COURT FILE NO.: 3006/13
DATE: 2014-01-09
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
WAQAR ZAIDI
Applicant
– and –
SAIREENA QIZILBASH
Respondent
Brahm D. Siegel and Glen Schwartz, Counsel for the Applicant
W. Ross Milliken, Counsel for the Respondent
W. Todd Moore, Counsel for the Office of the Children’s Lawyer
HEARD: November 18, 19, 20, 21, 22, 25, 26, & 27 2013
REASONS FOR JUDGMENT
GRAY J.
[1] This case is a tragedy for all concerned. It is about the status of three children, aged 15, 13 and 8. To say it is high conflict would be an understatement.
[2] The two older children, both boys, refuse to see their mother. The youngest child, a girl, rarely sees her father. Allegations of parental alienation are made by both parties.
[3] At this point, the parties have agreed to have me deal with only the issues of custody and access. Other issues will be dealt with later. I am not seized of those issues.
Background
[4] I heard evidence over several days. It is not possible to summarize all the evidence. I will highlight the salient points.
[5] The parties have had a rather tumultuous relationship.
[6] They were married on March 5, 1989. They separated in 1993, and were divorced in 1994. Since then, the parties have separated and reconciled on more than one occasion.
[7] The parties have three children:
a) Kamran, a son, born September 22, 1998;
b) Yusuf, a son, born January 4, 2001;
c) Samyra, a daughter, born November 5, 2005.
[8] All three children are bright and intelligent. Yusuf, in particular, has done very well in school.
[9] Until recently, there has been no evidence that any of the children were mistreated. However, at around the time of the latest separation, allegations of sexual abuse began to emerge.
[10] The parties hired a housekeeper, sometimes referred to as a nanny, for nine years, ending in 2009. Her name is Conchito Santos. She testified in these proceedings.
[11] While the parties lived together, there were many conflicts. The respondent alleged that the applicant had affairs. These were denied by the applicant. The applicant alleged that the respondent’s mother interfered with the family. He alleged that she was controlling and loud.
[12] The respondent took all three children to Pakistan in October 2008, and did not return until March, 2009. The applicant alleged that this was to punish him.
[13] The parties separated in March, 2009, and commenced living together again in May, 2011. They stayed together until May, 2013 when they separated for the last time.
[14] After the parties separated, the applicant went to live with his sister, who has a large house in Mississauga. The two boys went with him and their daughter remained with the respondent.
[15] Many of the boys’ belongings were retained by the respondent, and she refused to give them to the boys. While this was denied by the respondent until recently. During argument of the case she agreed to return a large number of items to the boys.
[16] On May 3, 2013, the respondent left the matrimonial home and went to the police station. The applicant also attended. There was no suggestion at that point that there was any child abuse or sexual abuse.
[17] On May 24, 2013, the applicant received a telephone call from Constable Stuart MacDonald of the Halton Regional Police. He was asked to come downtown and bring Kamran. The applicant went to the police station with Kamran and Yusuf.
[18] Constable MacDonald spoke to the applicant and told him that there had been a sexual abuse allegation respecting his daughter, Samyra. As a result the police would have to interview Kamran. It was also alleged that the applicant had sexually abused Samyra.
[19] The applicant was interviewed by Constable MacDonald and Lisa Potts of the Halton Children’s Aid Society. He was advised that the respondent had alleged that the applicant had touched Samyra with his penis while he was lying in bed.
[20] The applicant testified that he never knowingly touched Samyra with his penis. He testified that Samyra would sometimes come into her parents’ bedroom while they were asleep, and she would lie in between them. The applicant said that while it was theoretically possible that his penis might have touch Samyra while he was asleep, if that indeed happened he did not know it.
[21] The applicant testified that he was advised that the alleged sexual touching occurred some two years earlier.
[22] The applicant testified that Kamran was interviewed by the police. The applicant was present during the interview. Kamran was told that it was alleged that Samyra had touched his exposed penis. Kamran told the police that all he could recall was that a door had been open on one occasion when he took a shower.
[23] Kamran could not believe that Samyra would say this about him. He said “why would mommy do this?”
[24] The applicant denied that he had ever touched any of the children in a sexual manner or with sexual intent. He testified that the respondent had never made an allegation of this sort to him directly.
[25] Lisa Potts, a child protection worker with the Halton Children’s Aid Society, testified.
[26] Ms. Potts testified that on May 24, 2013, the respondent made an allegation that her daughter had been sexually abused by the applicant. She participated in interviews of the children, and both parties. She testified that Samyra was interviewed at the police station.
