at PP. 172-173 332. Supra, footnote 8 333. This type of order i s very common in England. See Re W (1964) Ch. 202: Hewer v Bryant (1970) 1 Q.B. 357; Bromley "Family Law". 5th Ed. (1976), at P. 305. Canadian Courts have also made such orders at times. See Huber v Huber. (1975), 18 R.F.L. 378; Farkash v Farkash (1972) 1 W.W.R. 429; McRae v McRae (1974). 15 R.F.L. 220: M i l l e r v M i l l e r (1974). 17 R.F.L. 92 334. For a similar order made by an English Court see Juna v Juna (1972) 2 A l l E.R. 600. 335. Rosen, supra, footnote 190 336. See Caoodici v Capodici (1967), 12 F.L.R. 129, at P. 136 337. Huber v Huber, supra, footnote 333 338. Indeed, i f the theories of Goldstein. Freud and S o l n i t . supra, footnote 8, are accepted there can be no room for these orders at a l l . According to the authors (at P. 38), one person must be awarded custody and he or she must then have sole authority to decide under what . conditions the c h i l d w i l l be raised. 339. Rosen, supra, footnote 190; O'Neil and Leonoff. "Joint Custody : An Option Worth Examining," (1977) Perception 28. 340. Rosen, i b i d 131 341. McCahill v Robertson (1974), 17 R.F.L. 23 at PP. 23-24 342. However, i t i s i n t e r e s t i n g to note that Rosen, supra, footnote 190, suggests that one follows from the other; i . e . , i f the parents can co-operate i n these circumstances then children f i n d i t easy to adapt to a varie t y of arrangements. 343. F v F and C (1966). 56 W.W.R. 368: McCahill v Robertson, supra, footnote 341; Mnookin. supra, footnote 10, at P. 233 footnote 26. Also see Dodd v Dodd. (1978), 4 Fam. L. Reporter 2302, at P. 2304, for an i l l u s t r a t i v e discussion concerning t h i s type of order. 344. H i l l v H i l l , supra, footnote 99 CHAPTER 4 IMPROVING THE DETERMINATION OF 132 THE BEST INTERESTS OF THE CHILD (1) INCREASING THE INPUT FROM THE CHILD INTO THE DECISION-MAKING PROCESS From the preceding discussion of how courts t r e a t the p r i n c i p l e of the best interests of the ch i l d , i t can be seen that judges generally tend to s k i r t the issue and attempt to decide c h i l d placement without coming to grips with the c h i l d himself. I again stress that t h i s i s inexcuseable i n l i g h t of the circumstance that the entire exercise concerns the c h i l d and how best to secure his or her future development. I t i s v i t a l l y important, both to the c h i l d and to society i n general, that the decision i s made which affords the c h i l d the best opportunity to become a responsible member of the community. To be as certain as possible of achieving t h i s r e s u l t I suggest that there i s a need for two fundamental changes. F i r s t l y , the input by the c h i l d needs to be increased, and secondly, the courts need to be receptive to such input. The l a t t e r a l t e r a t i o n i s an important one because a l l to often courts do receive input from a c h i l d i n various forms, but the same i s not accorded the weight i t deserves. 1 This i s not to say that the court should necessarily abdicate i t s function as the f i n a l a r b i t e r ; i t i s simply intended that courts become more c h i l d -orientated. This i n turn w i l l provide the court with the 133 necessary balance and the proper foundation on which to reach a decision which does i n fact promote the best in t e r e s t s of the ch i l d . Courts i n various j u r i s d i c t i o n s have attempted a piece-meal approach to t h i s change of emphasis. In other words, one judge might simply interview the children, another judge might only order the children to be independently represented, and yet another might just c a l l for a report from a s o c i a l welfare worker. With the greatest respect, such an approach i s e n t i r e l y inadequate. What i s required i s for the court to use every available method at i t s disposal i n order to understand the c h i l d and his or her environment. o Yet, as I have indicated previously, i t i s c l e a r l y d i f f i c u l t for a judge steeped i n the tr a d i t i o n s of the adversary system to come to terms with t h i s emphasis on the ch i l d . Such judges treat disputes regarding custody as no di f f e r e n t from any ordinary c i v i l s u i t ; the parents are the l i t i g a n t s with the c h i l d as the priz e . The right s of the c h i l d are i d e n t i f i e d with the rights of the parents, and i n t h i s fashion courts are able to talk i n the same breath of the best in t e r e s t s of the c h i l d and the rights of the parents. The law has proceeded on the assumption that parents can adequately represent the interests of the children. This may be true i n a stable and secure family environment, but i t has inherent 134 d i f f i c u l t i e s when that family environment disintegrates. I t i s then that the differences between children and t h e i r parents 3 become so prominent.1 As Goldstein, Freud and S o l n i t comment : "Children are hot adults i n miniature. They are beings per se, d i f f e r e n t from t h e i r elders i n t h e i r mental nature, th e i r functioning, th e i r understanding of events, and t h e i r reactions to them." There can be obvious c o n f l i c t s of i n t e r e s t . The adversary system has been u n i v e r s a l l y blamed for the emphasis being placed on the parents rather than on the children. Apart from perpetuating the winner-loser syndrome i t allows for the c h i l d to be haggled over. One parent might use custody or access to gain an advantage i n respect of maintenance or property settlement. Indeed, the traumatic experience of a custody t r i a l may only eventuate because a parent who i s not r e a l l y interested i n custody i s using-the same as a lever against the other party. Yet, i s must be remembered that i t i s not only the courts that are to blame. Lawyers, too, r e v e l i n the adversary system because that i s the system i n which they are trained. The public can be singled out as well. There i s a pre-conceived notion of what should happen i n a court-room, and not only the public, but the parties themselves, expect a forum where t h e i r dispute can be resolved i n t r a d i t i o n a l fashion." But the r e a l c u l p r i t i s the l e g i s l a t u r e i n allowing 135 family matters to be handled i n t h i s fashion. Only i n recent times has i t been r e a l i z e d that such matters require s p e c i a l i s t courts staffed by judges who "by reason of t r a i n i n g , experience and personality", are suitable persons "to deal with matters of family law".'4 The push i n Canada over the l a s t few years has been to set up U n i f i e d Family Courts i n the Provinces with the assistance of the Federal Government. Unfortunately though, the c o n s t i t u t i o n a l d i v i s i o n of powers has proven d i f f i c u l t to overcome i n making these courts t r u l y u n i f i e d . More s i g n i f i c a n t l y , even with the introduction of these specialized courts the adversary system has continued to be i n vogue, and again I suggest that the same i s here to stay, at • least for the immediate future. In A u s t r a l i a there were grand visions of leaving the adversary system behind with the commencement of the new Family Court i n early 1976. Judges went to great lengths to impress upon counsel and the parties that the proceedings were not adversary by nature. 1 Indeed i t was forbidden to r e f e r to an action as "Smith versus Smith", the proper t i t l e ; , being "Smith and Smith". Yet, a l l these e f f o r t s were to no a v a i l , because once the courts commenced hearing defended custody matters i n late 1976, the old habits returned and the adversary process came to the fore once again. Fortunately though, the court now had at i t s disposal a l l the devices considered necessary to place the child's views, thoughts and feelings i n focus. These included the use of 136 support s t a f f comprising Court counsellors and welfare o f f i c e r s and a simple straight-forward power to order that a c h i l d be separately represented. Thus the adversary process took on a d i f f e r e n t slant and the court was perhaps able to enjoy the best of both worlds. Whether the adversary process i s the c u l p r i t or not, the f i r s t p r i o r i t y i s to increase the input of the c h i l d into the decision-making process. I suggest that this can be achieved within the existing scheme of things by a combination 5 of methods and procedures. The most important of these i s the separate representation of the c h i l d , not only during the actual hearing but as soon as practicable after the disintegration of the family unit. Next there i s the presentation of evidence from the behavioural sciences concern-ing the p a r t i c u l a r psychological and s o c i a l influences at play. Such evidence can take the form of reports submitted by p s y c h i a t r i s t s , psychologists and s o c i a l welfare workers, as well as d i r e c t evidence from the same at the hearing. Nor should i t be a case of the c h i l d being seen and not heard. The question of an interview by the judge should be canvassed as well as the prospect of the c h i l d . f i l i n g a f f i d a v i t s and giving o r a l evidence/ F i n a l l y , emphasis should also be placed on conferences at which the c h i l d i s represented, both p r i o r to the i n s t i t u t i o n of proceedings and p r i o r to the actual hearing. In other words a t r i a l over custody must be seen as a l a s t 137 resort to resolve the dispute. Although these methods are not new, t h e i r use i n the past has.generally been haphazard and sporadic. Courts have even taken the attitude of preferring one method over another.' However, each method must be viewed i n the context of i t s p a r t i c u l a r purpose or value. I t may be true to say that evidence from a behavioural s c i e n t i s t i s a better method of informing the court of the thoughts and feelings of a c h i l d than d i r e c t evidence by the c h i l d or an interview by the judge, but only i n so far as i t provides the court with an i n s i g h t into the psychology of the c h i l d . I t i s not necessarily the better method for guaging the child's character and personality. This purpose i s i d e a l l y served by the judge having d i r e c t contact with the child.' I suggest that the methods should each be viewed as a l i n k i n a chain leading from the c h i l d to the judge with each l i n k supporting the other. Only i n th i s fashion can the judge be placed i n the best position to promote the welfare of the children. However, I again point out that even i f the input of the c h i l d i s increased by the use of these methods the court must s t i l l be receptive to such input. The onus i s on the judge here and he must be careful not to lapse into allowing the inter e s t s of the parents to dominate. 138 (a) IS CHILD INPUT FEASIBLE? Before canvassing the methods of providing input from the c h i l d into the decision-making process, i t i s necessary to b r i e f l y consider the question of whether children are capable of providing input i n the f i r s t place. I say b r i e f l y because th i s i s not as c r i t i c a l an issue as i t may seem at f i r s t blush. I t must be borne in mind that involvement by the c h i l d i s not necessarily d i r e c t involvement, and, indeed, as we s h a l l see, di r e c t p a r t i c i p a t i o n i n the proceedings i s to be discouraged because of the possible harmful effects on emotional develop-ment. Rather, the input w i l l be of an i n d i r e c t nature. I t w i l l be presented to the court by the child's counsel in the form of evidence from t h i r d parties, including behavioural s c i e n t i s t s , and in the form of submissions from such counsel. Admittedly, the judge w i l l need to assess t h i s input for himself, but hopefully he w i l l r e l y to a large extent on independent counsel and the behavioural s c i e n t i s t s in t h i s regard. I t w i l l only be where the c h i l d gives evidence i n the proceedings, or where the judge conducts an interview, that he w i l l be s p e c i f i c a l l y concerned with the question of the child's capacity. Even here though, he can receive valuable assistance from the ch i l d advocate and the s o c i a l s c i e n t i s t s . I t must also be remembered that the input does not sol e l y comprise the expressed views of the c h i l d . Otherwise, 139 to say that the input i s provided through an intermediary would count for nothing; i t would merely be pushing the question of the capacity of the c h i l d one step away from the judge and l e t t i n g the intermediary grapple with the same. In addition to the wishes, thoughts, feelings and preferences of the c h i l d , a s i g n i f i c a n t part of any input w i l l be evidence of the child's circumstances, his physical and psychological environment, and the r e s u l t s of indepth assessments of the c h i l d . The capacity of the c h i l d cannot be said to be a necessary ingredient of input of this nature. However, the question of the capacity of the c h i l d i s not eliminated altogether. I t s p e c i f i c a l l y raises i t s head when the c h i l d expresses wishes of i t s own, when deciding how best to represent the c h i l d , and i n general, when determining how the c h i l d should be treated and approached. The question i s one that must be directed to the behavioural s c i e n t i s t s , both for the purpose of obtaining general assumptions about capacity, and for the purpose of dealing with the p a r t i c u l a r c h i l d involved. However, the unfortunate truth i s that there i s very l i t t l e relevant empirical data a v a i l a b l e . " The s o c i a l sciences have been unable to provide acceptable c r i t e r i a by which to determine the a b i l i t y . o f a c h i l d to make a conscious choice in a custody dispute. Admittedly, there are reams of l i t e r a t u r e dealing 140 with developmental c h i l d psychology, but there i s a dearth of research which focuses on l e g a l l y relevant variables.' The a b i l i t y to communicate, the a b i l i t y to understand others, the a b i l i t y to plan, cognitive a b i l i t y , and r e l i a b i l i t y , have a l l been i d e n t i f i e d as behavioural attributes relevant to 9 a c h i l d i n s t r u c t i n g counsel, and, I suggest relevant generally to any reasoned choice that a c h i l d must make i n a custody dispute. Yet, as.Leon s a y s , 1 0 "(t)here are.... few examinations of these attributes that render them of value i n formulating s p e c i f i c l e g a l p o l i c y . Even i f one looks to the general psychological research and theory regarding children, an ambivalent attitude i s apparent. On the one hand, recent studies indicate that a young c h i l d i s a sensitive i n d i v i d u a l with an active mental 1 2 l i f e . Yet, on the other hand, psychology has continued to play a major r o l e in promoting the s o c i e t a l view of children as-; 13 incompetent and t o t a l l y dependent on adults. Naturally, this dichotomy leaves anyone attempting to f i n d clear-cut p r i n c i p l e s i n a predicament. However, i n a sense, l e g a l commentators searching the available s c i e n t i f i c data for some guidance have contributed to thei r own disappointment. The assumption i s generally made that the age of the c h i l d i s the centrepoint, and commentators 141 expect to f i n d evidence distinguishing a child's a b i l i t y to choose according to i t s age. The flaw i s that age i s an unreliable i n d i c i a of a child's c a p a c i t y , 1 4 and'social s c i e n t i s t s have understandably shied clear of talking i n terms of s p e c i f i c ages. Of course, there have been c l i n i c a l studies 15 of children of d i f f e r e n t ages, but one wonders at the v a l i d i t y of the r e s u l t s given the i m p o s s i b i l i t y of having a large enough control group to allow for the v a r i a t i o n i n development of children of the same age. In any event, i t has not been possible for these c l i n i c a l studies to produce findings concern-17 ing children of one p a r t i c u l a r age. At the most, the findings r e l a t e to age groups, such as up to 7 years, between 7 and 13 years, and 13 years and above. Accordingly, at best, the re s u l t s are suggestive of patterns of behaviour. The trend of recent studies has been to concentrate on the general reaction of children to the disruption of the 18 family unit. There has been very l i t t l e research dealing with the responses of children to being asked to choose between 19 parents. However, i n one such study by Levy, an American c h i l d p s y c h i a t r i s t , he found that children exhibited three d i f f e r i n g responses to that question: unwillingness and i n a b i l i t y to choose, ambivalence and anxiety i n t h e i r commitment to their choice, and emphatic preference. He found these responses amongst children with an age spread of 5 to 13 years, but again there can be no relevance to the question of 142 the capacity of a p a r t i c u l a r c h i l d outside the group studied. Given t h i s background, the answer to the question whether i t i s feas i b l e to expect input from a c h i l d , can only be that i t depends on the behavioural attributes of the p a r t i c u l a r child.' There must be an i n d i v i d u a l assessment of each c h i l d involved i n a custody dispute, and i t i s impossible 20 to r e l y on general assumptions. Indeed, there i s something abhorrent i n dealing with children on the basis of a presumption about t h e i r capacity. I t takes away the child's i n d i v i d u a l i t y to treat him as though he i s only capable of 21 doing what most children of his age group can do. However, as we have seen, Leon has suggested . certain rebuttable presumptions concerning a child's capacity to i n s t r u c t counsel. 