Office of the Children’s Lawyer

Under the Courts of Justice Act, the Office of the Children’s Lawyer is authorized to conduct investigations and prepare reports, called Custody and Access reports.  The investigations are conducted by social workers, called clinical investigators. The Act states that if there is a question concerning custody of, or access to a child who is part of a case under the federal Divorce Act or the Ontario Children’s Law Reform Act, the Children’s Lawyer can order an investigation to be made. After the investigation, the clinical investigator will make a report with recommendations to the court on all matters concerning child custody and access, as well as child support and education issues.

What is a child Custody and Access Report?

A Custody and Access Report focuses on the interests of the children based on their needs and wishes and the family’s ability to meet those needs. It provides a picture of the family history, current situation and parenting plans for the future. It may also provide recommendations to help the family make decisions about ongoing parenting plans.

The Office of the Children’s Lawyer will review each court ordered request for the appointment of the Children’s Lawyer in custody and access cases and decide whether to provide social services.

If a decision is made to provide services, the clinical investigator collects and evaluates information to help understand what parenting arrangement would be best for the children. In doing so, the investigator will speak with family members and others who have been involved with the family. Investigators also assist families to look at various options that will meet the needs of the children and the family. Investigators may prepare reports for the court that include recommendations that also take into consideration both the best interests and the wishes of the children.

Circumstances where The Children’s Lawyer will not provide Custody and Access services

In certain circumstances, the Office may decide not to provide services. These include the following eight situations:

1. The child resides outside Ontario;
2. The child and/or either parent or party does not reside where the action is being conducted;
3. There is an outstanding or anticipated order for assessment or mediation, or an assessment or mediation is pending;
4. An assessment has been completed about custody and access in the year proceeding the request;
5. A review of the case history indicates that there have been multiple assessments or protracted litigation with little possibility of resolution;
6. There are serious mental health concerns with respect to either parent and/or child, and a mental health assessment has not been undertaken or completed;
7. Support and/or property issues are the primary concerns and the custody and access arrangements have been relatively stable for an appreciable period; or
8. Where one or both parties allege abuse and/or neglect and the local Children’s Aid Society is investigating or should be asked under the Child, Youth and Family Services Act to investigate such allegations.

The Custody and Access Report process

Once the Office of the Children’s Lawyer agrees to carry out a report, the family and their lawyer will receive a letter with the name of the clinical investigator who will contact them.

The investigator will arrange to meet the family. Some interviews may be at the investigator’s office and some may be at the family’s home. The children will be observed with family members and, if appropriate, may be interviewed privately. The investigator will determine the number and location of interviews.

The investigator will ask the family to sign release forms that will be sent to “collateral sources.” Collateral sources may include the children’s school, daycare provider, doctor, community agencies, police and counsellors. The forms allow these sources to share information with the investigator that will assist with the evaluation.

During the process, the parties involved in the custody and access case may decide to come to an arrangement concerning the children. The investigator may help to arrange a settlement or set a disclosure meeting that may include the parties involved as well as their lawyers.

If a report is completed, it is filed with the court and becomes part of the court record. Copies of the report are sent to the lawyers. Each party has the right to send a formal dispute of the report to both the Office of the Children’s Lawyer and the court.

The children’s interviews

Investigators who prepare reports regularly, interview and observe children as part of the process. It is best if this happens in a comfortable and familiar environment, as the investigator understands that the children may experience many different feelings concerning the separation and family situation. The investigator may have the children participate in a number of activities. Depending on the ages of the children, this can include structured play, drawing pictures, or telling stories to talk about their feelings.

Parents often want to know if the investigator will ask the children where they want to live. Although the children’s thoughts, feelings and experiences are important and will be taken into consideration, the investigator will not ask the children to choose between parents.

Helpful hints

There are some things that parents can do that may help make the Custody and Access Report process less stressful for both themselves and the children. These include:

• Writing their questions down and then writing down the investigator’s answers;
• Preparing school, health and other information that might be helpful, such as names and telephone numbers;
• Asking for information about reading material, separation and divorce workshops, counselling, and other resources; and
• Telling the children about the process. Investigators can suggest approaches for different age levels.

For more information about the Custody and Access Report process, contact the Office of the Children’s Lawyer, or visit the Ministry of the Attorney General website.

For legal advice or assistance, contact a lawyer.

								
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