Parents in a custody battle usually are faced with issue of how best to present to the court what they view as the child’s needs or the child’s views and preferences without appearing that they are influencing the child’s decision one or way or another.
Your family lawyer can assist you make a decision as to whether your case needs the involvement of Office of the Children’s lawyer (OCL) to be appointed in order to effectively present the child’s needs, views and preferences. The most common situation is when a child is about 12 years old and wishes a change in the existing access or custody arrangement. Another situation is when you have minor children with special needs where it is important for a fact finder through OCL to communicate with the experts related to the child’ special needs in order to effectively present independent information to the court. Other times are when there are allegations of abuse relating to the child.
Your lawyer can bring a motion asking a judge to make an order for appointment of OCL. Other times, without the parties asking a judge for the order, a judge can decide by herself or himself to make such an order. When a judge is of the opinion that independent legal representation is required or the judge requires further information concerning the child’s needs in a custody dispute, the general practice is to make an order of referral to the Office of the Children’s lawyer requesting the Children’s lawyer to provide such services under section 112 of the Courts of Justice Act as he or she deems appropriate. Note that the order to OCL is a request which means OCL can decline to act despite a judge’s order.
It should be noted that a report from OCL is not an expert report rather it is in the form a fact finding mission which is to be differentiated from a section 30 of the Children’s Law Reform (CLRA) report which is an expert clinical report.
Jane Mukongolo is a family lawyer practising family law in Toronto. You may access more information relating to her practise at www.jnmlaw.com