1 He divides children into three age groups; up to 5 or 6 years of age, between 7 and 13 years of age, and over 13 years of age. With the f i r s t group the presumption i s that the child's capacity i s suspect. As regards the second group, the presumption i s that the c h i l d "has developed a s u f f i c i e n t degree of capacity to j u s t i f y taking his preferences in t o consideration i n the decision-making process."24 With children i n the f i n a l group, there i s a presumption that they have "a s u f f i c i e n t degree of capacity to i n s t r u c t l e g a l counsel."25 143 Leon b u i l t these presumptions out of the available behavioural science knowledge, but he f r e e l y admits that the same i s sparse, and that there i s a need for more empirical 26 research. He even concedes that "the selection of a s p e c i f i c age as a cut-off point i s an arbi t r a r y process." I t i s s i g n i f i c a n t , I suggest, that the proposal i s merely put 27 forward as a tentative one, and that a great deal of emphasis i s l a i d on the fac t that the presumptions are rebuttable. Indeed, i t seems to me that because of the i r shaky foundations the presumptions w i l l be of l i t t l e use, and the concentration w i l l s t i l l be on the i n d i v i d u a l behavioural attitudes of the p a r t i c u l a r c h i l d involved. In addition to these attempts to use general assumptions, a disturbing tendency i n assessing the capacity of a c h i l d i s to look to the cognitive a b i l i t y and moral judgement of adults as the yard-stick. Apart from the fac t that t h i s perpetuates the adult orientation of the resolution of custody disputes, the c r i t i c i s m that can be made of t h i s approach i s that i t assumes a mature stage of i n t e l l e c t u a l and moral development i n 29 adults which i s not always present i n r e a l i t y . In any event, who i s to say that the opinion of an adult should be accorded more weight than that of a c h i l d . There i s c e r t a i n l y no 30 i r r e f u t a b l e evidence i n d i c a t i n g t h i s , and i t i s no more than 31 a s o c i e t a l presumption of how things ought to be. This 144 exemplifies again the dangers of r e l y i n g on broad generalisations concerning the capacity of a c h i l d . Another important factor to bear i n mind when assessing the a b i l i t y of a c h i l d to provide input into the decision-making process,' i s that the same w i l l vary according to how the ch i l d i s treated. For example, no matter how sophisticated a pa r t i c u l a r child's mental processes may be, i f he i s not made aware of the context i n which his preferences w i l l be looked at, and i f he i s kept i n the dark about what i s happening generally, he w i l l not be i n a position to make any useful contribution. Now, I suggest that the most appropriate person to ensure that the c h i l d i s i n fact i n such a position i s independent le g a l counsel. With the assistance of behavioural s c i e n t i s t s he can provide the most conducive environment possible for the capacity of the c h i l d to be u t i l i s e d to i t s f u l l e s t extent. Capacity i n the context of this discussion i s a two-way concept. Most children may have the a b i l i t y to adequately express t h e i r wishes, views, thoughts and preferences, but that a b i l i t y may need to be tapped. For instance, the a b i l i t y to communicate has been mentioned as a 32 relevant behavioural attitude,' yet the child's communication f a c i l i t y may be, i n part, a function of the lawyer's experience and s k i l l i n communicating with children. Again, the bottom l i n e of th i s discussion i s that each 145 c h i l d i s d i f f e r e n t , and the question of whether i t i s f e a s i b l e to look for input from the c h i l d i s one that cannot accurately be answered by reference to general presumptions; each c h i l d must be i n d i v i d u a l l y assessed i n t h i s regard. I t i s generally f e l t that c h i l d development i s a product of the i n t e r a c t i o n between i n t e r n a l b i o l o g i c a l l y ordained 33 change and the environment. However, at the very least, a c h i l d i s p o t e n t i a l l y capable of p a r t i c i p a t i n g i n i t s own development, and i t i s the rationale of this paper that the opportunity to f u l f i l t h i s p o t e n t i a l should be given. I suggest that the circumstance which i s preventing t h i s i s not anything inherent i n a child's make-up, but i s rather the f a c t that contemporary society has a p a r t i c u l a r conception of childhood 34 which determines p o l i c i e s and decisions concerning children. That conception i s one of incompetence. In the words of 35 Mnookin : "Laws that at once saddle children with sp e c i a l burdens and d i s a b i l i t i e s and pamper them with special protections are t y p i c a l l y j u s t i f i e d by and premised upon the child's assumed defici e n c i e s - i n t e l l e c t u a l , physical and moral." Thus, what i s needed i s for society's conception to be - Tfi brought i n l i n e with r e a l i t y . ' The concentration must be on relevant developmental research, the lack of which many 37 commentators believe i s the cause of t h i s discrepancy. Most research has had l i t t l e to say about children and t h e i r d a i l y 146 l i v e s , and thus f a i l s as a guide both to understanding them and to formulating p o l i c i e s to deal with them. The f a c t i s that children are not as incompetent as developmental theories would have us believe. Those so c i o l o g i s t s who have concentrated on the child's actual behaviour i n other than an experimental setting i n v a r i a b l y conclude that the same i s both i n t e l l e c t u a l l y and s o c i a l l y TO on complex. For instance, Denzin found as follows : "Children's work involves such serious matters as developing languages for communication; presenting and defending t h e i r s o c i a l selves i n d i f f i c u l t s i t uations; defining and processing deviance; and constructing rules of entry and e x i t into emergent s o c i a l groups. Children see these as serious concerns and often make a clear d i s t i n c t i o n between t h e i r play and t h e i r work. This fa c t i s best grasped by entering those situations where children are n a t u r a l l y thrown together and forced to take account of one another." However, i t i s obvious that not a l l children possess this competence, and the perennial question of when does the t r a n s i t i o n take place, again becomes important. Although I have c r i t i c i s e d the use of presumptions involving the age of a c h i l d i n determining i t s capacity, i t cannot be denied that a broad d i s t i n c t i o n can be made between very young children and others as far as psychological functioning i s concerned. In the former group the process i s primitive, direct, impulsive, and noncognitive, while i n the l a t t e r i t i s more controlled, thoughtful, and l o g i c a l . 4 0 Skolnick reports, the general 147 consensus as being that the t r a n s i t i o n from one type of functioning to the other takes place between the ages of 5 to 7 y e a r s . 4 1 At that time the step from childhood to the higher l e v e l i s made. Of course though, i t i s not a case of the c h i l d being incompetent one day and t o t a l l y competent the next. This age merely marks the beginning of the attainment of the higher l e v e l of competence. This accounts for findings by s o c i o l o g i s t s 49 that certain a b i l i t i e s such as communication, understanding others, i n t e l l e c t u a l capacity and the a b i l i t y to plan, develop 43 44 gradually with increasing age. As Skolnick says : "Before the age of 5 to 7 y e a r s m a t u r a t i o n plays' a major r o l e i n developmental change; afterwards, learning and culture become major forces influencing psychological development." However, i t can s t i l l be seen that, even given the a v a i l a b i l i t y of this one general presumption, i t w i l l be necessary to look to an i n d i v i d u a l assessment of the p a r t i c u l a r c h i l d i n order to determine capacity. The presumption can be no more than a working guide. 148 (b) THE METHODS OF ACHIEVING INPUT FROM CHILDREN ( i ) INDIRECT METHODS INDEPENDENT REPRESENTATION OF CHILDREN Separate representation of children has been with us for some time now but i t i s s t i l l an evolving concept with some degree of scepticism apparent regarding i t s worth. Yet, i f i t i s accepted that children should play an increased r o l e i n proceedings concerning their future placement, even to the extent of being treated as parties i n the f u l l e s t sense of the word, i t seems to me fundamental;, that they be separately , , 45 represented. Admittedly, adult parties often choose not to be represented, not only i n Family Law matters but i n respect of any matter that comes before a court. Children though, do not 46 have that freedom of choice. An examination of three common types of issues involving children w i l l i l l u s t r a t e the need for separate representation. The f i r s t category of cases i s that i n which there are allegations of mal-treatment of a c h i l d by one parent or the other, and here i t i s hard to see how the interests of the ch i l d can be served without bias by either party - that i s , 149 there i s on the one hand a c o n f l i c t of interests between the c h i l d and the party alleged to have injured the c h i l d ( i f such i n j u r y i s denied) and on the other hand a desire to use the chi l d to prove the mal-treatment of which the other party, and not necessarily the ch i l d , complains. The child's reaction to the alleged treatment and his attitude towards his parents are not properly heard except through the child's 47 leg a l representative being able to advance these matters. Then there i s a category of cases i n which allegations are made that a c h i l d i s uncontrollable while i n the custody of one parent, but manageable, or said to be so, while i n the custody of the other. In cases of this kind there must obviously be a c o n f l i c t of i n t e r e s t between the parent making the assertion and the c h i l d about whom i t i s made. The force of the evidence i s directed towards a denigration of the c h i l d i n circumstances where the c h i l d has no opportunity to defend himself from the attacks being made upon his personality. The t h i r d category of cases i s where the thrust of the evidence i s directed towards proving that not only i s one parent u n f i t to have custody, but i s u n f i t to have any contact with the c h i l d at a l l . In cases of t h i s kind, i t i s important to have the c h i l d separately represented, so that the court has some independent evidence of the impact of parental behaviour upon the c h i l d to a s s i s t i n determining whether or 150 not continued contact with one parent i s i n the child's best i n t e r e s t s . I t i s the r i g h t of a c h i l d that he or she have and enjoy a relationship with his parents as near as possible to that enjoyed by a c h i l d i n a u n i f i e d family. Access and periodic v i s i t i n g to preserve and develop this relationship i s important to the c h i l d and should not be denied him or her unless i t i s contrary to his or her sustained wishes and those wishes are reasonably based. Too often, in this class of case, the parent seeking to deny access i s more concerned with vindicating his feelings towards the other parent than with an unbiased appraisal of what the interests of the c h i l d require. The court i s better able to discharge i t s duty to the c h i l d i f i t has the assistance of counsel for the c h i l d . The point i s that i n a custody dispute the interests of the children r a r e l y coincide with the interests of both parents. Thus, unless there i s an independent medium through whom the interests of the children can be conveyed to the court, there i s a very r e a l r i s k of them not being brought to the court's attention at a l l . (1) THE CHOICE OF THE INDEPENDENT REPRESENTATIVE Given the need for separate representation of children the f i r s t question i s who should provide the same. I t i s generally assumed that t h i s person should be a lawyer, yet i t 151 i s not unreasonable to suggest that the advocate be drawn from the behavioural sciences or even from some other walk of l i f e . The aim of the exercise i s to safeguard the interests of the c h i l d and place his or her wishes before the court i n an unbiased fashion. As we have seen, there are a myriad of psychological influences at play when a family unit dissolves, and who better to unravel those influences and apprise the court of how best to ensure that the future development of the c h i l d i s not prejudiced, than a prac t i t i o n e r of the behavioural sciences. On the other hand, i t i s important that the advocate have the confidence and t r u s t of the c h i l d , and that the c h i l d feels comfortable with the advocate. Accordingly, i t may be appropriate to e n l i s t the services of a close r e l a t i v e or frie n d of the family to place the views of the c h i l d before the court. However, on the assumption that c h i l d placement w i l l continue to operate within the adversary system, I suggest that the l e g a l l y q u a l i f i e d advocate i s the i d e a l person to represent the c h i l d . Only he can use the system to work for the c h i l d , whereas both the behavioural s c i e n t i s t and the lay person w i l l f i n d themselves at a d i s t i n c t disadvantage i n t h i s regard. Yet, t h i s i s not to say that legal counsel w i l l have a l l the answers. The majority of lawyers have l i t t l e or no knowledge of c h i l d psychology and, of course, there w i l l be no pre-152 existing rapport between counsel and the c h i l d . The key though, i s that a lawyer i s able to marshall the services of the behavioural s c i e n t i s t and the close r e l a t i v e or f r i e n d , i f necessary, to provide him with the proper basis on which to 4 8 represent the ch i l d . (2) THE APPOINTMENT OF INDEPENDENT COUNSEL In B r i t i s h Columbia, and for that matter i n a l l common law j u r i s d i c t i o n s , the concept that a c h i l d needs representation i n court proceedings i s not peculiar to custody disputes. H i s t o r i c a l l y , children have been regarded as labouring under a leg a l d i s a b i l i t y and requiring benevolent protection i n law. Thus, i n l i t i g a t i o n a c h i l d can only act through an adult person who makes decisions on the child's behalf. This person i s known as the child's guardian ad litem (or next friend) and can be the child's parent, a r e l a t i v e , or even a friend. In B r i t i s h Columbia, the O f f i c i a l Guardian may also acquire t h i s r o l e . 4 ^ Once appointed, the guardian, ad litem instructs l e g a l counsel i n the p a r t i c u l a r matter at hand. Thus, i t i s somewhat d i f f e r e n t from d i r e c t representation i n court, yet i t i l l u s t r a t e s the point that where a c h i l d i s v i t a l l y concerned i n l e g a l proceedings, he or she must have representation. 153 The situation more akin to the independent representation required in custody disputes i s that pertaining i n criminal cases. Here children have counsel acting d i r e c t l y on their behalf, yet even here there i s s t i l l an important difference i n that such counsel are retained and 50 instructed by the children themselves. I t i s rare for independent counsel to be retained d i r e c t l y by a c h i l d i n a custody dispute. In most j u r i s d i c t i o n s i n Canada there i s l i t t l e l e g i s l a t i v e authority for the court to appoint independent le g a l counsel to represent children. I t has generally been a case of the court having to mould existing procedures to cater for the demand for children to have a separate voice. For example, i n Ontario and Saskatchewan the courts looked to the established concept of the guardian, ad litem and c a l l e d upon the O f f i c i a l Guardian to assume the r o l e of the child's representative i n a custody dispute. Not only was t h i s foreign i n nature to the ordinary purpose of the guardian, ad litem, but custody matters were not within the province of the O f f i c i a l Guardian, he being t r a d i t i o n a l l y the protector of 51 children's property i n t e r e s t s . Indeed, t h i s argument was taken up by the O f f i c i a l Guardian i n the Saskatchewan case of 52 McKercher v McKercher together with the additional points that there was no allowance i n the Guardian's budget for providing this type of service and the necessary f a c i l i t i e s were 154 lacking. Yet, Bayda J . held that he had j u r i s d i c t i o n to order the O f f i c i a l Guardian to act. He f e l t that the o f f i c e of the O f f i c i a l Guardian was part of a l e g i s l a t i v e scheme to enhance the welfare of children generally,' and his duties and functions could not be limited to s p e c i f i c l e g a l problems 53 involving infants. In Ontario, the cases of Re Reid and Reid 54 and Re Dadswell paved the way for the use of the O f f i c i a l Guardian as independent legal counsel for children i n that 55 Province. Of course, there i s always the j u r i s d i c t i o n of a court of equity representing the sovereign as parens patriae to protect the rights of any person under a l e g a l d i s a b i l i t y . I t i s quite clear that courts having t h i s j u r i s d i c t i o n can 56 appoint counsel to act for children. Yet, i t i s important to r e a l i z e that such counsel are appointed as amicus curiae and ostensibly are intended to a s s i s t the court. Their powers are determined s o l e l y by the court appointing them, and the incidents of independent representation are non-existent unless s p e c i f i c a l l y provided for. In other words, the amicus depends on the court for his r i g h t to c a l l witnesses, to crossexamine, . , ' , 57 and even to appeal. In Alberta, i t has been the practice to appoint counsel to a s s i s t the court and the c h i l d i n t h i s capacity of an CO amicus, curiae. This practice commenced in 1966 i n the 155 59 unreported decision of Woods v Woods. There, Manning J . appointed l e g a l counsel to represent the children i n the custody dispute before him. He directed that such counsel should have power to make an independent investigation of the circumstances and to appeal at the t r i a l on behalf of the children with the r i g h t to examine and crossexamine witnesses and to c a l l . . 60 evidence. However, the f u l l extent of the inherent equitable j u r i s d i c t i o n i n this regard i s unclear. Canadian courts may very well follow the lead of their American counterparts where some extraordinary developments have occurred. For instance i n the Ohio case of Barth v Barth the t r i a l judge made the children of the divorcing parents defendant parties to the action and appointed a guardian ad litem to appear on the i r behalf. No authority was ci t e d for making the children parties to the s u i t , but i t can be assumed that i t was done under the inherent power of the court. The appointment of the guardian ad litem was made pursuant to an Ohio statute requiring appointments for infant defendants i n suits against them. An equally extraordinary s i t u a t i o n occurred i n a recent 6 2 case before the New York Supreme Court. The children who were the subject of a custody dispute retained an attorney to represent their i nterests before the court. The court then proceeded to treat the children as r e a l parties for a l l 156 p r a c t i c a l purposes. They remained i n the courtroom throughout the t r i a l except when they elected not to attend. Their counsel was also permitted to c a l l witnesses and to crossexamine other witnesses. The court displayed no doubt as to t h e i r a b i l i t y to permit t h i s course of action and again i t must be assumed that the inherent equitable power was being exercised. Law Reform Commissions across Canada have decried both the lack of l e g i s l a t i v e authority for separate representation of children i n custody disputes, and the sporadic use of such representation when the same i s available. For example, the Law Reform Commission of Ontario i n i t s Report on Family Law said t h i s ^ : " I t seems to us inconsistent, therefore, that so f a r i n the development of the law i n t h i s Province the r i g h t of a c h i l d to the protection of his own counsel i n proceedings r e l a t i n g to his upbringing has not been established i n any more than i s o l a t e d instances. We believe that decisions concerning a child's physical and emotional welfare are as worthy of the state's special i n t e r e s t as those concerning his property r i g h t s , and that courts may be i n the most informed position only when there has been an objective evaluation of a child's best i n t e r e s t by a person with l e g a l q u a l i f i c a t i o n s who may present the child's case to a cou r t " . " 4 Prince Edward Island i s a j u r i s d i c t i o n where there i s i n fact l e g i s l a t i v e authority for a c h i l d to receive separate l e g a l assistance, but the c r i t i c i s m s of the Ontario Law Reform Commission are s t i l l very much applicable. In divorce suits 157 the Director of Child Welfare screens a l l p e t i t i o n s involving children and applies for the appointment of a Queen's Proctor where appropriate to ensure that the children's i n t e r e s t s are protected. However, t h i s i s a very unreliable process because the only information before the Director i s the p e t i t i o n which i s required to be served on him. Moreover, the Queen's Proctor takes a very low-key stance. He merely adopts the r o l e of a s o c i a l worker, interviewing the spouses and submitting a written report to the judge. He i s discouraged by the judges to make any recommendation in his report and he never assumes the r o l e of advocate for the c h i l d i n court. In these circumstances i t i s not surprising to learn that the judges f i n d the Queen's Proctor of l i t t l e assistance. One j u r i s d i c t i o n which has been l e g i s l a t i v e l y active i n t h i s f i e l d i s B r i t i s h Columbia. In 1974 the Un i f i e d Family 65 Court Act was enacted, Section 8 of which provided for the appointment of family advocates to act as counsel for children. This Act has now been repealed by the Family Relations Act, 1978,^ but Section 2 of thi s l a t t e r Act continues the system of family advocates. That Section provides " ( l ) the Attorney-General may appoint a person who i s a member i n good standing of the Law Society of B r i t i s h Columbia to be a family advocate. (2) A family advocate may, notwithstanding any other Act and subject to the law of Canada, attend a proceeding under t h i s Act or respecting (a) the adoption of a c h i l d , or (b) the guardianship of a c h i l d , guardianship of the person of a c h i l d or guardianship 158 of the estate of a c h i l d , or (c) the custody of, maintenance for, or access to a c h i l d , or (d) the alleged delinquency of a c h i l d , or (e) the Protection of Children Act and intervene at any stage in the proceeding?;, to act as counsel for the interests and welfare of the c h i l d . " However, there are important differences between the two sections.. Under the previous provision the advocate intervened on his own i n i t i a t i v e or upon the court's i n s t r u c t i o n . Yet, under Section 2 of the new Act i t seems that intervention i s l e f t e n t i r e l y to the discretion of the advocate himself. There i s no power for the court to order the advocate to act; at most there could only be a request emanating from the court. Under the previous l e g i s l a t i o n the practice was for the court to request that counsel be appointed for a c h i l d . The Attorney-General would then either appoint one of the two f u l l - t i m e family advocates or, i f they were unavailable, an ad hoc family advocate would be appointed from the l e g a l profession for the i n d i v i d u a l case. There i s no reason why t h i s practice cannot continue under the new l e g i s l a t i o n but, of course, on the understanding that the court i s not in a position to demand that the advocate intervene. I t remains to be seen what the p o l i c y of the Attorney-General w i l l be i n this area. 159 This i s obviously a highly unsatisfactory s i t u a t i o n for a court to be i n ; The court should have the power to appoint counsel to act independently for children. Of course, there i s always the parens patriae power to f a l l back on, but as we have seen there are li m i t a t i o n s on that power, and a court must be extremely careful i n defining the rights and duties of the amicus when appointing the same. One alternative might be to follow the lead of Ontario and Saskatchewan and u t i l i z e the services of the O f f i c i a l Guardian. Section 4 of the B r i t i s h 68 Columbia O f f i c i a l Guardian Act would seem to permit t h i s . That Section directs the Public Trustee to "act as guardian ad litem of a l l infants whenever such a guardian i s required under Rules of Court and other orders."