Law Times

Law Times • February 7, 2011 FOCUS PAGE 15 Ontario judges reluctant to interview kids Continued from page 14 representation, is the lawyer to advocate the best interests position, as the children's law- yer does, or relay the child's instructions and wishes? Bala says that's a legitimate and im- portant concern. "There needs to be a discussion in Ontario whether a child who is older and has capacity is entitled to say, 'I don't want a lawyer who is not advocating on my behalf.'" Mamo would like to see an independent person represent the child who's more than just a parrot and instead addresses best interests. "In so many cas- es now, the parents are self-rep- resented," he says. "The judge could use some help sorting it all out." Wise considers children hav- ing their own legal representa- tion as an extremely delicate matter for the courts and the system at large. "Children can't pay their own lawyers. If you set up a legal aid system to han- dle that, you would just trans- fer some of the financial stress from one part of the system to another. I'm not sure there'd be any net gain from that." Judicial interviews are an- other option that Wise sees as equally delicate. "I think if it ends up that a third party needs to be talking to the children, say there are competing experts giving their own impressions and the judge needs an opportunity to assess for him or herself, it could be done," he says. "It would de- pend on the age of the children and their ability to cope with that situation." Family lawyer Tom MacLen- nan of Toronto asks if judges should be doing interviews if they don't have any interview- ing techniques. "In fact, they need more than just interview- ing techniques. They need psy- chology, sociology, and if the child is from a particular back- ground, some anthropology. In Ontario, judges clearly don't have the experience. Most have never interviewed a child and for those that have, it's a very rare event." Bala, along with Rachel Birnbaum and Francine Cyr, recently completed two re- search projects examining ju- dicial interviews and their ef- fectiveness. In their first study, they interviewed 16 judges in Ohio, where judicial inter- views are statutorily mandat- ed, and 30 judges in Ontario, where s. 64 of the Children's Law Reform Act gives judges a wide latitude to decide wheth- er to interview children. Ohio judges generally found it to be a useful way to get to know the child rather than an exercise in fact-finding. They tended to conduct interviews as an infor- mal conversation and weren't bothered much by procedural niceties. Ontario judges had a marked reluctance to conduct interviews with children, viewing it as a Childview_LT_Feb7_11.indd 1 www.lawtimesnews.com 2/1/11 10:40:08 AM last resort and generally endors- ing the view that it's preferable for mental-health professionals to interview the child. This study was followed by interviews with 29 children who had been interviewed by judges or represented by chil- dren's lawyers and/or mental health professionals in Ontario and Ohio. The findings, as pre- sented at the Ontario Bar As- sociation Institute last week, showed that none reported any negative effects from the inter- views with professionals. The children were unanimous that it was important to be heard but said they didn't want to make the decision. Bala, Birnbaum, and Cyr concluded that judicial inter- views should occur more often in Ontario but say there should be policies in place to assist them to carry out this "unique and challenging role." "I do support increased funding to the [Office of the Children's Lawyer] so it can do more assessments," Bala says. "In the absence of that, if the judge wants to have that information available, a judi- cial interview would be better than nothing." LT congratulates the 116 new lawyers who were Elianeth Alicea Valentin Andrea Sofia Anderson Tarek Bahgat AB Badawy Narine Bagdassarian Shelly Sadaf Banihashemi Vikaas Bansal called to the bar on Jan. 28. A ceremony to mark the occasion was held at Roy Thomson Hall in Toronto. 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