FAMILY LAW BLOG

When Do Children Testify?

Recently, California Judge John Ouderkirk awarded Brad Pitt increased parenting time of his five children with Angelina Jolie. Ms. Jolie is allegedly unhappy with the situation and in particular objects to Judge Ouderkirk not allowing the children to testify.

Many of our clients ask us if their children can or will be called to testify in their family law matter. The answer: usually not.

Canadian courts are eager to avoid putting minor children between their parents and involving them in family law disputes. Allowing a child to testify on behalf of a parent can create an opportunity for the other parent to cross-examine them. It intimately involves the child in the conflict and makes them an adversary of one of their parents. It is rarely in the best interest of a child to put them in such a position.

In S(ME) v S(DA), a 2001 decision of the Alberta Court of Queen’s Bench, Justice Lee wrote that “even in the event the court determined that some or all of the children are competent to give evidence, either sworn or unsworn, the court must still determine whether to admit such evidence under its inherent parens patriae jurisdiction”. Parens Patriae jurisdiction –put simply – is the inherent jurisdiction of the court to act in the best interests of a child.

Justice Lee went on to hold that “the court can refuse to accept evidence from the children whether or not they are deemed to be competent to give evidence under s. 16 of the Canada Evidence Act. The cases that have considered this issue overwhelmingly favour minimal or no involvement by the children in the dispute between the parties and further consider evidence by the children to be the least satisfactory method of providing reliable information.”

Not every case has gone this way (see Vasquez v To, 2005 ABQB 808, for a limited counterexample). But Justice Lee’s summary of the case law at the time largely applies today (see DM v JR, 2020 ABPC 184). 

This is not to say that the views of children are irrelevant to parenting arrangements. They are important and sometimes determinative. However, the courts have created methods of obtaining evidence and opinion from children that avoid them testifying under oath in an adversarial process. These options include but are not limited to: 

• Appointing counsel for the children who can present the children’s views to the court. 
• Involving a parenting expert such as child psychologists to ascertain the wishes of the child.
• Involving a parenting expert to investigate and report on the well-being of the child, the competence and/or danger presented by one or more parents, and/or the degree to which a child is being alienated or coached.
• A private interview of the children by a Justice.

If you have any questions, please reach out. Our experienced team would be happy to assist!