°9 Yet, I emphasise again, that what i s required i s a clear l e g i s l a t i v e mandate authorizing the court i t s e l f to appoint l e g a l counsel to represent children. In the Australian Family Law Act, 1975 as amended, Section 65 provides the Family Court with such a mandate. That Section states as follows : "Where, in proceedings with respect to the custody, guardianship or maintenanceccf, or access to, a c h i l d of the marriage, i t appears to the court that the c h i l d ought to be separately represented, the court may, of i t s own motion, or on the application of the c h i l d or of an organization concerned with the welfare of children or of any other person, order that the c h i l d be separately represented, and the court may make such other orders as i t 160 thinks necessary for the purpose of securing such separate representation." In addition, regulation 112 (2) of the Family Law Regulations, 71 1975 as amended, enables the court ordering separate representation to request the Australian Legal Aid O f f i c e to arrange such representation. What happens i n practice i s the court makes an order for separate representation, and whether or not a request under regulation 112 (2) i s made, the Australian Legal Aid O f f i c e i s advised of the order, and arrangements are then made for a member of the l e g a l profession to act for the children. Thus, a l l costs are borne by the Government. (3) PRIVATE OR PUBLIC REPRESENTATION? The obvious question at this stage i s whether c h i l d advocates should be employed f u l l - t i m e by the Government or drawn on an ad hoc basis from the p r a c t i s i n g l e g a l profession. I t i s v i t a l that the r i g h t choice i s made, because where counsel i s appointed, a judge who would normally take i t upon himself to look to the child's i n t e r e s t s , w i l l r e i y i n this 72 regard on such counsel. Thus, i f counsel f a i l s to adequately f u l f i l his r o l e , the c h i l d may be at a greater disadvantage than i f no counsel at a l l was appointed. The attraction of having f u l l - t i m e advocates i s that 161 they can develop the necessary expertise i n acting for children as well as maintain r e l i a b l e sources i n both the i n v e s t i g a t i v e and behavioural science f i e l d s . Naturally, being Government employees, they would have easier access to Government agencies and the l i k e . T h e o r e t i c a l l y they would always be available, and i n p a r t i c u l a r for emergencies, but t h i s would na t u r a l l y depend upon how many advocates there were and t h e i r respective work loads. In t h i s regard i t i s i n t e r e s t i n g to look at the wide and varied duties of the f u l l - t i m e family advocates i n B r i t i s h Columbia. They are not r e s t r i c t e d to appearing for children i n court and they work as well i n other areas of the court's operations. For. example, they play a part i n the on-going training of family counsellors, they provide assistance to members of the bar, and they advise the 73 public who seek the assistance of.the court. In t h i s way the incumbents become t r u l y expert i n a l l facets of the re l a t i o n s h i p between the family and the law. On the other hand there are disadvantages. In the f i r s t place, i t may not be possible to. attr a c t lawyers with the necessary q u a l i f i c a t i o n s and experience, but assuming there i s a successful recruitment 74 compaign, the problem is- then to r e t a i n these people. The danger i s simply one of boredom as a r e s u l t of handling similar cases day i n , day out. Yet, : perhaps this may be a way of sorting out those lawyers with no aptitude for the type of work. I t seems to me that children are inte r e s t i n g enough creatures to provide the advocate with more than enough variety. 162 However, the major disadvantage of f u l l - t i m e counsel i s . t h a t they can become i d e n t i f i e d with the system, p a r t i c u l a r l y i f they are employed as a support service to the court and have 7 5 t h e i r base of operation there. Naturally, such i d e n t i f i c a t i o n would be off-putting to the l i t i g a n t s as well as n u l l i f y i n g the advocate's value as an independent, unbaised -if. influence i n the resolution of a custody dispute. Although children generally might be i n s e n s i t i v e to t h i s i d e n t i f i c a t i o n because of their age and maturity, there i s always, the p o s s i b i l i t y of i t f i l t e r i n g through to the c h i l d and preventing the establishment of the relationship of t r u s t and confidence 77 that i s necessary between counsel and c h i l d . From the advocate's point of view i d e n t i f i c a t i o n with the system may l u l l him into a f a l s e sense of security. As one commentator 7R has warned : "He may sit.opposite a single judge day after day, and case after case for an extended period of time, and his regular duties w i l l normally bring him into almost d a i l y contact with the probation s t a f f of the court. Under these circumstances the lawyer must exercise constant vigi l a n c e and preserve unyielding independence l e s t his desire to maintain amicable rel a t i o n s with his j u d i c i a l cohort and with the court and probation personnel reduce him to an i n e f f e c t i v e rubber stamp." In a similar vein i t may become d i f f i c u l t f o r a f u l l -time advocate.to always f u l f i l the dual r o l e of acting as the child's go-between i n dealing with the court, and acting as the child's confidant i n l i s t e n i n g to and understanding his 163 problems. An oppressive workload may create this d i f f i c u l t y . On the other hand, a private attorney may be less hurried and be able to provide the necessary personal touch. U t i l i z i n g the l e g a l profession on an ad hoc basis obviously provides a degree of f l e x i b i l i t y and avoids any i d e n t i t y c r i s i s , but I am not at a l l convinced that t h i s i s the answer. In the Australian j u r i s d i c t i o n there are no f u l l - t i m e counsel as i n B r i t i s h Columbia, and only private p r a c t i t i o n e r s are appointed to represent children. Moreover, counsel are appointed " w i l l y n i l l y " with no overt attempt to develop an experienced bar on which to draw. Thus, counsel generally have no p a r t i c u l a r expertise in representing children and, to me, t h i s i s a serious defect which i n many instances has completely n u l l i f i e d the e f f e c t of the appointment i t s e l f . I t should be obvious that the q u a l i t i e s required in a c h i l d , 79 advocate are not inherent i n every p r a c t i t i o n e r . Indeed, at times counsel must discard t r a d i t i o n a l advocacy and take on the r o l e of a s o c i a l worker. These are s k i l l s which are only acquired with experience, and unless a select bar i s created within the profession i t s e l f , I suggest that f u l l - t i m e counsel 80 are preferable to ad hoc appointments. 164 (4) THE ROLE OF INDEPENDENT COUNSEL Once appointed there would appear to be three roles that counsel acting for children can f i l l ; the t r a d i t i o n a l adversary ro l e , amicus curiae, or s o c i a l worker. In the words of Bernard D i c k i n s 8 1 : "The adversary r o l e i s t r a d i t i o n a l l y combative i n urging the c l i e n t ' s case.under s t r i c t rules of law and procedure, s t r i v i n g to establish the v i r t u r e of his cause by the f a c t of p r e v a i l i n g . The amicus curiae model i s comparably l e g a l i s t i c but neutral as to outcome, seeking to a s s i s t the administration of j u s t i c e by advising on law and f a c t i n the hope of counter-vailing more di s t o r t i n g partisan contentions and leading to the best resolution of issues. The s o c i a l work model i s concerned to help the c h i l d affected by l i t i g a t i o n , as party or otherwise, by proposals, concessions and collaboration to put the children expeditiously into the most s a t i s f a c t o r y condition that can be achieved." In truth, i f the task at hand i s analysed, a combination of a l l three models may be required, with emphasis being given to d i f f e r e n t components according to either the capacity of the subject c h i l d , the p a r t i c u l a r issue at hand, or, indeed, the attitude of the judge. The aim of the exercise i s to place the views, feelings and thoughts of the c h i l d before the court i n a manner untainted by any question 84 of parental rights and i n t e r e s t s . Every shred of evidence pertaining to the child's physical and psychological well-being must be presented. Yet, counsel must also make every e f f o r t to spare the c h i l d the trauma of a bitterly-fought t r i a l . 165 The inherent problem with counsel acting as a true advocate i s the fact that the child's age, disp o s i t i o n , or lack of maturity may prevent the establishment of the t r a d i t i o n a l lawyer-client r e l a t i o n s h i p . Such a relationship i s based on the premise that the c l i e n t i n s t r u c t s the lawyer who then acts s o l e l y on those instructions. Yet, here, counsel may not be able to obtain i n t e l l i g i b l e instructions for the reasons outlined. Does counsel simply avoid the issue by presenting the facts to the court and leaving i t to the judge to make the determination? Or does counsel import into his advocacy his own views and assessment of where the best interests of the c h i l d l i e . To adopt the l a t t e r course i s to wear the hats of amicus curiae and s o c i a l worker over the hat of the t r a d i t i o n a l advocate. Yet i n this highly specialized 85 j u r i s d i c t i o n I consider such a stance i s ess e n t i a l . The judge requires an unbiased view to counter-balance the partisan 86 attitudes in v a r i a b l y taken by the feuding parents. For independent counsel to provide this input has the desirable e f f e c t of preventing the judge from having to descend into the arena of the proceedings i n search of the best in t e r e s t s of the 87 c h i l d . I t also r e l i e v e s the judge of some of the enormous pressure placed on him by the unenviable task of having to determine the future of the c h i l d before the court. However, i t cannot simply be a matter of counsel r e l y i n g on his own views i n the assessment he makes of the best 166 int e r e s t s of the c h i l d . He must become au f a i s with both the psychology and the s o c i a l environment of the p a r t i c u l a r c h i l d . Here he must r e l y heavily on the opinions of behavioural op s c i e n t i s t s . I emphasise the word " r e l y " , because i t may be that counsel does not agree with the opinion of the expert, yet, unless counsel himself can lay claims to having expertise i n the s o c i a l sciences, I suggest that he should accord due deference to any well-considered, substantiated opinion of an expert i n his f i e l d . Of course, t h i s i s not to say that counsel should s e t t l e for one expert opinion i f he i s unhappy with the same. I t i s not uncommon for experts to d i f f e r i n their views and in f a c t i t may be necessary for a number of reports to be obtained before counsel can be s a t i s f i e d that he has s u f f i c i e n t information on which to base his submissions to the court. The peculiar position of counsel for the c h i l d i s i l l u s t r a t e d even more acutely when the wishes of the c h i l d do not coincide with counsel's assessment of his or her best i n t e r e s t s . In a t r a d i t i o n a l lawyer-client r e l a t i o n s h i p , the lawyer would be obliged to either advance the c l i e n t ' s views regardless of his personal opinion or withdraw e n t i r e l y from the case. However, I do not consider that either alternative 89 should necessarily apply i n the si t u a t i o n envisaged. Subject to what I say below regarding the e f f e c t of the age, disposition and maturity of the c h i l d , I f e e l that here the duty of counsel 167 i s to apprise the court of both the child's wishes and his own assessment, together with the evidence on which he has reached his conclusion, a l b e i t t h i s may o f f - s e t one of the advantages of separate representation i t s e l f and leave the judge with a 90 heavier burden to bear. I see t h i s as the most e f f e c t i v e way of counsel f u l f i l l i n g his dual task of providing input from the c h i l d and protecting the child's best i n t e r e s t s . However, apart from the e f f e c t on the judge, there are three d i f f i c u l t i e s with this approach, at least one of which may be able to be resolved s a t i s f a c t o r i l y : (a) There i s the p r a c t i c a l problem of how counsel conducts his examination and crossexamination of witnesses. The solution here can only be to emphasise counsel's position as amicus curiae and conduct the case from the point of view of providing the court with as much information as possible. (b) The l o g i c a l conclusion to be drawn from the f a c t of counsel going beyond the expressed wishes of the c h i l d i s that the c h i l d does not have f u l l party status. However, i t could be argued that counsel i s appointed as representative of the interests of the c h i l d rather than of the c h i l d himself, and t h i s j u s t i f i e s the suggested course of action. The flaw i n this argument though-, i s that i n r e a l i t y counsel represents both the c h i l d and the child's i n t e r e s t s , and, accordingly, the conclusion may be inescapable that the c h i l d i s accorded less than f u l l party status i n t h i s 168 s i t u a t i o n . (c) The c r i t i c i s m can be made that by creating a d i s t i n c t i o n between the situ a t i o n where a child's i n t e l l i g i b l e wishes coincide with counsel's assessment of the child's best i n t e r e s t s , and the situ a t i o n where there i s no such concurrence, a c h i l d may be placed i n a disadvantageous position according to whether counsel agrees with his or her wishes or not. In other words, whether a child's wishes are f o r c e f u l l y advocated or not should not be l e f t to the discretion of independent counsel. However, i t seems to me that t h i s i s one rati o n a l e behind the appoint-ment of independent counsel i n the f i r s t place, and provides yet another example of the need for experienced advocates to be retained. In any event, I suggest that what independent counsel i s doing i n exercising t h i s discretion i s not so far removed from what lawyers necessarily do i n representing any other c l i e n t . The lawyer invar i a b l y f i l t e r s and interprets his c l i e n t ' s story, and represents the same i n court according to his own assessment of the most e f f e c t i v e way of presenting the case, regardless of the c l i e n t ' s wishes. The age, disposition and maturity of the c h i l d w i l l become important here, because, as a matter of p r a c t i c a l i t i e s , the wishes of a c h i l d who i s of such an age or of s u f f i c i e n t 91 maturity to make a reasoned choice should be respected. Both 169 counsel and the court should appreciate that i t would be f r u i t l e s s to place such a c h i l d anywhere but i n accordance with on his or her expressed wishes. On the other hand though, counsel must be certain that such wishes are i n f a c t what the c h i l d wants. I t may be that the c h i l d i s mature enough to reach his or her own decisions generally, but this maturity may not have been brought to bear i n t h i s p a r t i c u l a r decision. My practice here was to speak informally with the c h i l d about his or her thoughts and explain my own assessment of the s i t u a t i o n . Sometimes i t transpired that the c h i l d had not considered certain factors and was prepared to reconsider his or her stand. Conversely, I r e c a l l one occasion where such a discussion revealed that I had been too hasty i n my i n i t i a l i nvestigations. Of course, I never hesitated to involve a counsellor attached to the Family Court i n such discussions i f I found myself i n need of expert assistance. The need to have independent counsel test the wishes of the children was recognized i n the case Hatzioannidis v -93 Hatzioannidis; There, two children, 16 and 14 years of age respectively, f i l e d a f f i d a v i t s i n court indicating that they did not want to l i v e with th e i r mother anymore. The O f f i c i a l Guardian happened to walk into the court-room during the course of the t r i a l and the judge requested him to interview the two children and give them independent l e g a l advice. After receiving the report of the O f f i c i a l Guardian Galligan J . 170 reached the following conclusion : " I t seems to me that i f I were to order t h i s father "to deliver these children to th e i r mother, and i f he did so, the children would refuse to go with t h e i r mother ... They have been i n the presence of t h e i r mother and they have been interviewed by t h e i r mother's counsel. They have been interviewed by (the O f f i c i a l Guardian), who has strongly urged that they reconsider and return to t h e i r mother. They have been subjected to persuasion by t h e i r mother to return. Yet they remain adamant that they w i l l not return. An order directing them to return to their mother would be an order that could not reasonably be enforced." The obvious d i f f i c u l t y confronting counsel, and i n turn the judge, i s on what basis do you assess the child's wishes, thoughts and feelings. Can you simply look at age groups or i s that too naive? In my experience, and: as I have stressed previously, the age of a c h i l d can only be used as a general guide. I have found children as young as 6 and 7 years of age to whose expressed wishes I have accorded great weight. At the other end of the scale there have been children as old as 14 and 15 years of age who have made very l i t t l e impression indeed. Accordingly, i t i s dangerous to be dogmatic on t h i s issue and I consider i t unfortunate that the Australian Family 95 Law Act, 1975 as amended, provides for the wishes of children over the age of 14 years to be determinative except i n special circumstances.^ Of course, as we have seen, behavioural science knowledge can be Leon used has concluded to formulate that 171 rebuttable legal presumptions concerning the capacity of children to i n s t r u c t counsel and reach competent decisions. 