[27] Ms. Potts testified that it seemed obvious that Samyra had been coached by her mother. Ms. Potts testified that Samyra told her that her mother had suggested that she “say bad things about her dad – and have a sad face”. Ms. Potts testified that Samyra did not have any fear of her father, and said she missed him. She also said she was not afraid of her brother. Ms. Potts became convinced that there was no sexual abuse, although it was possible that there was some kind of contact in the matrimonial bed. However, if it happened, there was no sexual intent.
[28] Ms. Potts participated in the interview of Kamran, in the applicant’s presence. She testified that Kamran advised that if Samyra touched his penis, it was unintentional and there was no sexual intent. Ms. Potts considered Kamran to be an honest young boy. He was upset at the allegation.
[29] Ms. Potts interviewed Yusuf. Yusuf was unaware of the allegations regarding his father and Kamran.
[30] Ms. Potts noted that the respondent had been at the police station on May 3, 2013, but did not report any of the allegations at that time.
[31] Ms. Potts had no protection concerns with respect to either parent.
[32] On cross-examination, Ms. Potts acknowledged that the respondent appeared to believe that some kind of sexual abuse had occurred. She was upset at the suggestion that she had coached her daughter.
[33] Constable Stuart MacDonald testified. He testified that he interviewed Samyra on May 24, 2013. Samyra related an incident that had apparently occurred one or two years earlier. She said she felt her father’s “ding ding” in her butt. She said it happened two times. She said she told her mother about it at the time.
[34] Constable MacDonald was of the view that there was no sexual assault. At most, there was incidental contact. He said Samyra told him that her mother and grandmother advised her to “tell the bad things that father did” and “make a sad face so that the police will believe you”.
[35] Constable MacDonald testified that there were certain features that persuaded him that there was no sexual assault. Samyra had told him that she had advised her mother immediately about the alleged sexual incidents. The respondent, however, said that she learned of these incidents in April, 2013. Constable MacDonald was concerned about the fact that the respondent had attended at the police station on May 3, 2013, but said nothing about these incidents. He also noted that Samyra was not in fear of the applicant, and he was concerned about the respondent’s lack of immediate concern.
[36] On cross-examination, Constable MacDonald acknowledged that if the respondent truly believed that there had been a sexual assault on her child, she had a duty to report it.
[37] Dr. Helen Bai testified. She has been the pediatrician for the children since their birth.
[38] Dr. Bai testified that the respondent made an appointment to see her in May, 2013. The appointment was with the respondent and Samyra. Until then, there had been no complaint about any abuse or potential abuse to Samyra.
[39] In the appointment in May, 2013, the respondent related that there had been some sexual touching by the applicant some two years earlier. Dr. Bai was not persuaded that there was any sexual abuse. She was aware of her obligation to report any suspected sexual abuse to the Children’s Aid Society, but she did not do so. There was no hard evidence of any abuse, and it was not verified.
[40] Dr. Bai met the respondent and Samyra again on June 14, 2013. At that time, Samyra confirmed her mother’s version of events. The respondent told Dr. Bai that she wanted to her to speak to Samyra. She said Dr. Bai had to save Samyra from harm.
[41] Samyra told Dr. Bai that everything she told the police was true. Her mother did not ask her to say these things. She said she looked sad because she was sad.
[42] Dr. Bai called the Children’s Aid Society on June 18 and 19, 2013. She spoke to Lisa Potts on August 23, 2013, who advised Dr. Bai that the matter was by then out of her hands.
[43] Jean Sawaya testified. He is a friend of the applicant. He described the applicant as a great parent, very attentive to his children, and he loves and protects them. As far as he is concerned they are in no danger in the applicant’s presence.
[44] Since the separation, Samyra has lived with the respondent and the boys have lived with the applicant. The respondent has not seen the boys at all since the separation, and Samyra has seen the applicant on some Saturdays for about two hours on each occasion. There is no other contact.
[45] Both parents described their children in similar terms.
[46] Kamran is an extroverted young man, interested in sports. He displays confidence, is a risk taker, and loves cars. He wants to do engineering and design. He is interested in video games.
[47] Yusuf is an intellectual. He is mature beyond his years. He is aware of the environment, and loves skiing. He is interested on what is going in the world. He loves chess, he is bright, and he is an A student.
[48] Samyra is independent and articulate. She is confident, and somewhat of a tomboy. She likes Barbie dolls.
