Why judges need to talk to kids

Get over it. That was family law specialist Alf MamoÂ’s implicit message to judges who still refuse to speak with children ages 12 or older in custody or access matters, despite those children being willing and able to speak with the court.

Mamo, of McKenzie Lake Lawyers in London, Ont., spoke at the Annual Institute of Family Law in Ottawa, sponsored by the Carleton County Law Association. The one-day conference on April 8 also featured useful advice on advocacy from Ottawa’s four “core” Ontario Superior Court Family Branch judges, including its new administrative judge, who delivered the eye-opening news that because of the deluge of family cases, she and her colleagues often have only 7.5 minutes “per side” of a case to read and prepare for a motion, and 15 minutes per side to prepare for a settlement conference.

“ ‘Hit me with your best shotÂ’ has to be your motto,” Justice Jennifer Mackinnon advised. “Clear writing is a sign of clear thinking. What are the most essential facts to tell me that I can absorb in 15 minutes?”

In his talk, Mamo took aim at all the traditional judicial arguments against interviewing children, including the persistent notion that children are psychologically damaged by participating in a court-based decision-making process aimed at determining their best interests. 

That view is unsupported by empirical research, Mamo contends.

“We have had a lot of controversial cases recently about parental alienation and high-conflict cases, where judges have specifically refused to interview children, saying ‘Well, we know what they are going to say because they have been programmed by one side or the other,’” Mamo told The Lawyers Weekly.

“The reality is even if they have been programmed [by a parent], that is what their experience is about. The judge should know about that. The judge should know how they are feeling. And the judge should know how their decision is going to impact these children. Not ignore them.”

Mamo pointed out that the Supreme Court has ruled that “mature minors” can make life-and-death decisions about their medical treatment.

“Yet when it comes to custody and access, when it comes to finding out where the children want to live, finding out who they want to live with, what their schedule might be, we donÂ’t give them the respect to make that decision — there is something wrong with the dichotomy,” he suggested.

Mamo stressed he doesnÂ’t want children to decide questions around custody and access, but “we need to respect the integrity of the person — whether itÂ’s a life and death decision, or a decision with respect to where they are going to be living, and who they are going to be living with,” he says. “It doesnÂ’t mean we always agree with them. It doesnÂ’t mean that they make the decision. But it means they have to have input directly with the decision-maker.”

Mamo is among a growing number of lawyers, academics and judges who favour legislative changes and/or protocols to be created, in provinces such as Ontario and B.C. which donÂ’t routinely offer children the opportunity to speak with judges (in Quebec, such interviews are common).

“We have seen a true sea change in this area in the last three years — a remarkable change in attitude,” says TorontoÂ’s Martha McCarthy, co-chair of the family law practice group of OntarioÂ’s Advocate Society.

McCarthy, and Dan Goldberg on behalf of the Ontario chapter of the Association of Family and Conciliation Courts, are co-chairing a committee of lawyers, academics and mental health professionals who are writing a discussion paper exploring when judicial interviews are appropriate and what best practices might be.

“I think there is a great variety in judicial attitudes,” McCarthy says. “Some say ‘I am never going to do it.’ Some say it will always be appropriate, and sort of everything in between. And a lot of judges say ‘I need some education and training if you are going to start suggesting that this is what I should do.’ ”

McCarthy told The Lawyers Weekly the discussion paper will be finished before yearÂ’s end, with a town hall meeting slated for next March.

“The goal is to have a uniform set of practices [across the province],” she says. “To have reference material for the judiciary. To have, hopefully, a model for some kind of judicial training — and there is some discussion about whether there is a need to actually reform” OntarioÂ’s ChildrenÂ’s Law Reform Act.

The last panel of the conference offered lawyers practical tips for effective oral and written advocacy from four “core” family law judges.

Justice Mackinnon’s predecessor as administrative judge, Justice Jennifer Blishen, emphasized that good advocacy starts in your pleadings and “you can never go wrong with doing a good factum.”

As for oral advocacy, “I want to know right off the bat what you want,” she stressed.That means clearly outlining the outstanding issues. “Start with the most important,” she advised. Be creative. Be reasonable. Be thorough. Be concise.

And it is key to give alternatives to the judge, she emphasized. “Give the judge something to work with. But don’t throw the whole kitchen sink at him or her. The decision is only as effective as your submissions.”

The judges also said counsel’s behaviour in court should be impeccable. Only one counsel should be on his or her feet at a time, stipulated Justice Alan Sheffield. Added Justice Blishen, be on time and follow the rules. “We [judges] talk to each other. Watch your reputation.”

Counsel are expected to know their cases well. They should welcome questions, since questions may signal issues the judge finds confusing. If a judge is taking notes during your submission, it can be helpful to pause to let him or her finish and to make eye contact before continuing, advised Justice Blishen.