99 Yet, Leon concedes that a great deal more research i s required from behavioural s c i e n t i s t s before presumptions such as those postulated can provide more than a s k e l e t a l structure to the discretion reposed i n both the lawyer and the judge. ( 5 ) THE RELATIONSHIP BETWEEN COUNSEL AND CHILD From the discussion thus far i t should be obvious that a c h i l d advocate needs to be a very sp e c i a l animal. He i s working i n a j u r i s d i c t i o n with unique c h a r a c t e r i s t i c s , and which demands a new concept of proper representation. In p a r t i c u l a r , conscientious counsel w i l l need to be discriminating i n the use of techniques geared for the conduct of criminal and c i v i l cases. Personal attributes of counsel are also important. D i c k e n s 1 0 0 summarises the necessary q u a l i t i e s i n t h i s way : "The c h i l d advocate should know how to interview his young c l i e n t , how to l i s t e n and how to perceive when the c h i l d i s repressing , misdescribing or deflecting his concerns. I f his c l i e n t i s too young to speak, the advocate must be able to comprehend s p e c i a l i s t ' s reports predicting the child's future i n d i f f e r e n t p o t e n t i a l environments. He should gain a sense of what the c h i l d who can communicate considers important i n making assessments, while also haying the v i s i o n to accommodate immature judgement i n determinations having longer-term effects than a c h i l d has the experience to recognise." A f e e l i n g for children i s c l e a r l y e s s e n t i a l and the advocate 172 must be able to establish a rapport with the c h i l d . 1 0 " 1 ' The c h i l d must have confidence i n counsel and trust him i m p l i c i t y . To achieve t h i s state of a f f a i r s the advocate must be completely open with the c h i l d and keep him or her f u l l y informed of any developments. This can r e l i e v e stress and a s s i s t the c h i l d to understand the process which i s about to have such a large impact on his or her l i f e . Counsel i s also able to a l l a y some of the child's fears, and r e l i e v e some of the parental pressure on the c h i l d as the t r i a l draws near, and parents attempt to persuade the c h i l d to one choice or the other, either expressly or impliedly. I have also found i t important to be as frank as possible with the c h i l d about the f a c t of the dissolution of the family unit. Unfortunately, many parents practice a form of deceit on the c h i l d and keep him or her i n the dark as long 102 as possible about what i s r e a l l y happening. This not only tends to produce a greater reaction i n the c h i l d when he or she does f i n d out, but i t may also embitter the c h i l d against the parent who has been hiding the truth. The c h i l d might misinterpret the motives of the parent and f e e l that he or she i s not worthy of the t r u s t of that parent. One extremely valuable device to gain the t r u s t and confidence of a c h i l d i s to i n i t i a l l y u t i l i z e the services of a close r e l a t i v e or f r i e n d . Such person should be encouraged to 173 attend interviews with the c h i l d and generally act as an intermediary. Their presence tends to overcome any nervousness and reticence on the part of the c h i l d , and as the c h i l d sees t h i s person re l y i n g on the advocate, so he or she i n turn w i l l come to do the same. However, this approach should only be u t i l i z e d to break the i c e , as i t were, between the c h i l d and the advocate, because there w i l l be matters which the l a t t e r w i l l want to explore with the c h i l d that the c h i l d may f e e l i n h i b i t e d about, even i n the presence of a close f r i e n d or r e l a t i v e . Moreover, I am sure most lawyers have experienced the f r u s t r a t i o n of the well-meaning r e l a t i v e who attempts to d i r e c t the course of events. Once le g a l counsel has the t r u s t and confidence of the c h i l d i t i s v i t a l that the same not be betrayed, either i n t e n t i o n a l l y or unintentionally. The disintegration of the family u n i t and the c o n f l i c t over custody i s traumatic enough for the c h i l d without having his or her f a i t h undermined i n the one and only confidant that he or she may have. There are two situations where counsel needs to tread warily i n order to preserve the confidence of the c h i l d . The f i r s t i s where the child's wishes and the advocate's assessment of the best interests of the c h i l d do not coincide. As I have 1 03 said, I consider that i n most cases the duty of counsel here i s to place both views before the court i n the fashion of an 174 amicus curiae. However, from the outset counsel should make i t p e r f e c t l y clear to the c h i l d that t h i s i s what w i l l happen. Naturally the c h i l d w i l l be disgruntled, but the necessary rela t i o n s h i p should remain i n t a c t . The second s i t u a t i o n involves the c o n f i d e n t i a l i t y of communications between the c h i l d and the advocate. In other words, what i s the extent of the duty owed by counsel to the ch i l d where the l a t t e r apprises counsel of a fac t which in normal circumstances should be disclosed? In the t r a d i t i o n a l lawyer-client relationship a l l communications are pri v i l e g e d . Yet, as we have already seen, t h i s i s not a t r a d i t i o n a l r e l a t i o n s h i p , and i t seems to me that i f counsel feels that disclosure would be i n the best i n t e r e s t s of the c h i l d , then he should act a c c o r d i n g l y . 1 0 4 However, he should be very circumspect i n so acting because he w i l l be betraying the tr u s t and confidence of the c h i l d . Obviously one very weighty factor to be considered when determining whether i t i s i n the best interests of the c h i l d to disclose w i l l be thi s very danger of destroying the relat i o n s h i p between counsel and c h i l d . The only thing counsel can do here i s to make the c h i l d aware from the outset of this p o s s i b i l i t y , and that any disclosure w i l l only be i n the child's best i n t e r e s t s . However, t h i s i n i t s e l f creates problems because a c h i l d , being made aware of this p o s s i b i l i t y , may tend to be less than candid i n his deal-ings with his counsel, and this may very well f r u s t r a t e the 175 raisoh d* etre o£ independent legal counsel for the c h i l d . Of course, t h i s i s not to say that no p r i v i l e g e at a l l should attach to communications between counsel and c h i l d as was the submission made i n the B r i t i s h Columbia case of 105 Re Cameron. There, i t was argued that the requirement i n Section 42 of the Laws Declaratory Act, 1974, that the court consider the best i n t e r e s t s of the c h i l d , rendered the welfare of the c h i l d the paramount consideration, which i n turn overrode the p r i v i l e g e emanating from the s o l i c i t o r - c l i e n t r e l a t i o n s h i p . Judge Campbell of the P r o v i n c i a l Court of B r i t i s h Columbia rejected this argument on the ground that the best i n t e r e s t of the c h i l d was only to be considered by the court, and i t was not the sole determining factor. Moreover, he f e l t that abrogation of the p r i v i l e g e may not always be advisable when considering the best i n t e r e s t s of the children. Although doubts may be expressed about the v a l i d i t y of Judge Campbell's p r i n c i p a l ground for r e j e c t i n g the argument, his reasoning does not a f f e c t my proposition. I am not suggesting, as was the argument i n that case, that the best in t e r e s t s of the c h i l d i n e v i t a b l y requires disclosure; I am saying that the p r i v i l e g e should s t i l l remain, but that counsel for the c h i l d should have a discretion to disclose where he considers that such disclosure w i l l promote the best i n t e r e s t s of the c h i l d . 176 The case i t s e l f i s i l l u s t r a t i v e of the importance and weight attached to the p r i v i l e g e existing between counsel and c h i l d . The c h i l d was the subject of Protection of Children 107 Act proceedings, and counsel had been appointed to act for her. In the course of preparation for t r i a l the c h i l d disclosed to her counsel that she was going to run away and requested that her location not be divulged. The question was whether Section 7 (2) of the said Act compelled counsel to reveal t h i s information. Judge Campbell ruled that as a matter of statutory inter p r e t a t i o n , Section 7 (2) did not al t e r the s o l i c i t o r - c l i e n t p r i v i l e g e , and thus, disclosure 109 could not be compelled. Yet, as Professor Maczko points outt the judge was " c l e a r l y concerned to protect the s o l i c i t o r - c l i e n t p r i v i l e g e even i n r e l a t i o n to a c h i l d " , and i t i s an open question whether higher courts w i l l adopt the same inter p r e t a t i o n . Obviously there i s a need for a clear statement i n the l e g i s l a t i o n providing for the appointment of lega l counsel, specifying the duty that such counsel has i n this r e g a r d . 1 1 0 (6) THE TIME OF APPOINTMENT OF COUNSEL Naturally, i t w i l l take time to develop the necessary re l a t i o n s h i p of tr u s t and confidence between the c h i l d and the advocate. Thus, i t i s important for counsel to be appointed 177 at the e a r l i e s t possible moment. Theore t i c a l l y , counsel should be appointed immediately the family uni t disintegrates, but, this i s not p r a c t i c a l , unless the parents themselves arrange separate representation for the c h i l d . This i s rare though, and i n f a c t may be less than i d e a l . The counsel retained may f e e l that there i s some obligation to the parent who retained him, thus preventing him from being a t r u l y independent advocate for the c h i l d . I t would also be unclear what the court's reaction would be i n the event that the dispute went that f a r . The court may f e e l that there should not be representation or that the representation arranged i s unsatisfactory. Yet, i n the case of Johnston v J o h n s t o n 1 1 1 the c h i l d came to court with counsel already retained, and the court permitted such counsel to lead the c h i l d through her evidence and make submissions on her behalf, even though no' 112 authority for t h i s course of action could be found. The Law Reform Commission of Canada has recognised t h i s need for early involvement of counsel for the c h i l d . In i t s 113 Working Paper on the Family Court i t states : "The Commission envisages the development of rules of procedure under which, well i n advance of the t r i a l , there w i l l be a review of the facts i n issue and an opportunity for an appropriate o f f i c e r of the court to exercise a discretionary power to appoint counsel to represent the inte r e s t s of the c h i l d u n t i l the matter i s concluded." Invariably though, counsel i s not appointed u n t i l the 178 matter comes before a judge, and sometimes the request for separate representation i s not made u n t i l after the actual t r i a l has commenced. In fa c t , i t must be remembered that i n B r i t i s h Columbia the position of a family advocate appointed pursuant to Section 2 of the Family Relations Act, 1978, 1 1 4 i s s o l e l y as an intervener i n proceedings that have already been i n s t i t u t e d . The proceedings then have to be adjourned to provide counsel with an opportunity of coming to terms with the c h i l d and his or her si t u a t i o n . Although t h i s i s ess e n t i a l , i t has the undesirable e f f e c t of elongating the proceedings and prolonging the traumatic experience for the c h i l d . There i s also the p o s s i b i l i t y that such delay w i l l enhance the prospects of the parent having de. facto custody of the c h i l d by allowing the c h i l d to become more s e t t l e d i n the care of that parent. Thus, i t i s c r u c i a l that as soon as a judge becomes seized of a custody dispute, he should turn his mind to the question of whether to order or request separate representation for the children. He should not r e l y on the parties to bring the matter to his attention because, i f t h i s occurs at a l l , i t generally occurs at a late stage i n the proceedings. An unfortunate s i t u a t i o n i n t h i s regard arose i n the 1 1 5 case of Mr>re v Primeau. There, a p r e - t i a l conference was held between the parties and an order was made requesting a f u l l p s y c h i a t r i c report. The report was prepared and f i l e d with the court. One recommendation of the p s y c h i a t r i s t was 179 that the c h i l d be independently represented, but t h i s did not come to the notice of the t r i a l judge u n t i l approximately one month before the actual hearing. He immediately consulted the O f f i c i a l Guardian who undertook to speak to counsel and consider the p o s s i b i l i t y of a s s i s t i n g at t r i a l . However, for various reasons the O f f i c i a l Guardian's Ottawa agent was not instructed u n t i l midway through the second.day of the t r i a l , at which stage a conference took place and i n the words of the t r i a l j u d g e 1 1 ^ : "We a l l agreed that no useful purpose could be served by i n v i t i n g the p a r t i c i p a t i o n of the O f f i c i a l Guardian at this stage. To have done so would have required a delay of considerable proportions to permit the O f f i c i a l Guardian to employ experts to review the case and examine the c h i l d and the parties. I t was agreed a further delay was undesirable, p a r t i c u l a r l y when i t was not certain that any b e n e f i c i a l r e s u l t was l i k e l y to occur from further investigation. I t was not only unfair to the party not having custody but contrary to the child's best in t e r e s t s to prolong the uncertainty about his future." Now, although I do not necessarily agree with the decision not to proceed with independent representation, the case illustrates, the d i f f i c u l t i e s created by a f a i l u r e to arrange such 117 representation as early as possible. As a f i n a l comment, i t should be noted that not only w i l l appointment of legal counsel at the e a r l i e s t possible moment allow the necessary r e l a t i o n s h i p to develop, but i t w i l l also provide counsel with the opportunity of making the best use of experts i n the s o c i a l sciences. The prospects of settlement 180 w i l l also be greatly enhanced with the presence of an advocate for the c h i l d from an early stage i n the proceedings, and I w i l l elaborate on t h i s aspect i n the following section. (7) THE APPROACH OF COUNSEL (a) PRE-TRIAL Unlike counsel for the parties the c h i l d advocate should not s i t back and simply wait for the t r i a l . His f i r s t task, I suggest, i s to arrange an interview with the c h i l d . Although th i s may sound simple, i n r e a l i t y i t can present the biggest hurdle. Counsel w i l l not have seen the c h i l d before, and vice versa. The c h i l d may also be of such an age and temperament that an interview would be t o t a l l y abortive. Thus, counsel must be very circumspect i n his approach to thi s i n i t i a l meeting. Not only should he have a close fri e n d or r e l a t i v e present, but some background information should be sought.. Naturally, he should speak to the parents, but i t might even be prudent to have a welfare o f f i c e r interview the c h i l d to ascertain whether there w i l l be any p a r t i c u l a r problems with a 118 meeting with counsel. Obviously, i f i t i s impossible for counsel to interview the c h i l d he w i l l need to r e l y s o l e l y on reports from the s o c i a l s c i e n t i s t s . This w i l l place him at a d i s t i n c t 181 disadvantage, because, although a well-prepared report w i l l doubtless go a long way towards presenting the child's i n t e r e s t s and reactions, i t cannot replace e n t i r e l y the personal touch of an interview. In addition, counsel's interview would have been conducted having regard to how evidence i s to be presented i n court, and the l i k e l y a d m i s s i b i l i t y of that evidence, factors which a welfare worker does not have i n mind when preparing a report. Following the interview (or r e c e i p t of a report, i f an interview i s impossible) counsel should then arrange a conference with the parties and t h e i r respective s o l i c i t o r s to ascertain what the contentious issues are. Naturally, counsel cannot compel the parties to attend such a conference but parties r a r e l y f a i l to appear. This i s no doubt because they associate counsel with the authority of the court and they are concerned that t h e i r absence w i l l prejudice t h e i r chances of success. Moreover, i f t h e i r respective counsel are worth t h e i r 119 s a l t , the parties would have been advised to attend. At t h i s conference i t i s not unusual for i t to become apparent that the parties are not very far apart. In these cases i t i s often h e l p f u l to immediately arrange counselling for the parties, which can sometimes lead to a settlement. I f not, or i f counselling i s not c a l l e d f o r , counsel should then set about his own investigations as well as arranging for 182 reports to be provided by behavourial s c i e n t i s t s . Then, armed with t h i s background material he should arrange a further conference where he makes an a l l - o u t e f f o r t to s e t t l e the dispute. He should apprise the parties and th e i r s o l i c i t o r s of the r e s u l t s of the investigations, and, i f necessary, have the experts present. Whether the c h i l d should attend i s debatable because he or she might f e e l i l l at ease at being the centre of a t t r a c t i o n . Yet, at the very least, the c h i l d should be nearby in the event that he or she i s required. My own practice was to only have the c h i l d attend i f he or she was of s u f f i c i e n t age and maturity not to be adversely effected by a possible emotional confrontation between the parents. However, on occasions I have l e f t i t e n t i r e l y up to the c h i l d after f u l l y informing him or her of what was l i k e l y to occur. Importantly though, i f the c h i l d does not attend the conference,-he or she should be advised of everything that transpires. I t may be necessary to have more than one such conference before any headway i s made, but i n my experience the 120 number of disputes s e t t l e d at t h i s stage i s quite high. One reason for t h i s i s that the mere presence of independent l e g a l counsel acts as a c a t a l y s t to settlement. This i s c e r t a i n l y the case i n the Australian j u r i s d i c t i o n , and i t seems to be the 191 122 same i n B r i t i s h Columbia. Being appointed by the court, parties n a t u r a l l y tend to associate counsel's opinion with that of the court. In addition the parties w i l l generally be 183 advised by t h e i r respective counsel that unless t h e i r position i s supported by the advocate for the c h i l d , then t h e i r chances of success are slim. Of course, there i s always the sit u a t i o n where counsel for the children must do more than j u s t attend the conference. There are times when he must bring the parties to t h e i r senses, parties who have rushed headlong into proceedings bent on obtaining revenge or r e t r i b u t i o n without regard for the wishes of the children or the detrimental e f f e c t that such action could have on them. One important aspect here i s the provision of expert opinions from behavourial s c i e n t i s t s who have not been retained by either party. Unfortunately, with an expert who has been retained by one party, i t i s r a r e l y the case that he has interviewed both parents and the c h i l d , and his opinion w i l l i n v a r i a b l y support the position of the party who sought his assistance. On the other hand, with an independent expert's opinion, counsel w i l l be able to demonstrate more convincingly to the parties the harm that can be caused to children i f they continue to disregard t h e i r i n t e r e s t s . I t might be argued that the influence possessed by counsel for the c h i l d i n p r e - t r i a l situations usurps the function of the judge. Yet, t h i s assumes that the settlement reached as a r e s u l t of the intervention of counsel i s necessarily the in c o r r e c t one. In f a c t , counsel for the c h i l d 1 8 4 i s i n j u s t as good a position as the judge to make the r i g h t choice. He has the advantage of an intimate relationship with the c h i l d and he has the assistance of experts from the 1 2 3 behavourial sciences. Indeed, as Professor Maczko points out, i t i s extremely rare for a judge to depart from the opinion expressed by the advocate as to the future placement of children. This again highlights the special c h a r a c t e r i s t i c s of the o f f i c e of c h i l d advocate, and the need for the incumbent to possess a high l e v e l of expertise. (b) DURING THE TRIAL There are cases where even the p r e - t r i a l e f f o r t s of counsel for the c h i l d are to no a v a i l and the t r i a l proceeds. At t h i s point i t i s again necessary to r e f l e c t on the d i f f e r e n t capacities i n which counsel can act. He can either be a t r u l y independent advocate with no r e s t r i c t i o n s on the methods available to him to promote the inte r e s t s of the c h i l d , or he 1 2 4 can merely be acting as amicus curiae. 