[49] According to the applicant, Samyra behaves differently depending on who she is with. If the respondent is present, Samyra will not hug her father. She looks to her mother for confirmation. If her mother is not there, her personality changes. She goes back to the way she used to be with her father.
[50] According to the applicant, the respondent has told false stories to Samyra about the applicant. For example, the respondent advised Samyra that the applicant pushed the respondent down the stairs and injured her.
[51] The applicant testified that since May of 2013, he has become closer to the boys. While the boys love their mother, they do not wish to have anything to do with her until she changes her behaviour. The applicant testified that in February or March, 2013, the boys came to him and advised that they were aware that the marriage would not work out. They told him that they wished to come with their father after any separation.
[52] While the respondent has alleged that the applicant has brainwashed the boys, the applicant says this is impossible. They are old enough that they cannot be brainwashed.
[53] The applicant testified that he and the boys now live in his sister’s home, which is located in an affluent neighbourhood. The home is between 9,000 and 10,000 square feet. There would be ample room for Samyra if she were to live there.
[54] The applicant testified that he and the respondent disagree on the schooling for the children. The applicant wants Kamran to go to Lorne Park Secondary School, and Yusuf to attend at an advanced program at Hillcrest. He wants his daughter to attend a religious school, Walil-Ul-Asr.
[55] The applicant noted that since the separation Samyra has been absent from school approximately 30 per cent of the time. This is unacceptable.
[56] On cross-examination, the applicant acknowledged that up to May, 2013, the respondent was a good mother. The children were well fed and well dressed. The respondent attended parent-teacher meetings at school, and assisted Samyra with her school work.
[57] The applicant denied that there had been any physical abuse in the relationship. He denied that he tried to smother the respondent in 1999, or push her head under water in 2001.
[58] The applicant testified that the boys want certain conditions to be met before they will meet with the respondent. They want the respondent to disavow her lies including that he is a member of Al Qaeda; that he is the devil; and he has sex with his sister. She must stop acting “crazy”, and pressuring the kids.
[59] Conchito Santos testified. She was a housekeeper/nanny for the family for approximately eight and a half years. The children would call her “Chin” and “Annie”. Ms. Santos described the children’s relationship with the applicant. She described it as a beautiful relationship. She said the applicant was close with his children and dedicated. He was very involved with them.
[60] By contrast, Ms. Santos testified that while the respondent cared for the children, the same degree of dedication was not there. The respondent tended to leave most things involving the children to Ms. Santos.
[61] Ms. Santos testified that the relationship between the parties changed over the years. After they moved into the matrimonial home, there were more arguments. She never observed any physical contact and as far as she knew the children never saw any physical contact, nor did they say they did. She said the respondent never complained that she had been assaulted by the applicant. She never saw the applicant strike any of the children.
[62] Ms. Santos testified that the applicant was involved in assisting the children with their homework. He would spend time with them on weekends. His parenting style was very dedicated.
[63] While the respondent clearly loves the children, her parenting style was not as dedicated. She was always out and she did not seem as concerned about the children.
[64] Ms. Santos testified that she left the family in February, 2009. She said it was a hard decision, but she left so that the respondent would have to be more involved with the children.
[65] Saireena Qizilbash, the respondent, testified.
[66] She testified that she was fourteen years of age when she left Pakistan. The parties married in 1989, and came to Canada. They divorced in 1994, because the applicant had an affair. They reconciled in 1997.
[67] The respondent testified that Ms. Santos was hired to do housework. It was the respondent’s job to raise the children, not Ms. Santos. The respondent took the position that Ms. Santos was essentially a spy for the applicant.
[68] The respondent testified that the applicant tried to push her head under water on one occasion while she was having a bath. She also testified that in 2005, the applicant struck her after she had contact with the woman with whom the applicant was having an affair. She did not go to the police.
[69] The respondent testified that on another occasion the applicant forced the respondent to perform fellatio on him.
[70] The respondent testified that sometimes when she and the applicant were sleeping in bed, Samyra would come to their bed. She testified that in 2011, Samyra asked her to tell the applicant to put some clothes on when he is sleeping. In January, 2012, Samyra said she did not like to sleep in the same bed as her father.
[71] The respondent testified that in the summer of 2013, Samyra said she did not want to sleep in the same bed as her father because “queer things” happen.
[72] The respondent testified that in March, 2013, Samyra again said she did not want to sleep in the same bed as her father. When asked why, she said her father’s “ding ding” touches her “bum bum” all the time. The respondent said she thought it might have been accidental.
