Judicial Interviews in Custody Cases

On some occasions in custody cases, lawyers are appointed for the children to advise the court what the child’s wishes are. In other instances, the services of a parenting expert are used to provide the court with a fulsome report as to what custody arrangement is in the best interests of the children. In Eustace v. Eustace, Justice Emery of the Ontario Superior Court took a different tack. Eustace dealt with the custody of a 13 year old boy. The child had his own counsel and a comprehensive assessment had been completed in advance of the Trial. During the Trial, at the suggestion of Justice Emery, the parents removed themselves from the courtroom so that the child could speak candidly. The child then asked that the lawyers (even his own) also leave the courtroom. The child was then “interviewed” by Justice Emery with the conversation being transcribed. The transcript was then provided to the parents. The child’s evidence to the Court was different from what was in the comprehensive report that had been provided.

In his decision, Justice Emery acknowledged that judges do not delegate their decision making to assessors. He further held that the assessors report was only one factor that he must consider. The decision noted that the judge also took into account what the child had to say during his Judicial Interview with Justice Emery. However, the Court was clear that even that was only one factor to be considered, with a whole host of others, in determining which custody arrangement was in the child’s best interests. In his review of this case Phil Epstein, KC suggested: “For those judges who have not considered a judicial interview or how one should be conducted, they may find this an interesting template.” However, Mr. Epstein also cautions: “The risk, of course, in this kind of interview is that a one-off interview, in what can only be a stressful setting, may not provide accurate information and may not be presented in a way that was absent parental influence.”