1 2 5 The Ontario Law Reform Commission recommended that i t ' s proposed Law Guardian _ "should adopt the stance of an amicus curiae rather than that of an aggressive advocate intent only on destroying the evidence of parents or of a c h i l d welfare agency ... The child's advocate should be constructive rather than destructive i f he i s to be of use to the c h i l d and to the court". 185 However, as Catton and Leon remark 1 2^ : "This type of representation would seem better suited to proceedings involving children that are of a less adversarial nature." Accordingly, given the existing adversary system of resolving custody disputes, i t seems to me that when a matter goes to t r i a l , counsel should act primarily i n the capacity of a true advocate. This allows the f u l l e s t representation of the child's i n t e r e s t s . I t i s a l l very well to have amicus curiae to a s s i s t the court and c a l l attention to some point of law or f a c t which may be overlooked, but we are here concerned with transforming the children themselves into v i t a l cogs i n the decision-making process, and I suggest that the most e f f e c t i v e method of achieving t h i s purpose i s to i n s t a l them as pa r t i e s to the action or as close as possible to t h i s c 1 9 7 capacity. Once they are so i n s t a l l e d they are e n t i t l e d to be independently represented i n the f u l l e s t sense of the phrase. Of course, t h i s i s subject to the applicable i n o l e g i s l a t i o n authorizing such independent representation. In Australia! t h i s comprises no d i f f i c u l t y , and, i n fa c t , counsel i s now never appointed i n the sole capacity of amicus curiae. However, as we have seen there i s some confusion i n B r i t i s h Columbia with the introduction of the Family Relations Act, 1 99 1978. I t seems that the court has no statutory power to order (or even request) the appointment of a family advocate. 186 Accordingly, the court may have no alternative but to appoint the Public Trustee as Guardian ad litem, or u t i l i z e i t ' s parens patriae power and appoint counsel as amicus curiae. However, i n the l a t t e r instance the court must s p e l l out the powers that such counsel i s to have, being careful to equip him with the same rights that counsel for the parents would possess. The provision of independent l e g a l counsel at the t r i a l stage i s not the end of the matter though; i t i s j u s t the beginning. The onus i s then on such counsel to a c t i v e l y pursue the placement of the c h i l d i n accordance with his or her best i n t e r e s t s . This en t a i l s a vigorous and independent approach to the facts, i n order that the child's wishes, attitudes, anxieties and appreciation of the parental c o n f l i c t i n which he or she has become involved, can be put to the court from the point of view of the c h i l d rather than from the point of view of either of the parents. In the court-room this n a t u r a l l y means more than s i t t i n g back, not c a l l i n g or examining any witnesses, making b r i e f submissions at the conclusion of the case and generally being content with acting as a watchdog over the proceedings. Yet, t h i s happens far too £ . • 130 frequently xn my experience. I suggest that the approach of counsel during the t r i a l should incorporate the following aspects : ( i ) One of the main advantages of independent counsel i s to 187 o f f s e t the presentation to the court of both a t o t a l l y parent-oriented position and the partisan views of the 131 l i t i g a n t s . This can be achieved i n various ways. For example, counsel for the c h i l d can c a l l evidence which would otherwise not be available to the court. There may be witnesses which one of the parties does not wish to c a l l because of the p o s s i b i l i t y of t h e i r evidence being adverse to that party's i n t e r e s t s . In a t r a d i t i o n a l court-room contest i t would be within the power of the parties to manoeuvre i n thi s fashion. Yet, i t may be v i t a l for the judge to hear such evidence i n order to properly assess where the best i n t e r e s t s of the c h i l d l i e . Of course, i f the judge i s aware of such a witness and the party does not c a l l him or her, then the court can always assume that the evidence of thi s witness i s being kept from the court because of some u l t e r i o r motive, and proceed accordingly. There i s an obvious danger i n t h i s approach, yet i t seemed 132 to be taken by MacPherson J . i n Case v Case. There, 133 as we have seen, the mother was l i v i n g i n a homosexual rel a t i o n s h i p , and although her partner was present during some of the t r i a l , she was not c a l l e d to give evidence. MacPherson J . deprecated t h i s omission on the part of the mother because he considered i t e s s e n t i a l that he be able to assess a person who would be v i t a l l y concerned with the future care and upbringing of the children i f custody was awarded to the mother. The absence of t h i s witness l e f t him 188 i n a state of uncertainty whether to place the c h i l d with the mother or not, and i n the end r e s u l t he awarded custody to the father saying that he had a strong f e e l i n g that the homosexual partner was hidden from him. Now, i f the children had been separately represented, t h e i r counsel would have d e f i n i t e l y c a l l e d t h i s witness to give evidence. This case highlights the f a i l i n g of the t r a d i t i o n a l adversary process i n advancing the interests of children. I t i s axiomatic that a l l prospective care-givers be presented to the court, and i f the infusion of the concept of independent representation i n t o the adversary process achieves no other purpose than ensuring that this occurs, then the exercise has been worthwhile. I t i s a l l too common place to f i n d courts lamenting the f a i l u r e of partie s to place s u f f i c i e n t evidence before them to enable a proper assessment of the best in t e r e s t s of the children 134 to be made. ( i i ) Another area where the parental influence on the proceed-ings may need to be of f s e t by counsel in the int e r e s t s of the children, i s where neither parent presents as a suitable custodian. A court has power to award custody of children 135 to persons other than the parents, but i n normal circumstances no evidence i s placed before the court concerning any viable alternative, and the court i s l e f t 1 to choose the lesser of two e v i l s . Accordingly, a 189 v i t a l function of counsel for the c h i l d i s to investigate alternative custodians such as near r e l a t i v e s , and present evidence regarding the same during the t r i a l . ( i i i ) Apart from leading evidence before the court, counsel for the c h i l d should place a great deal of emphasis on crossexamining the parties and t h e i r witnessess. Invariably i n getting a case up for t r i a l , the legal advisers of the partie s w i l l concentrate on those aspects of t h e i r respective c l i e n t ' s case which w i l l display strengths on the one hand, and the weaknesses i n the opposing party on the other. The normal pattern of evidence w i l l be the denigration by one party of the other, coupled with assertions of unfitness for parenting, with the intention of leading the court to the conclusion that one parent or the other i s the better suited to have the custody of the children. There w i l l be l i t t l e or no emphasis on the children themselves, and thus, there w i l l be many important aspects of the case on which counsel for the parties w i l l neither examine nor crossexamine. However, the advocacy of counsel for the children w i l l be oriented towards t h e i r p o s i t i o n , and his investigations w i l l have equipped him with information concerning the children, the parents, and other care-givers, of which counsel for the parties may not 137 be aware and which w i l l thus be v i t a l i n crossexamination. (iv) The presence of counsel for the c h i l d w i l l obviously 1 3 8 r e l i e v e the pressure on the judge, and I have mentioned 190 i n p a r t i c u l a r the r o l e of such counsel i n freeing the judge from having to descend into the arena of the proceedings. This aspect emphasises that part of counsel's r o l e which can be described as amicus curiae. He acts as a watchdog i n seeing that the evidence presented i s relevant to the issue and that the judge i s afforded every opportunity to properly assess the best in t e r e s t s of the ch i l d . (v) Another v i t a l aspect of the advocate's r o l e during the actual hearing, i s when he i s c a l l e d upon to make submissions at the close of the evidence. Of necessity he should present to the court his own assessment of how best to cater for the welfare of the c h i l d , but as I have 139 indicated previously, i f the wishes of the c h i l d do not coincide with that assessment then those wishes should be made known to the court as well. Naturally, he needs to be circumspect i n his assessment, because the experience i s that judges accord great weight to the opinion of counsel for the c h i l d . Yet, he must not only be cautious for t h i s reason. There i s also the aftermath of a t r i a l to consider. There can be b i t t e r recriminations between the parents and between parent and c h i l d as a r e s u l t of what i s revealed or what happens i n court. Thus, counsel must be careful, within the bounds of his duty to promote the inte r e s t s of the c h i l d , not to leave the way open for the c h i l d to suffer the wrath of a disgruntled parent. I t i s a delicate exercise indeed, and emphasises once again the s p e c i a l 191 q u a l i t i e s required of a c h i l d advocate. (vi) The question of access also needs to be mentioned here, because i n v a r i a b l y t h i s issue r a i s e s i t s head i n a custody d i s p u t e . 1 4 0 We have already seen how many courts view access as a natural r i g h t of a parent, only to be refused i f danger to the c h i l d i s perceived. Yet, there i s another aspect here, and that i s the actual terms of any access order made. Access involves the fragmentation and rearrangement of the child's time, and a l l too frequently t h i s i s dominated by considerations of what i s convenient for the parents. Not only can counsel for the c h i l d ensure that the court has s u f f i c i e n t unbiased evidence before i t to determine whether access i t s e l f w i l l be i n the best i n t e r e s t s of the c h i l d , but also, i f access i s to be granted, he can ensure that the court i s made aware of what i s l i k e l y to be a t t r a c t i v e , productive, and enjoyable for the c h i l d . I t i s the c h i l d who i s at the receiving end of the court's order for access, and i t should accord with the child's own s o c i a l a c t i v i t i e s , his own needs for his friends, and the use of his le i s u r e time for purposes pleasurable to him and which contribute to 141 his growth and development. An enlightened attitude to the i n t e r e s t that children have i n the question of access was taken recently by Spencer J . i n the B r i t i s h Columbia case of Des Roches v 192 Des Roches,' In varying an order for access he concluded 143 with these remarks : "Now, the matter may be spoken to again at any time, of course, because an access order i s ambulatory. I am not going to f i x a date for review. I hope the parties need never come back for a review, but each party, including (the child) through her counsel,144 i s e n t i t l e d , of course, to bring the matter on before me again." (c) POST-TRIAL Very often i t i s impossible to f i n a l i s e the questions of custody and access at the actual hearing. Either the judge wants to experiment with d i f f e r e n t arrangements concerning the ch i l d , or i t i s f e l t that ps y c h i a t r i c treatment over a period of time might resolve the dispute. In both of these situations independent counsel can play an important r o l e by way of supervising and checking on the progress of the matter..' An i l l u s t r a t i o n of the use of counsel i n t h i s capacity occurred 145 i n the case of K r o l l v K r o l l . There, access was i n issue, but was complicated by the f a c t that animosity between the parents was having a deleterious e f f e c t on the psychological well-being of the c h i l d . The opinion of the p s y c h i a t r i s t was that the c h i l d needed treatment for a period of 6 months before access with the father could be contemplated. In addition, i t was f e l t that the mother would benefit from ;. contact with a s o c i a l worker for the same period of time. The court accepted these recommendations and enjoined the child's 193 advocate (together with counsel for the mother) to take such steps as would be necessary to have the programme carried out. On a more general note, counsel has a v i t a l part to play i n the aftermath of a custody dispute. His r o l e as advocate for the c h i l d does not come to an abrupt h a l t once the dispute i s sett l e d or the t r i a l i s over. I t i s injudicious for the relationship with the c h i l d , which was so painstakingly developed, to be simply l e f t hanging. The c h i l d w i l l f e e l that he or she has simply been used by counsel, and, thus, may be hesitant about placing his or her tr u s t and confidence i n another adult again. Accordingly, some form of contact with the c h i l d should be maintained. This w i l l not only serve the purpose of preventing disillusionment i n the c h i l d , but w i l l also enable counsel to a s s i s t a l l parties concerned i n accepting the decision of the court and i n adjusting to the changed s i t u a t i o n . The problem though, i s the mechanics of retaining contact with the c h i l d . Obviously i t cannot be concentrated contact, otherwise counsel could r i g h t l y be accused of i n t e r f e r i n g with the family. Indeed, the exercise could backfire, and the c h i l d might be prevented from s e t t l i n g down i n his new environment. Accordingly, counsel should be extremely circumspect i n his approach to this issue. I t may be that contact i s not necessary i n p a r t i c u l a r cases, but where i t i s required, I suggest that i t be i n the form of an occasional inquiry or v i s i t by counsel. 194 (8) CRITICISMS OF THE USE OF INDEPENDENT COUNSEL Although I see the presence of independent l e g a l counsel for children as the key to providing the necessary balance between adult and c h i l d i n t e r e s t s i n a custody dispute, I concede that there may be disadvantages, not a l l of which can be e a s i l y overcome. (a) One problem that I have touched upon previously i n another context i s the danger that the c h i l d w i l l take on the r o l e of an adversary to one of his or her parents. He or she may become over-enthusiastic with having separate representation. Conversely the parent may f e e l that a bar r i e r i s being placed between him or her and the c h i l d . Not only can t h i s e f f e c t i v e l y prevent any attempt at settlement, but i t can also make rec o n c i l a t i o n , or, at leas t , a continuing amicable r e l a t i o n s h i p , impossible. 14 This d i f f i c u l t y i s i l l u s t r a t e d by the case of Rowe v Rowe where the father had alienated the children against the mother and arranged l e g a l representation for them during the course of the proceedings. Reid J . doubted the value of such l e g a l counsel and i n awarding custody to the mother he said t h i s 1 4 8 : "They have, i n a r e a l sense been ( on his side ' f o r a long time and, i n a leg a l sense, from the time that the two older children made a j o i n t a f f i d a v i t i n June 1975, which was ultimately adduced i n evidence and which placed them f i r m l y 195 i n the father's camp for the purposes of the t r i a l . Whatever the mother's chances of winning over the children under the interim custody arrangements p r i o r to the making of that a f f i d a v i t and the retaining of counsel for the children, they would i n my opinion disappear completely on counsel being retained and upon such an a f f i d a v i t being made. The mother was asked by Mr. Rowe's counsel why i t was that she had been unable to achieve a reconciliation with her children^during the term of the interim custody order and she said she did not know, but she added that she found i t easy enough to discuss a l l other matters with her children than the matters i n issue i n the courts. I am not surprised that she was unable to e f f e c t any r e c o n c i l i a t i o n with children who had been cast by these events as adversaries to her i n a court battle and who c l e a r l y recognised t h e i r p o s i t i o n . " He f e l t that there may be cases where i t i s appropriate for the O f f i c i a l Guardian to act for children during the actual hearing, but " ( e ) a r l i e r involvement of s o l i c i t o r s for children can ... cause more harm than good."149 Although t h i s ease i s a rather extreme example because of the father's pre-existing influence over the children, and because of the f a c t that counsel for the children was not t r u l y independent, i t nevertheless i l l u s t r a t e s how parent and c h i l d can be driven further apart as a r e s u l t of separate representation. The solution might be to involve the parents as much as possible i n the inte r a c t i o n between c h i l d and counsel, not only at conferences, but at interviews and investigations conducted by counsel. Admittedly, there w i l l be d i f f i c u l t i e s , p a r t i c u l a r l y where 196 there i s a great deal of animosity between the parties, but i t i s a question which must be faced i n l i g h t of the evidence from the s o c i a l sciences that a c h i l d needs a continuing r e l a t i o n s h i p with the non-custodial parent i n order to maintain a balanced outlook on l i f e . Nor i s i t a case of simply ordering access and hoping for the best; the problem must be tackled at the e a r l i e s t possible moment, or preferably prevented altogether. This i s just one more delicate matter requiring a t a c t f u l approach by counsel for the c h i l d . (b) C r i t i c i s m of independent representation has come from another source as w e l l . There i s a school of thought that the presence of another lawyer i n court merely tends to lengthen the proceedings without contributing a great deal to the resolution of the dispute. I concede that a court hearing may be lengthened, but I suggest that i f counsel i s to f u l f i l his duty to the c h i l d , t h i s i s a necessary occupational hazard. However, I j o i n issue with the second leg of such c r i t i c i s m . Admittedly, there w i l l be instances where the same r e s u l t w i l l ensue whether the c h i l d i s represented or not, but t h i s i s only natural given the limited number of alternative custodians. The important circumstance though, i s where, as a r e s u l t of the e f f o r t s of counsel, the c h i l d i s cor r e c t l y placed with a d i f f e r e n t custodian than i f counsel was not present. 