Chapter 2: A Brief History of Children’s Voices in Canada

Historically, children in Canada have not had the opportunity to participate in decisions of custody and access.Footnote 5 Until the last few decades, children were viewed as lacking the capacity to participate in family law matters, as needing protection from parental conflictFootnote 6 or from being put in the middle of their parents’ disputes.Footnote 7 It was assumed that if children could be insulated from post-separation decision-making, they would be sheltered from the turmoil of their parents’ relationship breakdown.Footnote 8 Another assumption was that parents know what is in their child’s best interestsFootnote 9 and, hence, that adults adequately represent children’s views.Footnote 10

Legal and mental health authorities characterize this debate as one between the “rights” and “protection” of children. For example, some child advocates favouring the protection of children have typically viewed childhood as a special time, associated with an inability to make significant decisions and dependency on parents or other care providers. Children’s rights advocates, in contrast, have focused on the child’s self-determination and equal treatment regardless of age.

In more recent years, some academics, judges and practising lawyers have taken the position that it is in the best interests of children that they participate in decisions that affect them and that they be listened to and taken seriously. As a Superior Court justice noted:Footnote 11

Another myth that needs to be dislodged is that harm befalls a child from participating in the decision-making process. This has often been a rationalization for leaving the child’s voice out. Some experts feel it can be harmful for the child to be left out of the decision- making process. The more paternalistic approach overlooks the reality that the child is already harmed by the turmoil in his home and the stress that litigation has brought upon everyone.

The voice of the child is now a predominant consideration when identifying the factors relevant for creating parenting plans among separating families. The social science and legal literature identify the risks and benefits of listening to the voice of the child.Footnote 12 There is a substantial body of research that indicates that children want input into family matters that affect them, that they want to be heard, they want to be made aware of the circumstances that impact them and they want to have a voice in identifying what is important to them.Footnote 13 Children also express how they wish to be engaged in processes involving them even if they are not making final decisions.Footnote 14 Moreover, listening to children’s voices is supported in the research as it contributes to parental harmony and less conflict.Footnote 15Footnote 16

The extent to which children’s voices can be heard will depend on the adults involved and whether they are willing to listen to children and able to incorporate the children’s input in post-separation decision making.Footnote 17 This means that voice of the child is impacted by different people and different processes. Practically speaking, these factors make it important for service providers and professionals to ensure that the child who voices their views has the capacity to do so and is not impaired by the influence or circumstance brought upon them by, for example, the level of parental conflict.

There is growing interest in many countries around the world to incorporate children’s views in court proceedings. This is largely due to the United Nations (UN) Convention on the Rights of the Child. Article 12 of this Convention requires that States party to the Convention:

  1. Assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
  2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.Footnote 18

Article 3 of the Convention states:

  1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

After Canada ratified the Convention in 1991,Footnote 19 the Special Joint Committee on Child Custody and Access recommended in 1998 that children in Canada have the opportunity to “be heard when parenting decisions affecting them are being made” and to “express their views about the separation or divorce to skilled professionals whose duty it would be to make those views known to any judge, assessor, or mediator making or facilitating a shared parenting determination.”Footnote 20

Canadian courts have referenced Article 12 of the Convention in their decisions dating back to the 1990s,Footnote 21 as they are working with the principle that children’s views are a vital component of the family law process when taken together with other factors. Former Justice Donna Martinson’s widely cited 2010 decision of the Supreme Court of Yukon highlights children’s views as a vital component of the decision-making process in family law:

…in my respectful view all children in Canada have legal rights to be heard in all matters affecting them, including custody cases. Decisions should not be made without ensuring that those legal rights have been considered. These legal rights are based on the United Nations Convention on the Rights of the Child and Canadian domestic law.

The Convention. .. says that children who are capable of forming their own views have the legal right to express those views in all matters affecting them, including judicial proceedings. In addition, it provides that they have the legal right to have those views given due weight in accordance with their age and maturity. There is no ambiguity in the language used. The Convention is very clear; all children have these legal rights to be heard, without discrimination. It does not make an exception for cases involving high-conflict, including those dealing with domestic violence, parental alienation.

A key premise of the legal rights to be heard found in the Convention is that hearing from children is in their best interests. Many children want to be heard and they understand the difference between having a say and making the decision. Hearing from them can lead to better decisions that have a greater chance of success. Not hearing from them can have short and long term adverse consequences for them. While concerns are raised by some, they can be dealt with within the flexible legal framework found in the Convention.Footnote 22

The court then goes on to list all the manners in which children should participate in their own legal proceedings, and where the participation must be meaningful, which include that children should:

  1. be informed, at the beginning of the process, of their legal rights to be heard;
  2. be given the opportunity to fully participate early and throughout the process, including being involved in judicial family case conferences, settlement conferences, and court hearings or trials;
  3. have a say in the manner in which they participate so that they do so in a way that works effectively for them;
  4. have their views considered in a substantive way; and
  5. be informed of both the result reached and the way in which their views have been considered.Footnote 23

Article 12 of the UN Convention on the Rights of the Child indicates that the views of the child shall be given due weight in accordance with the age and maturity of the child, including the opportunity to be heard in any judicial proceeding. The expectation is limited to children who are capable of forming their own views and does not provide directives on how best to assess children’s capacity to have their voices heard. For example, given that children mature and develop at different rates, the Convention does not specify an age at which children attain capacity, nor does the Convention define “capacity.”

The General Comment No.12 of the UN Committee on the Rights of the Child anticipates that children will have a sufficient understanding of the issues on which they are giving their views, but not a comprehensive understanding.Footnote 24 As the complexities of the issues surrounding a child’s input into decisions increase, the demand for maturity increases proportionately. By way of example, given that many professionals have difficulty fully understanding the complexities of high conflict families, it is naive to think that a child or even an adolescent will.

The question of whether children should be given a voice in custody and access disputes has been answered by most in the affirmative. However, the question has now transformed to how that participation should take place.Footnote 25 The Convention does not specify how children’s voices should be heard. From research and practical perspectives, there remains debate in the literature about the strengths and limitations of the various approaches for facilitating children’s voices within family justice processes.

The discussion above documents the historical shift in the role and presence of the voice of the child in family law. The role of the Convention and Canadian case law demonstrates that children’s voices should be considered in family law matters that affect them. One of the most pressing issues on the voice of the child in family law is simply how best to hear from children. In what follows, the report examines the different ways in which the court can hear a child’s views and preferences, and explores the merits and shortcomings of each approach.