[73] The respondent testified about the events on May 3, 2013. She testified that the applicant had come home and the respondent was in bed with Samyra. The applicant came towards them and he pulled the respondent’s arm and hair. The respondent called the police. Samyra said “don’t leave me alone with Baba”.
[74] The respondent went to the police station with Samyra. She told the police she could not take any more, and she wanted the applicant to leave the house. She did not want the applicant charged, and she understood the police would talk to him.
[75] The respondent testified that she went to her mother’s home at about 11:30 p.m. At about 1:00 a.m. Samyra spoke to her mother while she was putting Samyra to sleep. Samyra said she had something to say “about Baba”. She said to her mother “will you get mad at me?” She said “never leave me alone with Baba”. “Every time you leave me alone with him, he touches me.” When asked where, she said “on my bum bum and on my vagina”.
[76] The respondent testified that she did not go to the police because she was not one hundred per cent certain that the allegations were true.
[77] The respondent testified that she made an appointment with Dr. Bai, and encouraged Dr. Bai to find out the truth from Samyra.
[78] The respondent testified that she went to Kamran’s school on May 24, 2013. She testified that Kamran hugged her and said “I missed you – Baba won’t let me talk to you”. The respondent spoke to the vice principal of the school and told him about the alleged sexual abuse. She was told as a result it would be necessary to advise the CAS. The CAS was called in the respondent’s presence, and she was told to come to the police station and bring Samyra.
[79] The respondent testified that she picked Samyra up from school and took her to the police station. She said she spoke to Samyra and said she had to tell the CAS and the police everything about Baba’s “ding ding”. She was told to be “truthful” and “tell everything bad that Baba did”. She should “make a very serious face”.
[80] The respondent insisted that she sometimes believed the allegations were true and sometimes not. She said it might have been an accident, and she did not know if Samyra was in any danger.
[81] The respondent testified that she has not seen her sons since the separation, and there has been no contact. She has tried to write and received no response.
[82] Since the separation, the children have been engaged in counselling with Ms. Lourdes Geraldo. The cost has been split between the parties. It is understood that the counselling is confidential.
[83] On one occasion, it was anticipated that the boys would visit their mother in the presence of Ms. Geraldo. However, shortly before the visit the boys announced that they would not attend.
[84] Nazish Qizilbash testified. She is the sister-in-law of the respondent. She hardly knows the applicant. Before 2005, she saw him rarely. Since 2005, she saw him less. In the last three years she has hardly seen him.
[85] Ms. Qizilbash described the relationship between the respondent and her children as being open and friendly. Samyra is approximately the same age as her daughter, and she sees her five to seven days per week.
[86] Ms. Qizilbash testified on October 5, 2013, she attended at the applicant’s sister’s home with the respondent to pick up Samyra. Samyra had been due back home with her mother at about 12:00 noon and she was not yet back. When at the applicant’s sister’s home, she overheard a very heated argument.
[87] Roy Reid testified. He was appointed as a clinical assist by the Office of the Children’s Lawyer. He is a social worker. He has been involved with the Office of the Children’s Lawyer for approximately ten years, and he has been in the field for about 20 years. He has a Master of Social Work.
[88] Mr. Reid became involved in this case in July, 2013. He interviewed the parties, the children and various “collaterals”.
[89] In my judgment, Mr. Reid’s investigation was very thorough.
[90] There were no observation visits. Mr. Reid described the views and preferences of the children.
[91] With respect to Kamran and Yusuf, their views and preferences are consistent. They wish to be with their father, and to have no access with their mother. If the Court were to order otherwise, they would not be inclined to obey. They would be more inclined if it were the applicant’s wish they meet with their mother.
[92] There would be certain conditions that would have to be met before they would meet with their mother. She would have to acknowledge that her behaviour had been poor. She would have to acknowledge that she has lied. She would need to meet certain ground rules. She would have to agree that she would not discuss the conflict between the parties. She would have to agree not to attempt to brainwash them.
[93] They want to visit with their sister for longer than they are currently able to do.
[94] The boys have a very high respect for their father, and they trust him. Yusuf described his father as his “go-to person”.
[95] Samyra described the conflict between the parties as being driven by her father. She has very positive views about her mother. She regards her father as “darkness” and her mother as “sunshine”. She has nothing positive to say about her father. She said her father scares her and beats her with a white stick. She said her father has physically abused her mother. She said her father pushed her mother down and injured her rib.