197 Even i f t h i s happens i n a minimal number of eases, the future of the children i n those cases i s well worth the e f f o r t . In any event, in situations where the r e s u l t would have been the same without counsel, i t i s not necessarily correct to conclude that counsel has not contributed very much to the case. Assuming counsel has a c t i v e l y sought the fulfi l m e n t of the best int e r e s t s of the c h i l d , he would not only have s i m p l i f i e d the task of the judge, but he may have been successful i n reducing some of the bitterness and acrimony that i s often present i n disputes over custody. He may have even paved the way for the development of a successful p o s t - t r i a l r e l a t i o n s h i p , and hopefully his treatment of the c h i l d as an independent person with thoughts, feelings and desires worthy of consideration w i l l aid i n the child's future development. Thus, the value of independent counsel cannot be weighed i n terms of who was awarded custody and who was not. The emphasis i s on the c h i l d and not the parent. (c) What I have j u s t said also goes part of the way towards meeting not so much a c r i t i c i s m , but a proposal that would lessen the involvement of counsel for the c h i l d . The proposal i s that counsel should simply make an independent investigation, and submit a report to the court which 150 would include his own recommendations. Although t h i s 198 emphasises counsel's r o l e as amicus curiae, the r e a l d i f f i c u l t y that I see with this approach i s t h a t counsel i s being placed on the same footing as an expert i n the behavioural sciences; i n other words, th i s i s a common method u t i l i z e d to obtain the opinion of such an expert. Yet, a lawyer i s simply not an expert i n the s o c i a l sciences. His prime value i s his a b i l i t y as a negotiator i n p r e - t r i a l situations and as an advocate i n court proceedings. The problem i s highlighted when you consider that, i n effect, counsel would be submitting evidence to the court and should be subject to crossexamination. I am sure that most counsel would have great d i f f i c u l t y i n j u s t i f y i n g an opinion on the basis of being an expert i n t h i s area. In Au s t r a l i a i t was i n i t i a l l y held that the r o l e of the child's representative should be along the lines of the 151 proposal referred to above. However, the courts now accept that this does not achieve the desired r e s u l t , and expect the advocate to primarily act as any other counsel"!" I t i s c l e a r l y preferable that the preparation of any report concerning the welfare of a c h i l d be done by a pr a c t i t i o n e r of the behavioural sciences. In A u s t r a l i a , a report i s prepared by a welfare o f f i c e r attached to the Family Court, and i s accorded evidentiary status under the 199 the provisions of Section 62 (4) of the Family Law Act, 153 1975 as amended. Si m i l a r l y , i n B r i t i s h Columbia, family counsellors attached to the Un i f i e d Family Court prepare reports for various courts. Counsel representing the c h i l d can then adopt and develop so much of the report as he finds useful and i s i n accordance with his duty to the c h i l d . Of course, t h i s i s not to suggest that the person representing the c h i l d w i l l not have information and views which can supplement the report, but such information and views should be based upon d i r e c t evidence that has been presented to the court by witnesses, or, indeed, based upon the report i t s e l f . (d) Another c r i t i c i s m that i s made of the use of independent l e g a l counsel i s that there i s r e a l l y no need for such representation when you consider that the child's interests can be protected both by counsel for the respective par t i e s and by the court i t s e l f . For instance, Harry M. Fain, a former Vice-chairman of the Section of Family Law 154 of the American Bar Association, has suggested that the attorneys for the respective parties must be concerned with the best interests of the c h i l d and be ever a l e r t to protect those i n t e r e s t s . He f e l t that counsel should c l a r i f y his relationship with the c l i e n t at the outset and "stress that the best interests of the c h i l d w i l l control the ultimate decision."155 200 However, no matter how commendable such an attitude on the part of counsel may be, i t ignores the r e a l i t y of the sit u a t i o n . One only needs to ref e r back to the three 156 common types of issues that confront courts i n t h i s area to appreciate that the interests of the parents can, and often do, c o n f l i c t with the interests of the c h i l d . Accordingly, i t i s u n r e a l i s t i c to expect counsel for a party whose in t e r e s t s do not coincide with the inte r e s t s 157 of the c h i l d to give precedence to the l a t t e r . Indeed, to allow the child's interests to control his advocacy may i n i t s e l f lead to a c o n f l i c t of in t e r e s t . There may even be a breach of ethics on the part of counsel who takes such a stance. Rule (v) of the Canadian Bar Association Code of Professional Conduct provides : "The lawyer must not advise or represent both sides of a dispute and, save after adequate disclosure to and with the consent of the c l i e n t or prospective c l i e n t concerned, he should not act or continue to act i n a matter where there i s or i s l i k e l y to be a c o n f l i c t i n g i n t e r e s t . A c o n f l i c t i n g i n t e r e s t i s one which would be l i k e l y to a f f e c t adversely the judgement of the lawyer on behalf of or his l o y a l t y to a c l i e n t or prospective c l i e n t or which the lawyer might be prompted to prefer to the interests of a c l i e n t or prospective client."158 The r o l e of counsel for a party i s clear. He i s employed to obtain the best possible r e s u l t for his c l i e n t . What i s the best possible r e s u l t might involve the giving up of a short term advantage for the greater long term good of the ch i l d . But many c l i e n t s w i l l not see i t t h i s way. 201 To them the only acceptable r e s u l t i s to "win"; i . e . , to gain a legal decision which on i t s face establishes a po s i t i v e and d e f i n i t e superiority of position over the other side. To gain, i n short, "custody" as against "access" ; or, of the judge t r i e s to dampen down t h i s . contest position by awarding j o i n t custody, by claiming v i c t o r y i f care and control has been gained over the other side. Judges and lawyers often go to great lengths to discourage t h i s sort of approach, and i t i s often strongly and c o r r e c t l y put that no party ever wins a custody case and that there i s a danger that the c h i l d w i l l be the eventual loser. But the courts are dealing with ordinary human beings with ordinary human f a i l i n g s , and not r a t i o n a l angels. And a lawyer, no matter how he may s t r i v e with his c l i e n t to.persuade him i n conference to a d i f f e r e n t solution, i s ultimately bound by his c l i e n t ' s instructions. Once the avenues of settlement are closed and the lawyer i s t o l d to fi g h t , he must f i g h t : f a i r l y and e t h i c a l l y , but at the same time vigorously, conscientiously and boldly to attain the r e s u l t desired by the c l i e n t , even i f that r e s u l t does not accord with the lawyer's personal views. Accordingly, i t i s a misconception to say that counsel for the respective parties can meet the needs of the children i n a dispute concerning t h e i r custody. The adversary system 159 j u s t does not allow them to be placed i n that dilemna. 202 As regards the protection that the court can o f f e r , I have adverted on more than one occasion to the need for the court to remain aloof and not descend into the arena of the proceedings. The o b j e c t i v i t y of the arbiter should never 1 AO be placed i n question. However, I do concede that where there i s no independent representation of children, the court has the a b i l i t y to look after the interests of the children to some extent. The d i f f i c u l t y though, i s that there are severe limitations on what a court can do. For example, i t cannot act i n the manner that independent counsel does i n p r e - t r i a l situations and, most importantly, i t s t r i c t l y cannot c a l l evidence or make investigations on behalf of the c h i l d . I t i s dependent on the evidence offered by the p a r t i e s , the r e l i a b i l i t y of which i s often highly questionable. The gravity of a dispute i n a custody case cannot be resolved by blind f a i t h i n the court's a b i l i t y , a f t e r hearing the evidence presented by the parents, to determine the best interests of the c h i l d . Nb-one would have raised the issue of whether the parental testimony i s i n f a c t objective i n r e l a t i o n to the c h i l d . Thus, I do not f e e l that a court can be considered a viable substitute for independent l e g a l counsel. He i s the key to the introduction of objective evidence as to the best i n t e r e s t s of the c h i l d . 203 (e) I t i s a l l very well to talk of the need fo r independent representation of children, but the obvious question that 162 arises i s who i s going to bear the cost? The answer i s clear where there i s a system of Government-employed advocates, but i f independent representation becomes mandatory i n a l l cases, as I suggest in the following subsection, then the Government may not be too w i l l i n g to undertake the entire burden. However, to s h i f t the cost to the parties may be impractical, given the f a c t that the disintegration of a family unit stretches f i n a n c i a l resources to the l i m i t anyway. Moreover, the more highly q u a l i f i e d lawyers may not be prepared to take the r i s k of t h e i r fees remaining unpaid, with the r e s u l t that the c h i l d may not receive the s k i l f u l representation that i s required. Clearly, placing the f i n a n c i a l burden on both parties, or j u s t the unsuccessful party, would prevent some disputes from reaching the courts but, i n fact, they may beihe very ones where separate representation i s needed. Accordingly, i t seems to me that there can be no penny-pinching where the welfare of children i s concerned. The State should pick up the tab, even though t h i s means that the public i s bearing the cost of resolving what i s e s s e n t i a l l y a dispute between in d i v i d u a l s . Surely the public has a v i t a l i n t e r e s t i n ensuring that children are placed i n the s i t u a t i o n that 204 w i l l best guarantee t h e i r development as responsible members of the community. (9) MANDATORY OR DISCRETIONARY I t w i l l be apparent by now that, i n my opinion, the use of independent legal counsel for children should be mandatory i n a l l custody disputes. Indeed, I consider that children should have a statutory r i g h t to such representation. I t appears to me that there w i l l always be a need for counsel, no matter how straightforward the case may appear, and p a r t i c u l a r l y i f the adversarial nature of custody proceedings remains. In t h i s regard I have the support at l e a s t of Susan McKeown who, i n a recent paper prepared for t h e Alberta I n s t i t u t e of Law Research and Reform, recommended that an Of f i c e of Amicus Curiae be established, and that representation by t h i s O ffice be made mandatory i n custody disputes. S i m i l a r l y , the Ontario Law Reform Commission envisaged that i t ' s Law Guardian should always act i n proceedings involving an 164 evaluation of the best interests of children. 165 However, in Canada, i t i s rare to f i n d such statements, and the general attitude i s that courts should have a di s c r e t i o n to order l e g a l representation of the c h i l d where i t would be i n the child's best i n t e r e s t s . The catch i s that, i n my opinion, the best interests of the c h i l d always require 205 separate representation. The case of J v J provides a recent i l l u s t r a t i o n of th i s general attitude to c h i l d advocates. There, the subject c h i l d was not represented before the t r i a l judge and an appeal was taken on the ground that the f a i l u r e to order such representation warranted a new hearing at which the children would be represented. The argument was that the r i g h t s of children are affected by a custody order and they are e n t i t l e d to have l e g a l counsel to protect those r i g h t s . I t was "suggested that i s was time that the court should 1 deossify 1 the procedure i n custody cases and should require that i n a l l cases ... a machinery should be devised whereby the children could have their own lawyer to act for them."168 However, the appellate court rejected these submissions, . 169 saying : "We are not persuaded that the procedure of the courts requires 4 d e o s s i f i c a t i o n '. There may indeed be cases where i t i s desirable that children should have separate representation, but we do not think the case before us i s such a one. Where i t i s thought desirable, however, there i s ample scope i n the rules and practice of the courts to allow for appropriate representation to be supplied ... We do not think i t would be sound to give i l l u s t r a t i o n s of those rare cases when separate representation might be useful. The question should be resolved by a t r i a l judge i n the exercise of his dis c r e t i o n . We demur, however, f r o m i the suggestion that such separate representation should be a matter of course because we are of the view that i t i s not desirable, i n the usual case, to involve children i n choosing between parents who might exert pressure on them in making a d i f f i c u l t and traumatic selection of one against the other." 206 Unfortunately, t h i s l a t t e r comment indicates that the court was labouring under a misconception as to the r o l e that independent counsel plays i n representing children. As we have seen, counsel does far more than simply convey to the court the preference of the c h i l d i n vacuo. Indeed, he can be valuable i n protecting children from the influence of the parents. Thus, the inference that can be drawn from this case i s that one reason for the r e j e c t i o n of the mandatory use of separate representation of children was the lack of understand-170 ing of the part that counsel can play i n the proceedings. I f t h i s assumption i s correct then the concept of l e g a l representation for children w i l l continue to flounder, because u n t i l the courts themselves accept that counsel i s required i n a l l cases, i t i s u n l i k e l y that there w i l l be general acceptance 171 of the proposition. The issue, of course, can be framed i n terms of children's r i g h t s ; i . e . , should a c h i l d have a natural r i g h t to be represented where his or her interests w i l l be affected by the outcome of the proceedings. Now, expressed i n t h i s fashion, there has been almost t o t a l acceptance by Law Reform Commissions, Royal Commissions, and commentators, that t h i s i s a natural r i g h t of children. For example, the B r i t i s h 172 Columbia Royal Commission on Family and Children's Law 207 included amongst i t s 12 rig h t s of children, "the r i g h t to ... l e g a l assistance i n r e l a t i o n to a l l decisions af f e c t i n g guardianship, custody, or a determination of status." The Commission even went so far as to recommend that i f t h i s r i g h t was not complied with, then the decision would be void 173 and a new hearing required. The eminent authors, Foster and Freed, also argue that a c h i l d should have a l e g a l r i g h t 174 "to be heard and be listened to", and this r i g h t includes 175 the r i g h t to be represented i n legal proceedings. However, neither courts nor l e g i s l a t u r e s have recognised t h i s alleged basic r i g h t of children. In Mierins v Mierins the 1 78 c o r o l l a r y r e l i e f provisions of the Divorce Act, 1968, were challenged as being i n v i o l a t i o n of Sections 1 (a) and 2 (e) 179 of the Canadian B i l l of Rights. One aspect of the challenge was that because the children were not represented i n the claim for their interim maintenance, they were being denied t h e i r r i g h t s . The court disposed of t h i s argument by simply emphasising that the Divorce Act does not give any r i g h t to a c h i l d to apply for maintenance. Accordingly, i n the eyes of the court, there could be no question of a r i g h t to representation. I suggest that t h i s i s a very narrow approach indeed to the issue of separate representation of children, and i f carried to i t s l o g i c a l conclusion i t would mean that where a c h i l d had no locus standi, representation could not be provided. However, t h i s i s simply not so, and courts, i n ordering separate representation, have no regard to whether 208 the c h i l d has locus standi or not. Yet, i t does r a i s e an int e r e s t i n g question as to whether children should have the r i g h t to i n s t i t u t e proceedings for custody. Naturally, i f they were invested with t h i s r i g h t , there could be no doubt concerning t h e i r r i g h t to representation. The adversary process postulates t h a t each interested party w i l l have counsel. Do children, then, have locus standi to i n s t i t u t e proceedings for custody? I t i s quite clear that under the 1 RO Divorce Act, 1968, a c h i l d has no standing to make an 1 8 L a p plication; r e l i e f can only be sought by a parent. However, the situ a t i o n may be d i f f e r e n t under the B r i t i s h Columbia Family Relations Act, 1978. 1 8 2 Section 35 ( l ) of that Act simply says that, "(o)n application a court may order that one or more persons may exercise custody over a c h i l d or have access to the c h i l d . " There i s no statement as to who can make such an application, 183 and i t i s arguable that children have t h i s a b i l i t y . However, i t i s l i k e l y that the c h i l d w i l l s t i l l require a "next 1 R4-f r i e n d " for the purposes of making the application i t s e l f . There would seem to be no inherent reason why a c h i l d should not have the standing to i n s t i t u t e proceedings in thi s area. A f t e r a l l , i t i s the c h i l d who i s affected the most by a custody order. Moreover, i n the context of this paper, the 209 optimum l e v e l of input from the c h i l d into the decision-making process would i n f a c t be the i n s t i t u t i o n of the application for custody i t s e l f . I f a c h i l d has the standing to i n s t i t u t e proceedings, then I suggest that he or she should also be able to apply to vary a pre-existing order for custody made on the application of one of the parents. Unless the c h i l d was separately represented at the previous hearing, he or she should not be bound by what occurred there. The c h i l d would not have been a party and his or her views, thoughts and feelings may not have been aired, or i f they were, they may not have been afforded any weight. However, there i s one d i f f i c u l t y with providing children with the a b i l i t y to i n s t i t u t e proceedings. A c h i l d might make an application at a time when the family u n i t was s t i l l a viable organisation. Accordingly, unless r e s t r i c t i o n s were imposed on the circumstances i n which a c h i l d could bring an action, the concept could e a s i l y be c r i t i c i z e d as an unwarranted intrusion by the State into family relationships. In t h i s regard i t i s in t e r e s t i n g to note that i f I am correct i n suggesting that the Family Relations Act, 1978 permits a c h i l d to bring a custody s u i t , there are no limitations i n that Act as to when the action can be brought. 210 18 5 In any event, on the reasoning i n Mierins v Mierins. i t would seem arguable that a c h i l d has the r i g h t to separate representation i n proceedings taken under the Family Relations Act, 1978, a proposition which no doubt w i l l surprise a great many people.' In f a c t , there i s not even such a r i g h t i n the Australian j u r i s d i c t i o n . There, the Family Law Act, 1975 as 186 amended, permits a c h i l d to bring an application seeking an order for separate representation, but whether the application i s granted or not i s s t i l l within the discretion of the j u d g e . 1 8 7 However, i t remains to be seen what w i l l eventuate under the Family Relations Act, 1978," and, i n the meantime, courts i n Canada w i l l continue to treat the question of separate representation for children as a matter of dis c r e t i o n . (10) REPRESENTATION FOR EACH CHILD IN THE FAMILY? In the discussion thus far no d i s t i n c t i o n has been made between the sit u a t i o n where the placement of only one c h i l d i s i n dispute, and the sit u a t i o n where more than one c h i l d i s the subject of the custody proceedings. The question that arises i s whether i n the l a t t e r instance each c h i l d should have i n d i v i d u a l representation. In my opinion, i t simply depends on whether the interests of the children are opposed i n any way. I f so, then separate counsel are required. Fortunately,. 