With the enactment of the Family Law Act in March 2013, the courts must now consider the views of a child when determining where a child will live. An independent lawyer or child specialist can be retained to interview the child and to present the child’s views to the court.
Sometimes however a child’s evidence is relevant to other issues between spouses and one spouse’s lawyer may consider having a child swear an affidavit.
The Canada Evidence Act, sections 16 and 16.1 state:
16.
(1) If a proposed witness is a person of fourteen years of age or older whose mental capacity is challenged, the court shall, before permitting the person to give evidence, conduct an inquiry to determine
(a) whether the person understands the nature of an oath or a solemn affirmation; and
(b) whether the person is able to communicate the evidence.
(2) A person referred to in subsection (1) who understands the nature of an oath or a solemn affirmation and is able to communicate the evidence shall testify under oath or solemn affirmation.
(3) A person referred to in subsection (1) who does not understand the nature of an oath or a solemn affirmation but is able to communicate the evidence may, notwithstanding any provision of any Act requiring an oath or a solemn affirmation, testify on promising to tell the truth.
(4) A person referred to in subsection (1) who neither understands the nature of an oath or a solemn affirmation nor is able to communicate the evidence shall not testify.
16.1
(1) A person under fourteen years of age is presumed to have the capacity to testify.
(2) A proposed witness under fourteen years of age shall not take an oath or make a solemn affirmation despite a provision of any Act that requires an oath or a solemn affirmation.
(3) The evidence of a proposed witness under fourteen years of age shall be received if they are able to understand and respond to questions.
(6) The court shall, before permitting a proposed witness under fourteen years of age to give evidence, require them to promise to tell the truth.
(8) For greater certainty, if the evidence of a witness under fourteen years of age is received by the court, it shall have the same effect as if it were taken under oath.
In summary, a child who is 14 years or older can swear an affidavit and provide evidence to the court. If the child is younger than 14, they can swear an affidavit provided they are able to understand and answer questions truthfully. The child’s ability to do this can be challenged by opposing council in court.
The British Columbia Evidence Act, section 5 states:
5
(1) If a proposed witness in a proceeding is a person under 14 years of age or a person whose mental capacity is challenged, the judge, justice or other presiding officer must, before permitting the person to give evidence, conduct an inquiry to determine whether
(a) the person understands the nature of an oath or a solemn affirmation, and
(b) the person is able to communicate the evidence.
(2) Subject to section 20 (3), a person referred to in subsection (1) of this section who understands the nature of an oath or a solemn affirmation and is able to communicate the evidence must testify under oath or solemn affirmation.
(3) A person referred to in subsection (1) who does not understand the nature of an oath or a solemn affirmation but is able to communicate the evidence may testify on promising to tell the truth.
(4) A person referred to in subsection (1) who neither understands the nature of an oath or a solemn affirmation nor is able to communicate the evidence must not testify.
(5) A party who challenges the mental capacity of a proposed witness who has reached 14 years of age has the burden of satisfying the judge, justice or other presiding officer that there is an issue as to the capacity of the proposed witness to testify under an oath or a solemn affirmation.
There is a presumption that a child is competent to give evidence unless their mental capacity is challenged.
One of the problems with a child swearing an affidavit is that child is then involved in their parents’ litigation and the child becomes “caught in the middle” of the dispute. It encourages the child to take a side and take a position to assist one of their parents to the detriment of the other parent. Not only has the child taken the side of one parent over the other, there is now a permanent written record of the child’s evidence. This may damage the child’s relationship with one of their parents years after the dispute is resolved.
Once a child swears an affidavit the child could be forced to attend court to be cross-examined by the other parent’s lawyer on the contents of the affidavit which further involves the child in the dispute.
Because of these concerns it is important for lawyers to avoid obtaining affidavits from children whenever possible. If the affidavit if necessary the child should be sent to an independent counsel to prepare the affidavit.