[96] Samyra said she does not want to be with her father, except perhaps during recreational activities. She wants to live with her mother and she does not want to be apart from her for one night. She is happier with her mother. If she is forced to be with her father, she will run away.
[97] Samyra is sad that her brothers have chosen to live with their father. She wants them to be with their mother. She does not want her father to be part of their lives at all. She is consistent that she does not want access with her father, and if it were forced upon her she would run away.
[98] Samyra is not particularly positive about the short weekend visits with her father and her brothers. She participates in them to help her mother. She is not particularly anxious that they continue.
[99] Samyra advised that she told her mother that her father had touched her on her bottom. She said her father did it on purpose while they were in bed.
[100] On cross-examination, Mr. Reid acknowledged that it is more likely that the views and preferences of the boys are accurate because of their age. It is less likely that the views and preferences of Samyra are accurate because of her relatively young age.
[101] Mr. Reid also acknowledged that without their father’s leadership, reunification between the boys and their mother is unlikely to occur. He also acknowledged that because of their respect for their father, reunification can probably occur with baby steps.
[102] It should be noted that after argument of the case, the parties agreed to certain terms. It was agreed that Kamran would continue to attend Lorne Park High School, Yusuf would attend Hillcrest School commencing January 1, 2014, and Samyra would continue to attend Walil-Ul-Asr school until further order of the Court. It was also agreed that the respondent would give the boys a large number of items, including clothing, winter and ski gear, toy cars, video games and electronics, board games, reference books, computer monitors, and contents of dresser drawers. This was after the respondent had insisted that she had already given these items to the boys.
Submissions
[103] Counsel for the applicant submits that his client should be awarded sole custody of all three children. He submits that access to the boys by the respondent should be in accordance with the boys’ wishes. He submits that Samyra should live with each party on a week-about basis.
[104] Counsel for the applicant submits that counselling should be made available for the children on the same basis as is the case currently. That is, Ms. Lourdes Geraldo should be made available as a counsellor for the children, and for the parents if they so choose, and the cost should be split between the parties.
[105] Counsel for the applicant submits that it is clear that the respondent has been instrumental in alienating Samyra from her father. She has allowed her anger at the applicant to cause her to behave irrationally.
[106] Specifically, counsel submits that the allegations respecting sexual abuse by the applicant to Samyra have been fomented by the respondent. Clearly, Samyra has been coached by the respondent.
[107] While the allegations apparently were first made some two years before they were reported to the police, the applicant was never confronted with the allegations by the respondent. When the respondent attended at the police station on May 3, 2013 she did not advise the police about the allegations. Just before the allegations were conveyed to the police and the Children’s Aid Society on May 24, 2013, Samyra was told to tell the police about “the bad things” Daddy did and have “a sad face”. It is clear, counsel submits, that the respondent attempted, unsuccessfully, to co-opt Dr. Bai in making the allegations.
[108] To compound matters, the respondent was instrumental in having allegations of a sexual nature made by Samyra against her brother Kamran.
[109] Counsel submits that the allegations are false. There was no history of any abuse. At most there may have been some inadvertent contact with no sexual intent.
[110] Counsel submits that virtually all of Samyra’s professed reluctance to see her father is a product of coaching by the respondent.
[111] As for the boys, counsel submits that it is impossible to accept that they have been brainwashed by their father. They are intelligent young men and their views have been consistent. They are unhappy with their mother’s behaviour, and do not wish to meet with her until she changes her behaviour. She must acknowledge that she was wrong, and cease lying about their father.
[112] Counsel for the applicant submits that the respondent was not a credible witness. He notes that there were no allegations of any abuse to the police prior to May 24, 2013. Ms. Santos, the nanny, observed no abuse. She lived with the parties from about 2000 until about 2009.
[113] Counsel for the respondent now asserts that it is acceptable that the applicant have sole custody of the boys. However, he submits that the respondent should have sole custody of Samyra.
[114] Counsel for the respondent submits that the applicant should have access to Samyra through counselling sessions with Lourdes Geraldo for a period of time, and then on a more regular basis. He submits that the same principle should apply regarding access of the respondent to the boys. That is, access should be through regularly scheduled counselling sessions with Lourdes Geraldo, and then on a more regular basis.
[115] Counsel for the respondent submits that access visits as between the children and their parents should be equal and reciprocal.
[116] Counsel for the respondent submits that his client had every reason to believe that sexual contact had occurred between the applicant and Samyra. Samyra had clearly relayed to her mother that something had happened. As parents will almost invariably do, the respondent refused to believe that the applicant was capable of such conduct. However, Samyra persisted in her allegations, and the respondent ultimately had no choice but to advise the proper authorities.