211 though, the interests of s i b l i n g s are r a r e l y opposed, and i t i s very unusual for them to be separated by the court. However, I sympathize with counsel who i s appointed to act for a large number of children, e s p e c i a l l y i f they are quite young. He w i l l undoubtedly need a l l the assistance he can f i n d . CONCLUSION The inescapable conclusion from t h i s examination of the concept of separate representation i s that independent l e g a l counsel i s a v i t a l cog i n placing children i n accordance with th e i r best i n t e r e s t s . However, i t i s important to stress that counsel for the c h i l d has a d i f f i c u l t and complex task i n presenting the wishes, thoughts and feelings of the c h i l d to the court. Children are necessarily d i f f e r e n t , and i t i s impossible to formulate a plan for counsel to follow which w i l l be applicable i n a l l cases. The point of divergence between each c h i l d i s the capacity to communicate and to reach a competent decision. In the regard, there are three basic types of children that can confront counsel; a c h i l d competent i n a l l respects, a c h i l d incompetent i n a l l respects and a c h i l d who i s capable of expressing a preference but incapable of reaching a competent decision. Counsel needs to t a i l o r his r o l e according to these d i f f e r e n t capacities; for example, i n the f i r s t category his r o l e as an adversarial advocate i s to be emphasised, whereas i n the second and t h i r d categories his 212 roles as amicus curiae and s o c i a l worker come to the fore. The unanswered question though, i s how does counsel determine the capacity of the c h i l d i n order that he can adopt the appropriate stance. Or, a l t e r n a t i v e l y , how does counsel determine when to represent the wishes of the c h i l d , and when to represent his own conception of the child's best i n t e r e s t s . The question i s similar to the one that the judge himself must address when determining what weight to accord the wishes of a c h i l d expressed during an interview. Yet, l i t t l e assistance i s gained from this experience because, of necessity, i t must be a subjective evaluation in both cases. There i s even a paucity of relevant empirical data from the behavioural 188 sciences on which to base acceptable c r i t e r i a . Of course, 189 as we have seen, Leon suggests that i t i s preferable to have rebuttable presumptions concerning capacity based on such evidence that i s available, rather than leave i t to the untrammeied discretion of counsel (or a judge) to determine how to represent a c h i l d (or what weight to accord a child's views). Nevertheless, i t i s noteworthy that he concludes with 190 the following comment : "In any given case, the a p p l i c a b i l i t y of the presumptions could be challenged. I t would be the lawyer's duty to exercise discretion and w e l l -informed judgement i n determining whether a c h i l d does not possess the presumed capacity." This i s the r e a l dilemna for counsel, and even t h i s confirms the need for separate representation i n a l l cases. A c h i l d must f a l l into one of the categories referred to above, and 213 thus, there w i l l always be a r o l e to play for independent l e g a l counsel i n order to ensure the input of the c h i l d into the decision-making process. THE UTILIZATION OF BEHAVIOURAL SCIENTISTS In recent times the pendulum has gradually swung from a concentration on the physical factors of a child's development to an emphasis on his or her psychological needs 1 This i s the great strength of the theories of Goldstein, 192 Freud and S o l n i t , which, i n effect, c a l l for the j u d i c i a l evaluation of a child's psychological best i n t e r e s t s . However, judges, lawyers and court o f f i c i a l s are generally ill-equipped to meet this need without assistance, 1 and i t i s here that behavioural s c i e n t i s t s have such an important r o l e to f u l f i l . Just as counsel for the c h i l d i s a necessary l i n k i n the chain leading from the c h i l d to the judge, the behavioural s c i e n t i s t must act as an intermediary conveying the child's psychological needs and views to both counsel and the judge. He apprises them of how the c h i l d thinks, what his or her expectations are, how he or she i s being affected by the disintegration of the family unit, and what i s i n store for the future. Indeed, i n the case of 214 Wakaluk v Wakaluk, Bayda J . considered that the procedure to be favoured for conveying the wishes of the c h i l d to the court was "(a) procedure involving a trained and competent t h i r d party, independent of the parents, charged with the r e s p o n s i b i l i t y of ascertaining the chil d ' s opinions and preferences using such techniques as are most l i k e l y to y i e l d genuine feelings and wishes, and be least harmful to the c h i l d , over such period of time as may be necessary, and thereafter reporting to the court, by giving testimony or otherwise ... "195 Of course, s o c i a l services play an important anterior r o l e as well. L i t i g a t i o n should only be considered as a l a s t r e s ort f o r the resolution of custody disputes, and alternative f a c i l i t i e s such as counselling cannot be stressed enough. Indeed, the world-wide.trend i n Family Courts i s for counselling to be provided by personnel attached to the court i t s e l f . The aim of such counselling i s to a s s i s t parents and children to adjust to changed circumstances and to work towards the most s a t i s f a c t o r y solution with the l e a s t acrimony 196 and tension as possible. However, there are disputes which cannot be resolved by t h i s i n i t i a l form of counselling and require a r b i t r a t i o n by a court. I t i s here that the second function of behavioural s c i e n t i s t s comes into play and with which t h i s section i s p r i m a r i l y concerned. However, the r o l e of the s c i e n t i s t does not cease there either. There i s a t h i r d function to be f u l f i l l e d . Following 215 the resolution of a custody dispute there i s very often a need for on-going assistance from behavioural experts, p a r t i c u l a r l y i n a supervisory capacity. The necessity for supervision can occur i n several types of cases. For instance, i t may be f e l t that the custodial parent has certain areas of weakness i n regard to his or her care of the c h i l d of which he or she should be made aware; or the parent with access may have been shown i n the course of the case to have disturbed the c h i l d by certain conduct which he may assure the court w i l l not be repeated, but which the court may f e e l should be f o r t i f i e d by observation; f i n a l l y , the court may be convinced that both parties have shown inadequacies as parents, not s u f f i c i e n t to involve the c h i l d being removed, but serious enough to cause concern; and i n those cases the judge may decide that some form of on-going supervision i s desirable. There exists a very r e a l problem though i n the re l a t i o n s h i p between the l e g a l profession and behavioural 197 s c i e n t i s t s . Lawyers have a basic d i s t r u s t of s o c i a l s c i e n t i s t s and their conclusions. For a long time i t was extremely d i f f i c u l t for lawyers to accept that such experts had any part to play i n custody disputes, and, on the other hand, s o c i a l s c i e n t i s t s were quite vocal i n their c r i t i c i s m of l e g a l theory i n this area. I t was f e l t that c h i l d placement 198 should not be the province of lawyers and the courts. 216 This antipathy led many people to doubt the e f f i c a c y of having counsellors attached to a Family Court and working cl o s e l y with the leg a l profession. Lawyers are trained i n a b a s i c a l l y adversary system, counsellors i n a b a s i c a l l y c o n c i l i a t o r y one. The mixture of brimstone and tr e a c l e seemed inherently u n l i k e l y to succeed. The experience i n Au s t r a l i a was that at the commencement of the Family Court, many lawyers were at best suspicious and at worst openly contemptuous of the counsellors attached to the Court; while many counsellors were dubious or frankly t e r r i f i e d of lawyers. There has been a gradual rapprochement though, and the remarkable r e s u l t i n the l a s t 2 years has been that some lawyers p r a c t i s i n g i n the j u r i s d i c t i o n are, i f anything, too enthusiastic about the use of behavioural s c i e n t i s t s . I t would seem that the crux of the problem i n i t i a l l y was ignorance of each other's r o l e . Thus, as each b u i l t up an understanding of the other's methods and problems the i c e began to melt and the resolution of c h i l d custody disputes became a j o i n t i n t e r d i s c i p l i n a r y e f f o r t . However, th i s does not always mean that lawyers seek the aid of counsellors for a l t r u i s t i c reasons. In most cases the motives are probably mixed. After a l l , a lawyer i s employed to obtain the best possible r e s u l t s for his c l i e n t , even i f that r e s u l t does not accord with his personal views. The conscientious family lawyer i s thus i n a d i f f i c u l t s i t u a t i o n . He may c a l l for counselling because he believes that i t w i l l 217 a s s i s t the problem even i f that involves his c l i e n t being persuaded to give up certain notional advantages. But he might also suggest counselling for baser but quite understand* able and c e r t a i n l y not unethical motives. He may f e e l that the counsellor w i l l come to the same conclusion as the c l i e n t , and, i f that be so, his case i s i n so much the stronger position i f a contest develops. He may do i t because he thinks the other side w i l l ask anyway and he should gain a t a c t i c a l advantage by being the f i r s t to ask. He may do i t simply because he believes i t pleases some judges who might otherwise ask why he did not. I t i s also i n t e r e s t i n g to consider the development and growth of the in t e r a c t i o n between judges and counsellors, again, p a r t i c u l a r l y those attached to Family Courts. I regard t h i s r e l a t i o n s h i p as an extremely important one for the input of a c h i l d into the decision-making process. I t i s obviously a j o i n t learning exercise with both sides f e e l i n g t h e i r way. Counsellors need to appreciate both the problems of judges i n exercising t h e i r very wide discretion i n thi s area, and how they can contribute to the decision-making process. Gn the other hand,' judges need to be aware of the services that counsellors can provide and d i r e c t them as to how best those services can a s s i s t . Again, i n A u s t r a l i a , as much as counsellors were dubious and f e a r f u l of the leg a l profession, they were doubly so i n respect of judges. Thus, i t i s taking 218 much longer to create a close rapport between the two, but hopefully t h i s w i l l occur i n the very near future. There i s no doubt that there has been an ambivalent 19' attitude by courts to the opinions of behavioural s c i e n t i s t s . Of course, there i s t h i s barrier existing between the two professions, but i t seems that more than that there i s a fear i n some judges of surrendering the decision-making process to the so-called experts. This attitude i s i l l u s t r a t e d by the following extract from the judgement of Lacourciere J . i n ~ . r> • 200 Gauci v Gauci : "The court w i l l , of course, t r e a t the opinion of a highly respected c h i l d p s y c h i a t r i s t with great respect: however, i t s delicate functions i n matters of t h i s kind, as well as i n other areas cannot be surrendered or delegated to any expert, however q u a l i f i e d . In the decision-making process, such opinion i s considered as a h e l p f u l factor, to be weighed and assessed along with a l l other relevant evidence. After a lengthy t r i a l , and a thorough evaluation of the issues,' the decision of the court on the child's welfare w i l l be based on more complete and r e l i a b l e information than that available to Dr. Goldstein after an hour-long interview with the p l a i n t i f f , her son and her common-law partner."201 Of course, i t might be said that Lacourciere J . legitimately disregarded the opinion of the expert because of i t s incompleteness, but I would suggest that even i f no such c r i t i c i s m of the opinion could be made, the tenor of the judgement indicates that he would not simply accept the opinion; he would s t i l l weigh and assess i t along-side a l l the • , 202 other evidence. 219 There have been even more extreme positions taken by a judge when considering the evidence of a s o c i a l s c i e n t i s t . 203 For example, i n Martiniuk v Martiniuk and Kowerchuk. there was an extensive report presented to the court by the Head of the D i v i s i o n of Psychology at U n i v e r s i t y Hospital, Saskatoon, Saskatchewan. In t h i s report the Doctor indicated that the presence of the natural father was a source of severe anxiety and emotional disturbance for a l l of the children, and that continued forced v i s i t s would only further alienate them. However, the judge disregarded this evidence e n t i r e l y and awarded access to the father, saying that the Doctor's opinion was mere speculation. Incomprehensibly though, after thus r e j e c t i n g the assistance of an eminent p s y c h i a t r i s t , the judge launched into a dissertation pointing out his own d e f i c i e n c i e s and the law's lim i t a t i o n s i n determining c h i l d placement. In u- J 204 his own words : "No book of knowledge contains clear-cut answers as to whether I have reached a correct or in-correct decision. Like so many decisions that have to be made i n matrimonial matters, knowledge of the law, li m i t e d as i t may be, i s of a secondary nature and has played l i t t l e part i n the decision arrived at. I c l i n g to no precedent nor authoritative text as supporting the r e s u l t I have arrived at. In deciding this problem, i t has been a matter, aft e r weighing and considering a l l of the evidence, of drawing on such experience, reason and common sense that I have at my command, admittedly limited i n each instance. I am mindful that i n l i g h t of the evidence of Dr. Shepel and his supporting b r i e f that perhaps there i s some r i s k involved i n deciding as I have. On balance, I have concluded that that cannot deter me from ordering as I f e e l I must do, and, of course, r e s p o n s i b i l i t y for the decision must re s t with me." 220 On the other hand, instances can be found where courts have unreservedly adopted the views of behavioural s c i e n t i s t s . In Lebre v L e b r e . 2 0 5 O'Driscoll J . said t h i s 2 0 6 : "Having seen a l l the p a r t i e s , having adjourned the matter from time to time i n order to be i n r e c e i p t of the best help I could i n order to come to a conclusion on the matter of access and custody, I unhesitatingly adopt the views of Dr. Broder."207 208 Moreover, i n the case of Re Squires Berger J . not only accepted the evidence of a p s y c h i a t r i s t and a s o c i a l worker without question, but also placed a great deal of emphasis on l i t e r a t u r e dealing with the effects of maternal deprivation. In my opinion there i s no reason why a court should not act s o l e l y on a recommendation made by a competent expert, as long as such recommendation i s soundly based. By taking t h i s course I suggest that the court i s not abdicating i t s r e s p o n s i b i l i t y at a l l . At the very least there must s t i l l be a conscious decision by the judge whether to accept the expert's opinion or not. I t must s t i l l be stacked up against a l l the other evidence given i n the case. The r e a l problem though, i n overcoming the ambivalence of the courts l i e s with the nature and qu a l i t y of expert 209 opinions proferred to them. I w i l l explore t h i s i n more depth l a t e r i n this paper, but i t i s no wonder that courts are not imbued with any degree of confidence i n p s y c h i a t r i c evidence. T y p i c a l l y , each party c a l l s a behavioural s c i e n t i s t 221 to espouse either that party's worth as a parent or that the needs of the c h i l d can best be met by granting custody to that party. The judge i s thus bombarded with evidence based on similar general p r i n c i p l e s but leading to a di f f e r e n t r e s u l t according to which party c a l l e d the "expert". Unfortunately, p s y c h i a t r i s t s and psychologists tend to act as advocates for the party c a l l i n g them and this perpetuates the adult-orientation of a custody dispute. What the court desperately 210 needs i s evidence from impartial consultants. When a matter proceeds to t r i a l a s o c i a l s c i e n t i s t can be used i n one of two basic ways, or i n a combination of both. He can be requested to provide a written report concerning the subject c h i l d , he can be requested to give o r a l evidence i n court, or he can be required to do both. I w i l l deal with each basic function i n turn. (1) WRITTEN REPORT A report can be requested either by the judge himself, by counsel for one of the parties, or by counsel for the c h i l d . I t can also take various forms. I t can be simply a gathering of information or i t can include recommendations. I t can be based s o l e l y on interviews or i t can extend to q u a l i t a t i v e 222 investigations of the child's environment. I f i t i s the former, then the interviews might only be with the c h i l d , or might extend to one or both of the parties, or even to a l l possible care-givers. I f i t i s the l a t t e r , then the investigations might only be of the child's immediate surroundings, or might extend to possible future environments and those of other care-givers. (a) FACTORS AFFECTING THE VALUE OF A REPORT ( i ) COMPLETENESS The obvious d i f f i c u l t y with so many permutations i s that the court must be circumspect i n evaluating a written report and be forever mindful of the context i n which the same was prepared. I t seems to me that unless the report i s s p e c i f i c a l l y designed to deal with one i s o l a t e d aspect of the child's s i t u a t i o n , a court should not attach a great deal of weight to any report that i s not based on at least an interview 211 with the c h i l d and both p a r t i e s . The report should attempt to create for the court a picture of the c h i l d , i t s personality, i t s fears, i t s hopes, and how i t interprets i t s own future relationships with both parents and any surrogate parents. This cannot be done unless a l l parties concerned are seen by the s o c i a l s c i e n t i s t . Unfortunately though, i t i s quite common-place for a party to produce a report from a 223 p s y c h i a t r i s t or a psychologist which recommends placement with that party, only to f i n d that no contact was made with the other side. Indeed, i t can happen that a report i s prepared without the c h i l d even being seen. The non-custodial parent may have retained a p s y c h i a t r i s t or a psychologist, but the custodial parent may refuse to see him or allow the c h i l d to be interviewed. This i s a product of the adversary system where, for the most part, i t i s the parties themselves who decide both which matters w i l l be i n dispute and what information w i l l be presented to the court i n the form of evidence to act as the f a c t u a l basis,for the court's decision. This emphasises the value of independent counsel for the c h i l d . His concern i s that the court i s apprised of a l l the relevant unbiased information necessary to reach a decision which w i l l enhance the i n t e r e s t s of the children. Thus, he should obtain a report that comprises an assessment of a l l prospective environments, and a party would be very brave indeed to refuse to see a behavioural s c i e n t i s t at the request of such counsel, or to prevent the c h i l d from being interviewed. His chances of success would then be very limited indeed. ( i i ) INDEPENDENCE Apart from t h i s need for completeness, i t i s also e s s e n t i a l for the report to a t t r a c t the greatest weight for the behavioural s c i e n t i s t to be seen to be independent from 224 any one party. Again, t h i s i s directed at the report that i s commissioned by just one party. Here i t i s only natural for the p s y c h i a t r i s t or psychologist to lean i n favour of the party retaining his services, and t h i s i s evidenced by the f a c t that a court i s often confronted with reports obtained by each party which are i n t o t a l c o n f l i c t . I t i s enough to say that reports i n t h i s category have been obtained by one party with a view to supporting the case of that p a r t i c u l a r party. This notion of independence was uppermost i n the minds of Professors Gosse and Payne i n t h e i r research paper 213 prepared for the Law Reform Commission of Canada, but i n 214 another context. They recommended that i f a s o c i a l s c i e n t i s t counsels the parties i n an attempt to bring about an agreement as to custody arrangements, but i s unsuccessful i n this regard, he should not be involved i n the preparation