Brad and Angelina’s child testified in their divorce; why yours shouldn’t

Family Law /
A. Julia P. Tremain
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By Tony Poland, LegalMatters Staff • Brad Pitt’s much-publicized divorce with Angelina Jolie was in the news recently when their son testified against him but putting children on the witness stand may not be prudent, says Toronto family lawyer A. Julia P. Tremain.

According to media reports, Pitt’s 19-year-old son had unflattering things to say about the Oscar-winning actor during testimony in a contentious divorce and custody battle.

Such family court testimony in Canada is uncommon, says Tremain, and especially so for young children.

“In custody and access matters it is rare for a child under the age of 18 to testify,” she tells LegalMattersCanada.ca. “Judges just do not want to hear from the children. The feeling is that it puts the children squarely in the middle of a contentious situation.

“Sometimes adult children do take the stand, such as in the Brad and Angelina case. But, even then, I believe it is not a recommended course of action.”

It could work against you

Tremain, a partner with Waddell Phillips Professional Corporation, says putting children in the position of testifying can not only be stressful for them but could also work against you.

“If a child is appearing in court, they’re generally testifying in favour of one parent and against the other. It may backfire if there are allegations of influence by the other parent.

“Parents should be very cautious about even using an adult child in a dispute,” Tremain adds. “Not only could the judge see that as a potential case of influence by one parent, but it could also be viewed as poor judgment by involving the child in the conflict.”

Though some parents may not realize it, it can be obvious to the court when a child has been swayed, she says.

“Often just by the way that they use their words it can be pretty clear,” says Tremain. “There may a perfectly legitimate reasons for the child not wanting to see that parent. But the problem is the minute they testify, the perception can be that they’re not being neutral.”

The court’s underlying concern in a divorce is the best interest of the child, she says. However, when it comes to agreeing on parenting and decision-making issues some divorcing couples find themselves on a collision course.

‘Free to ask the judge to make an order’

“There are services to help the parents and the Office of the Children’s Lawyer (OCL) is one that can assist if they are really struggling to determine the correct path for their child,” Tremain says. “Parents are free to ask the judge to make an order to have their child represented by counsel or to have a clinical investigator conduct an investigation and provide a report to the court.”

According to the OCL website, the court may need “independent information about the child’s needs, wishes and interests and asks the Children’s Lawyer to help.” The office represents children under the age of 18 in cases involving custody and access and child protection, as well as in civil, and estate and trust matters.

Tremain says an independent lawyer from the OCL will meet with the child to determine their wishes and preferences after a divorce. A clinical investigator can also assist in the process. 

Any evidence is given by the investigator, sparing the child from taking the stand.

“The child still has solicitor-client privilege with the lawyer that extends to the clinical investigator,” Tremain says. “So, if the child doesn’t want something disclosed or there is something that they don’t want to share, then that doesn’t get shared.”

Clinical investigator can provide evidence

If a clinical investigator is appointed to conduct an investigation alone, there is no solicitor-client privilege attached to the discussions between the child and the clinical investigator, but the clinical investigator can provide evidence at a trial and give the reasons for the recommendations that they have made. 

She says a child’s welfare should be paramount in a divorce.

“It’s their life. The hostility can be too much for them to bear and what they want is what’s the safest,” Tremain says. “They want a way out of the conflict. At the same time, they are also entitled to have their views heard by a court.”

In the end, finding a way to resolve a contentious divorce without involving the children makes more sense, she says.

“We often say to clients, ‘Do you really want to involve your child? It would be better if the two of you can resolve it,’” she says. “Unfortunately, sometimes they cannot.”