[117] Counsel for the respondent submits that his client is not in a position to know, with any certainty, whether the allegations are accurate or not. However, it is reasonable for her to take the position that if there is any chance that the allegations are accurate, the applicant’s access to his daughter should be severely restricted.
[118] For the same reason, it is understandable that Samyra does not wish to associate with her father, and it is not reasonable to assume that the respondent is responsible for Samyra’s opposition to seeing her father.
[119] Counsel for the respondent submits that it is important that there be reciprocity and equality in any arrangements for access to the children. To do it any other way would simply send the wrong message to the children.
[120] Counsel for the Office of the Children’s Lawyer supports the views and preferences of the children. However, he acknowledges that the views and preferences of Samyra are less certain because of her age.
[121] Counsel for the OCL submits that the boys are mature and articulate, and have offered significant reasons for their preference not to see their mother. The OCL submits that a court order compelling the boys to see their mother would not necessarily guarantee access visits or change their views about their mother. Their father is a strong influential figure, and it is likely that there needs to be some encouragement from their father to see their mother.
[122] While Samyra is equally clear and consistent in her views and preferences, there is doubt about the independence of her views. She has likely been influenced by her mother. She is strongly bonded with her mother.
[123] The OCL submits that it is important that the children maintain a positive relationship with both parents, and with their siblings.
[124] The OCL submits that Samyra’s parenting time with her father should be structured, increased in a thoughtful way, and include a therapeutic component.
Analysis
[125] This case is not governed by the Divorce Act. The parties were divorced many years ago, and the children were born after they were divorced. The case is governed by provincial legislation, and particularly the Children’s Law Reform Act.
[126] Unlike the Divorce Act, the Children’s Law Reform Act does not contain a specific provision that mandates a preference for maximum contact with both parents. However, notwithstanding such omission, it is clear that maximum contact with both parents, provided it is in the best interests of the child, is an implied principle underlying the Children’s Law Reform Act: see T.L.W. v. J.T.W. (2011), 10 R.F.L. (7th) 443 (Ont. S.C.J.), at para. 41; R.W. v. I.R.L. (2006), 2006 919 (ON SC), 27 R.F.L. (6th) 312 (Ont. S.C.J.), at para. 11; and F.I. v. S.P.P. (2011), 14 R.F.L. (7th) 193 (Ont. C.J.), at para. 120.
[127] An express principle underlying the Children’s Law Reform Act is the requirement that the Court take into consideration the views and preferences of a child. Section 64 of the Act provides as follows:
- (1) In considering an application under this Part, a court where possible shall take into consideration the views and preferences of the child to the extent that the child is able to express them.
(2) The court may interview the child to determine the views and preferences of the child.
(3) The interview shall be recorded.
(4) The child is entitled to be advised by and to have his or her counsel, if any, present during the interview.
[128] This provision is consistent with international law. Article 12 of the Convention on the Rights of the Child provides as follows:
Article 12
States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being give due weight in accordance with the age and maturity of the child.
For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.
[129] While s. 64 of the Children’s Law Reform Act requires that the Court, where possible, take into account the views and preferences of a child, it is less than specific as to how those views and preferences are to be communicated. Only one possible method is referred to, but it is not the exclusive method.
[130] The views and preferences of a child may be ascertained in one of the following ways:
a) By the child giving evidence;
b) By the child being interviewed by the judge;
c) Through hearsay.
[131] The first option is not practical. To thrust the child into the middle of the dispute, and force the child to be examined and cross-examined about his or her views and preferences regarding his or her parents is fraught with danger and difficulty. As stated by Weiler J.A. for the majority of the Court of Appeal in Woodhouse v. Woodhouse, 1996 902 (ON CA), [1996] O.J. No. 1975 (C.A.), at para. 45, “To expect children to come to court to express their views as witnesses puts them in an extremely difficult emotional situation.”
[132] The second option, while expressly provided for in section 64 of the Act, has its own difficulties and dangers. If the parties or their counsel are not present during the interview there are natural justice concerns. Many judges are not skilled at conducting interviews of this sort.
[133] The third option, while perhaps on shaky legal ground, is probably the most sensible, particularly if the views and preferences are relayed through a professional, such as a clinical investigator or clinical assist retained by the Office of the Children’s Lawyer.
[134] At least one court has attempted to rationalize the reception of hearsay evidence from