of a report for the court. The reason for this i s said to be that "(a) counsellor may have become overly i d e n t i f i e d with the claims of one of the parents, p a r t i c u l a r l y i f he feels that the other parent i s responsible for the f a i l u r e to achieve conciliation."215 Accordingly, he may not be able to provide a t o t a l l y unbiased opinion for the court. This has also been recognised i n the Australian j u r i s d i c t i o n . Under the Family Law Act, 1975 as amended, two types of conference can be held; one which i s s t r i c t l y a c o n f i d e n t i a l counselling session, and one which i s reportable. In the former, the counsellor cannot disclose at any l a t e r stage to the court or anyone else what has transpired. Such a condition assists the parties to f u l l disclosure and frankness, and allows the parties to look upon the counsellor as a co n f i d e n t i a l f r i e n d and not a po t e n t i a l enemy who w i l l disclose admissions. The disadvantage i s that i f the conference f a i l s , the counsellor can be of no use to the court i n subsequent proceedings, because he must remain forever s i l e n t as to what he knows as to the fa u l t s and virtues of the parties as custodians. On the other hand, a reportable conference i s j u s t that., The parties know that the counsellor may be asked subsequently what went on i n the conference and for his own observations as to the s u i t a b i l i t y of the parties as custodians. The advantage here l i e s i n the fac t that i f the parties do not come to any agreement, the counsellor can a s s i s t the court from his own assessment of the parties based upon his observations during the conference. The disadvantage i s at times to destroy that frankness and confidence i n the counsellor which might su b s t a n t i a l l y a s s i s t i n the resolution of the problems. However, i t i s quite common to combine both types of conference i n the one matter; i.e. :, i f the co n f i d e n t i a l 226 conference f a i l s , a reportable conference i s then held. But of course, d i f f e r e n t counsellors are employed at each stage i n order to ensure t o t a l independence. The attitude of the English Court of Appeal i n the case of B(M) v M(R). i s also very i n s t r u c t i v e on t h i s question of independence. There, the father obtained a report from a pe d i a t r i c i a n without consulting the mother or the court. The Court of Appeal quoted with approval the remarks of Cross J . i n the case of Re S(i n f a n t s ) . which they considered applied equally i n cases a r i s i n g within the Divorce j u r i s d i c t i o n of the court where the welfare of a c h i l d was concerned. Cross J . had said t h i s 2 2 1 : "When a c h i l d i s made a ward no important step i n the child's l i f e can be taken without the court's consent. To my mind the examination of the ward by a p s y c h i a t r i s t with a view to the report being put i n evidence i n the case i s such a step. I f both sides agree that an examination i s necessary and agree on the person or persons to conduct i t then normally no" doubt there would be no reason for the court to refuse to follow their wishes. I f they disagree, however, then i t would seem r i g h t that the o f f i c i a l s o l i c i t o r should be appointed guardian ad litem of the ward - as was done i n t h i s case -and that he should decide, subject to the views of the judge, whether or not an examination i s needed. Further, i f he decides that i t i s needed then, as i t seems to me, he should i n s t r u c t the p s y c h i a t r i s t or ps y c h i a t r i s t s i n question so as to ensure that he or they have a l l the relevant material and can see both parents. I have no doubt that the ps y c h i a t r i s t s who give evidence i n wardship cases are persons of the highest i n t e g r i t y , but i f they are instructed on behalf of one party t h e i r views are bound to be coloured to some extent by that party's views." 227 The Court of Appeal then concluded as follows : "I think i t was unfortunate, though I do not want to be unduly c r i t i c a l , that i n thi s case the ped i a t r i c i a n who was instructed only by one party, and only had advantage of hearing that party's views. When si m i l a r situations a r i s e i n the future, I would strongly urge that-parents who are in dispute with each other should at lea s t co-operate i n j o i n t l y i n s t r u c t i n g a doctor or pe d i a t r i c i a n or p s y c h i a t r i s t i n the event of i t s being thought desirable to obtain an expert opinion." Apart from the recognition of the problems associated with only one party obtaining a report, the p a r t i c u l a r aspect of this approach which i s deserving of praise i s the use made of independent counsel for the c h i l d i n orchestrating the need for, and the preparation of, a report. ( i i i ) CONFLICTING OPINIONS One unfortunate aspect that affects the weight that a court attaches to the opinion of a behavioural s c i e n t i s t i s that there can be e n t i r e l y d i f f e r e n t schools of thought as to 223 the consequences of a given s i t u a t i o n . In other words, i n the area of custody of children, i t i s common to f i n d experts reaching d i f f e r e n t conclusions as to where the best in t e r e s t s of the children l i e , a l b e i t there may be no dispute as to the basic f a c t s . Nor w i l l t h i s simply be because the s c i e n t i s t has not made a thorough investigation, or because he i s retained by one p a r t i c u l a r party. C o n f l i c t i n g opinions can 228 and do occur where the pre-conditions of completeness and independence are s a t i s f i e d . The explanation i s that current psychological theories j u s t do not allow for v a l i d and 224 r e l i a b l e predictions of human behaviour. This i s p a r t i c u l a r l y so when the c h i l d has a rela t i o n s h i p and psychological attachment to each of the 225 contesting parties. Here, as Mnookin says : "Even with the best trained experts, the choice would be based on predictions that are beyond the demonstrated capacity of any existing theory. While the psychologists and p s y c h i a t r i s t s have made substantial therapeutic contributions, they are not soothsayers capable of predicting with any degree of confidence how a c h i l d i s l i k e l y to benefit from alternative placements." Moreover, i t must be appreciated that there i s generally a marked difference of opinion amongst.scientists. as to the correctness or otherwise of the theories that form the basis of t h e i r recommendations. As examples of thi s one need look no further than to the divergence of views amongst s o c i a l s c i e n t i s t s concerning the psychoanalytical theories of . Goldstein, Freud and S o l n i t , and the supposed l i n k between parental deprivation and a child's psychological development and well-being, two matters which I have previously explored i n this paper. Thus, a judge can be placed i n a dilemna. There may 229 be two soundly-based, comprehensive, and independent reports before him, but with d i f f e r i n g recommendations, and he has to decide which one to adopt. He may seek a further expert's opinion, but there i s no guarantee that such opinion w i l l support either of those already obtained, and i t may very well compound the dilemna. In these circumstances, the judge i s simply l e f t to r e l y on his own assessment of the si t u a t i o n , assisted though, by the i n s i g h t provided by the reports into the world of the c h i l d . However, that the judge can be l e f t to his own devices i n t h i s way need not be viewed i n a negative fashion because, 226 as we have seen, one danger of the indeterminacy of the best i n t e r e s t s p r i n c i p l e i s that the decision w i l l be handed over to behavioural experts with l i t t l e or no appreciation of such p r a c t i c a l matters as the s t a b i l i t y and i n t e g r i t y of the family. Checks and balances are required when behavioural experts are involved and, consciously or not, judges and the 227 le g a l profession provide the same. Mnookin has aptly remarked that "(h)aving custody disputes determined by embracing more and more of the nice t i e s of psychological and psychiatric theories requires careful analysis of the l i m i t s of these theories, t h e i r empirical bases, and the capacity of our l e g a l system to absorb t h i s new doctrine." In t h i s l i g h t i t i s even more understandable why courts 230 have been hesitant to b l i t h e l y accept the opinion of an expert i n t h i s area. There would always be the thoughtin the back of the judge's mind that the theory on which the opinion i s based may not be one which i s t o t a l l y accepted by other 228 experts. Unfortunately though, th i s doubt w i l l continue to e x i s t u n t i l the study of a child's psychological development 299 becomes a precise science. In the words of Skolnick : " .%. there i s a tension between the tentativeness with which s c i e n t i f i c findings should be regarded and the needs of policy-makers for clear-cut p r i n c i p l e s upon which to base decisions." (b) OBTAINING A REPORT Because of the need for both completeness and independence i n a report, i t i s imperative that the judge himself i s able to order or request a report d i r e c t l y , and not be l e f t to r e l y on counsel for the parties, or even counsel for the c h i l d , to provide the same. Moreover, i t i s equally as important that the judge be able to order or request the report of his own motion, and not have to depend on an application being made.1. However, p r i o r to 1974 judges i n B r i t i s h Columbia had no d i r e c t statutory authority i n t h i s regard, and they were l e f t to develop t h e i r own practices for obtaining reports. Indeed, t h i s s i t u a t i o n even pertained i n divorce suits because 230 there were no provisions i n the Divorce Act, 1968, dealing 231 with the use of s o c i a l services i n custody disputes. The practice developed i n the Supreme Court of B r i t i s h Columbia was to r e l y on Section 63 of the Supreme Court 239 Act i n c a l l i n g for reports from the Superintendent of Child 233 Welfare. However, i t seems to me that t h i s was strain i n g the interpretation of that section to use i t for that purpose. The intendment of the section i s obviously to allow a judge to have part of the matter before him investigated by a Court-appointed arbitrator at a separate hearing, the prime example being a reference of the question of maintenance to a D i s t r i c t Registrar. The lack of d i r e c t statutory authority was p a r t i a l l y 234 remedied i n 1974 by the Un i f i e d Family Court Act. Section 9 of that Act permitted a judge to d i r e c t an investigation and report i n respect of a family matter. However, the direction could only be made on application and was only applicable i n P r o v i n c i a l Court proceedings. Nor were these defi c i e n c i e s 235 remedied by the Family Relations Act 1978, which repealed the U n i f i e d Family Court Act. Section 15 of that Act allows for an investigation and report, but again, only on application, and i n proceedings under the Act i t s e l f . Accordingly, there i s s t i l l no d i r e c t statutory power for a judge i n B r i t i s h Columbia to obtain a report on his own motion, and his power to respond to an application for a report 232 i s l imited to proceedings under the Family Relations Act, 1978. Of course though, the question of statutory authority i s purely academic as far as the Supreme Court i s concerned, because a judge of that court can always f a l l back on his inherent equitable jurisdiction to protect children. This parens patriae power would undoubtedly extend to authorizing the court to request an investigation and report concerning the subject c h i l d . Throughout t h i s confusion though, one fac t i s clear, and that i s the importance of the Superintendent of C h i l d Welfare. His practice i n supplying reports has altered over the years. I n i t i a l l y , they were only provided on the condition that the judge alone saw the i r contents, but t h i s practice was strongly 236 disapproved of i n the case of Re M o i l l i e t on the ground that the reasons for the condition did not j u s t i f y the waiving of the usual court procedures for the presentation of evidence. These reasons included the fear that s o c i a l workers could not f u l f i l t h e i r therapeutic r o l e i f i t was thought that; the report would be made public. Nevertheless, as a r e s u l t of this decision the Superintendent adopted a system of open reports. He now arranges for s o c i a l workers i n the f i e l d to gather the necessary information and forward the same to his O f f i c e . 233 There, an o f f i c i a l compiles the report which i s made available to the judge. Unfortunately, the obvious disadvantage of this practice i s that there can be no crossexamination on the report. There i s no way of testing the v a l i d i t y of the assumptions made by the persons responsible for i t s preparation. This disadvantage would indeed be troublesome i f a l l reports came from the Superintendent, but, although his r o l e must be appreciated, i t must also be noted that since the U n i f i e d Family Court commenced operation, and a l b e i t the same i s established by P r o v i n c i a l l e g i s l a t i o n , counsellors attached to that Court have responded to requests for reports i n other than P r o v i n c i a l Court matters, such as divorce s u i t s . The advantage of reports from this source i s that they are prepared by one counsellor who i s then available for crossexamination. From this discussion i t i s clear that there i s a dire need for a r a t i o n a l i s a t i o n of the provision of reports, and judges dealing with custody disputes at a l l levels should be furnished with statutory authority to order or request a report, both on t h e i r own motion and on application. This i s i n f a c t the case i n A u s t r a l i a where Section 62 (4) 239 of the Family Law Act, 1975 as amended, allows a court to adjourn the proceedings 234 " u n t i l a report has been obtained from a welfare o f f i c e r on such matters relevant to the ^ proceedings as the court considers desirable." (c) WHICH BEHAVIOURAL SCIENTISTS? The question might be raised as to whether reports should be obtained from s o c i a l s c i e n t i s t s attached to the court i t s e l f , or at least employed by the Government, or whether behavioural s c i e n t i s t s i n private practice should be retained. This i s a similar question to whether counsel for the c h i l d should be drawn from p r i v a t e practice or from Government-employed advocates. However, I do not consider that the issue i s as c r u c i a l i n this area, and as long as the author of the report has the necessary q u a l i f i c a t i o n s and i s available for crossexamination, i t w i l l only be relevant in a minimal number of situations. Crossexamination i s the key though, because i t overcomes the reason often-cited for physical segregation of inv e s t i g a t i v e services from the court, namely, the alleged lack of o b j e c t i v i t y i n reports obtained from court-attached s t a f f . The question of who would be appropriate to prepare a report can sometimes be governed by the type of report required, or by the f a c t that the c h i l d i s suffering from p a r t i c u l a r emotional problems. Thus, there may be a need for the expertise of a p s y c h i a t r i s t or psychologist, and no 2 3 5 counsellor attached to the court has the necessary q u a l i f i c a t i o n s . The p r a c t i c a l problem, of course, i s the cost factor, and this alone would require the use of court-attached s t a f f wherever possible. However, t h i s i s not meant to denigrate such s t a f f i n any way because i n fact, i n time, and with experience, they w i l l become p a r t i c u l a r l y attuned to what the judge requires i n a report. This w i l l have the advantage of avoiding unnecessary delays i n the disposition of custody matters, an advantage which i s v i t a l to the future well-being of the c h i l d . The experience i n A u s t r a l i a i s that almost a l l reports are obtained from the counsellors and welfare o f f i c e r s attached to the Family Court, and i t i s only where a c h i l d has previously been seen by a private p s y c h i a t r i s t or psychologist that a report i s sought from such an outside expert. I t might be argued that the reason for t h i s i s t h a t the court only has power to order a report from i t s own welfare offic€?rs, but i t i s p l a i n that i f the court sees the need for a report from a private expert i t has ample persuasive powers to encourage the parties to obtain such a report. However, to say that reports of private p s y c h i a t r i s t s and psychologists are r a r e l y u t i l i z e d i n Au s t r a l i a i n the resolution of custody disputes i s not to be interpreted as meaning that they take l i t t l e or no part therein. In fact, i t i s r e l a t i v e l y common for such behavioural s c i e n t i s t s to give o r a l evidence i n court, having been c a l l e d to t e s t i f y by one 236 of the par t i e s . (d) THE TYPE OF BEHAVIOURAL SCIENTIST REQUIRED At this stage i t should be clear t h a t , along with counsel for the ch i l d , behavioural s c i e n t i s t s working i n thi s area need to be a sp e c i a l breed. In p a r t i c u l a r , they need to be au f a i s with the workings of the court and the approaches of the judges. A common problem with reports presented by experts i s that they have been prepared without any regard as to how evidence i s to be presented i n court, or the l i k e l y admissability of such evidence. The rules against the use of 241 hearsay evidence are in v a r i a b l y violated, and, as we s h a l l see, t h i s creates enormous problems r e l a t i v e to the treatment of the report by the court. There i s also no opportunity to consult with the judge i n the preparation of a report. This i s unlike some areas where s o c i a l s c i e n t i s t s are usually employed. There are no "patients" or " c l i e n t s " , and t h e process does not include consultation with others i n the absence of the "patient" as to what i s best: for the welfare of that person. 237 (e) RECOMMENDATIONS OR NOT? The content of a report i s obviously an important matter, and the prime consideration here i s whether a recommendation should be made by the s o c i a l s c i e n t i s t , or whether the report should simply be a gathering of information. I suggest that a well-reasoned and soundly-based recommendation i s a d e f i n i t e advantage to a judge. Whether he accepts the recommendation i s e n t i r e l y within his dis c r e t i o n , but i t does indicate to him what the psychological i n t e r e s t s of the c h i l d demand. However, as we have seen, judges are sometimes imbued with a fear of abdicating r e s p o n s i b i l i t y to so-called "experts" and many prefer not to c a l l f or a recommendation. Indeed, when a recommendation i s forthcoming without any direction from the judge, i t seems that he goes out of his way to emphasise that the same i s only one factor 242 to be considered. This attitude can be no better i l l u s t r a t e d than by the remarks of Bouck J . i n Saxon v 243 Saxon ~ when he confirmed that Section 63 of the Supreme Court A c t 2 4 4 authorised a Court to c a l l for a report from the 245 Superintendent of C h i l d Welfare. He said t h i s : "My interpretation of the intention behind this Section i s that while a r e g i s t r a r or o f f i c i a l or sp e c i a l referee may hold an inquiry and report back to the court with a recommendation, so long as the court does not allow i t s f i n a l decision to be made by those who conducted the inquiry or made the recommendation, such a procedure i s p e r f e c t l y proper ... The report i s only one of the factors which a court may take into consideration and in doing so 238 i t i s not delegating i t s j u d i c i a l functions to those who are i n charge of i t s preparation." This approach i s obviously fueled by the f a c t that there i s a natural d i s t r u s t of any conclusions drawn by s o c i a l s c i e n t i s t s . On the other hand though, i t seems to be common for judges to accept recommendations of behavioural s c i e n t i s t s where the same are s p e c i f i c a l l y sought; at least, t h i
UBC Theses and Dissertations
Increasing the emphasis on the child in the resolution of custody disputes Strickland, Steven Andrew 1979
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