Judicial Interviews of Children in Custody and Access Disputes: Emerging Perspectives & Unresolved Tensions

Abstract

This paper explores and evaluates the reasons for supporting and opposing judicial interviews of children in the context of child custody litigation. It then goes on to explore the conflict between providing confidentiality for children in the interview, and the need for litigants to know what was said in the interview in order to ensure a fair process. The many parameters involved in the act of interviewing children are canvassed, and comparisons are made with Ohio and other jurisdictions to understand the bigger picture. It is concluded that the Ontario judiciary is antithetical to the judicial interview, and that a deliberate policy choice must be made going forward to remain this way or to change. It is further concluded that legislative or appellant court authority is required to determine the amount of disclosure to litigants that is required when a child is interviewed. Finally, it is concluded that Canada, and indeed the entire developed world lacks guidelines and recommended best practices for judicial interviews.