Court File and Hearing Information
Court File No.: FC-20-997-1
Motion Heard: 2025-06-17
Parties
Applicant: Laura Stephanie Zychla
Respondent: Ryan Chuhaniuk
Before
Associate Justice Kamal
Counsel:
Laura Pilon, for the Applicant
Alexei Durgali, for the Respondent
Endorsement
Introduction
The Applicant seeks an order that the parties retain Ms. Chantal Bourgois to provide a simple Voice of the Child report indicating the child’s views and preferences for which high school he will attend in September 2025. The Applicant seeks such an order pursuant to section 30 of the Children’s Law Reform Act.
The Respondent requests that the motion be dismissed, or in the alternative, the Respondent does not agree that the Report should be conducted by Chantal Bourgeois, or that the Respondent should pay for 50% of the report. The Respondent submits that in the event a Voice of the Child assessment is ordered, the Report be completed by someone other than Chantal Bourgeois, such as Sandra Kapasky.
Generally speaking, a Voice of the Child report is a report intended to provide information about a child’s views and preferences in order to help resolve parenting disputes. A Voice of the Child report’s practical benefit is giving a child a chance to be heard. The report is typically short, as well as the time from the engagement of the reporter to the delivery of a report is very brief.
Voice of the Child reports should not be used by a parent to manipulate a child to parrot what a parent wants.
Issues Raised
At the outset of the motion, I raised two issues:
- The jurisdiction of an Associate Justice to make such an Order; and
- The evidence required to make such a determination.
Jurisdiction of an Associate Justice to Make an Order for a Voice of the Child Report
- The motion was argued as an opposed procedural motion. I agree that such a motion is a procedural motion, see Canepa v. Canepa, 2018 ONSC 5154. Justice Kiteley concluded that the subject matter of such a motion was procedural and uncomplicated and that the Court could order a VOC report absent the parties’ consent pursuant to Rule 20.1(3) of the Family Law Rules, O. Reg. 114/99 (the “Rules”). This rule provides that:
20.1 (3) The court may, on motion or on its own initiative, appoint one or more independent experts to inquire into and report on any question of fact or opinion relevant to an issue in a case. O. Reg. 383/11, s. 6.
The power to grant such an order must be conferred on an Associate Justice pursuant to Rule 42. This Rule authorized Associate Judges the jurisdiction to hear motions and conduct conferences in certain family law proceedings. With respect to motions, Rule 42(8) provides that Family Case Managers may only make certain specified orders.
Rule 42(8) does not grant the authority to an Associate Judge to make an order pursuant to section 30 of the Children’s Law Reform Act or Rule 20.1 of the Family Law Rules.
As Master Kaufman (as he then was) stated, Rule 20.1 is separate from Rule 20, and concerns a different subject matter (Experts vs. Questioning a witness and disclosure), see Walker v. Walker, 2019 ONSC 1889.
Under subrule 42(16) an Associate Judge may, at any time, order that a matter assigned to him or her be adjourned and sent to a judge.
Motions for Voice of the Child reports, even if opposed, are procedural motions that can be dealt with in writing, see Byers v. Byers, 2023 ONSC 297, para 9 and Canepa v. Canepa, 2018 ONSC 5154.
Accordingly, I will order that the Applicant’s motion be referred to a judge to be dealt with in writing, once the evidentiary deficiencies below are addressed.
The Evidence Required for an Order for a Voice of the Child Report
Section 30(1) of the Children’s Law Reform Act states that the court may appoint a person who has technical or professional skill to assess and report to the court on the needs of the child and the ability and willingness of the parties or any of them to satisfy the needs of the child.
Section 30(3) of the Children’s Law Reform Act states that the court shall, if possible, appoint a person agreed upon by the parties, but if the parties do not agree the court shall choose and appoint the person.
Section 30(4) states that the court shall not appoint a person under subsection (1) unless the person has consented to make the assessment and to report to the court within the period of time specified by the court.
The evidence admitted by the Applicant includes the consent and availability of Ms. Chantal Bourgois.
As mentioned, the Respondent does not agree that a Voice of the Child Report should be ordered, or in the event a Voice of the Child assessment is ordered, the Respondent requests that the Report be completed by someone other than Chantal Bourgeois, such as Sandra Kapasky. The Respondent has not provided any evidence related to Sandra Kapasky’s qualification, availability, or consent.
The Applicant’s position with respect to Sandra Kapasky is unknown.
When a court is considering making an order for a Voice of the Child report, the following is a non-exhaustive list of factors the court typically considers:
a) The paramount consideration is always the best interest of the child. The court must decide whether hearing the child's views through a report will assist in making a decision that supports their welfare and development, or harm the child. The decision must be in the best interest of the child. The child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained, is specifically outlined in the best interest factors outlined in section 24(3) of the Children’s Law Reform Act.
b) The Court must be guided by children’s rights to participate in decisions that affect them. I note that the UN Convention on the Rights of the Child states that the child who is capable of forming his or her own views has the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child. 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. As this Court stated in Yenovkian v. Gulian, 2019 ONSC 7279, it is important to recognize the agency of children, and where possible, to hear their voice before making decisions that have a profound effect on the life of a child.
c) The Court will consider the child’s age, maturity, and ability to express their views meaningfully.
d) The Court will consider how the issues to be decided will impact the child. The greater the impact on the child, the greater the need for their views and preferences to be considered.
e) The Court will consider whether the child’s participation will cause them any harm. This must be balanced with the child’s right to participate in decisions that affect them.
f) The Court will consider whether the child is willing or able to express their views voluntarily and without undue influence from others.
g) The Court will consider the qualifications, experience, and impartiality of the professional preparing the report.
h) The Court will consider whether there are other, less formal, ways to receive the child’s views. One consideration is whether the child’s views and preferences are already available through a neutral person.
i) The Court will consider the child’s cultural background, language, and any special needs to ensure their views are accurately and fairly represented.
j) The Court will consider whether ordering the report will delay proceedings or whether there are sufficient resources to complete the report in a timely and effective manner. This must be proportionate to the issues to be decided and the impact on the child.
- The parties have addressed some of these considerations in their affidavits, but more information may be helpful to the judge who will decide this motion.
Order
Accordingly, I order the following:
The Applicant and the Respondent may file supplementary evidence by Friday, June 20, 2025.
The motion shall then be referred to a judge to be dealt with in writing on an expedited basis.
Associate Justice Kamal
DATE: June 17, 2025