Article 12 of the Convention on the Rights of the Child and Children’s Participatory Rights in Canada
III. Review of Children’s Participatory Rights in Canada
This section of the paper reviews children’s participation rights in Canada in the legal contexts which have most frequently implicated these rights. The right of children to be heard in matters affecting them has been recognized in legislation, and by judicial and administrative decision-makers. This section considers how children’s voices are heard in different legal contexts and across Canadian jurisdictions. Special attention is directed to the interpretation and application of Article 12 by decision-makers in the domestic context. This section is divided into legal areas where the importance of children’s views has been recognized: family disputes after parental separation, child protection, health, adoption, juvenile justice, child victims and witnesses, immigration and refugee claims, and education proceedings.
A. Family Disputes After Separation
One area in which the right of children to be heard has been consistently recognized is in disputes about child custody and access following parental separation. Footnote 10 In Canada, legal rules governing the rights of separated parents depend on whether the parents were married. For married parents seeking a divorce, the relevant statute is the federal Divorce Act. For unmarried parents, provincial or territorial legislation governs.
The “Best Interests of the Child” Include the Child’s “Views and Preferences”
The majority of separating or divorcing parents agree on custody and access arrangements without involvement of a judge, whether by direct informal discussion between the parents, negotiation between lawyers, or through mediation. Whether or not children in such families are consulted on these matters depends on the attitude of the parents, and the approach of professionals, such as lawyers and mediators, who may be assisting them. In cases where a judge is asked to make a custody or access determination, the primary factor – whether under the Divorce Act or provincial or territorial legislation – is the “best interests” of the child. Canadian law has long recognized that children’s views are relevant to assessing their “best interests.” In most provinces and territories, judges are explicitly directed by legislation to consider the child’s views and preferences in determining a child’s “best interests,” on which a custody or access order will be based. Footnote 11 For example, s. 37(2)(b) of British Columbia’s Family Law Act instructs that in determining the best interests of a child for the purposes of a parenting or contact order, the court must consider all the of the child’s needs and circumstances, including “the child’s views, unless it would be inappropriate to consider them.” Footnote 12 In a few jurisdictions, legislation is even more directive in requiring courts to consider the child’s views and preferences when making an order for custody or access. In Prince Edward Island, for example, s. 8(1) of the Custody Jurisdiction and Enforcement Act provides that in any application under the statute, “a court where possible shall take into consideration the views and preferences of the child to the extent that the child is able to express them.” Footnote 13
The Divorce Act stands alone in not explicitly providing for a child’s views and preferences to be heard in making a custody or access order in a child’s best interests. The Act provides, in s. 16(8), that the “best interests” of the child are to be the only consideration in making a custody or access award. Judges have, however, consistently interpreted “best interests” in this provision to include consideration of the child’s views and preferences. Footnote 14
Children’s Views and Preferences Not Necessarily Determinative
While children’s views and preferences are an important factor in determining which custody and access arrangement will be in a child’s best interests, they are not the only factor. Nor are they necessarily determinative. The weight accorded to a child’s wishes depends on factors such as age, maturity, and motivation. Footnote 15 Justice R. James Williams of the Nova Scotia Supreme Court, Family Division, suggests a number of factors judges should consider when assessing the significance of a child’s wishes:
- whether both parents are able to provide adequate care [i.e. if there is no real choice about care arrangements, the child’s wishes may not be that significant];
- how clear and unambivalent the wishes are;
- how informed the expression is;
- the age of the child;
- the maturity level;
- the strength of the wish;
- the length of time the preference has been expressed for;
- the influence of the parent(s) on the expressed wish or preference;
- the overall context; and
- the circumstances of the preference from the child’s point of view.Footnote 16
Although custody and access legislation does not place age restrictions on the ability of a child to express his or her wishes, Canadian courts have found it unreasonable to expect a child 5 years of age or younger to articulate views and preferences.Footnote 17 As discussed below, courts have also recognized an upper age limit, after which failing to follow a child’s wishes may be futile.
The independence of a child’s views and preferences is also an issue for judges making custody or access orders. A child may be unduly influenced into rejecting one parent due to the alienating conduct of the other parent. Children may also express views and preferences that conflict with their best interests. In Jespersen v. Jespersen,Footnote 18 a 12 year-old boy expressed a desire to live with his father. The boy struggled in school and his mother played a key role in making sure he applied himself to school, which caused emotional tension for the boy. The trial judge found that this tension informed the child’s stated desire to live with his father, and ordered custody to remain with the mother despite the boy’s views. For younger children, judges are more likely to disregard a child’s wishes if they do not conform to his or her best interests.
Once children reach 12 or 13, they may be more likely to “vote with their feet,” and many separated parents will effectively allow children of this age or older to have a significant or determinative role in their living arrangements. Further, judges recognize that it can be difficult to enforce a custody or access order that is contrary to the child’s wishes. As observed by the British Columbia Court of Appeal in O’Connell v. McIndoe: “In order for custody orders relating to children in their teens to be practical, they must reasonably conform with the wishes of the child.”Footnote 19 However, in cases where the courts believe that there has been parental alienation or manipulation of a child’s views, they may be prepared to make orders for children up to the age of 15 years or older, with the intent of promoting the child’s interests and changing the attitude and behaviour of the alienating parent.Footnote 20
Ways of Hearing Children in Custody and Access Proceedings
There are a number of ways a court may receive evidence about the views and preferences of children in custody and access proceedings. Bala and Hebert provide the following list:
- Hearsay evidence, related by a witness, including a parent, social worker or teacher;
- A video-recording or audiotape of an interview with a child;
- Written statements from a child in the form of a letter or affidavit;
- A report or the testimony of a social worker or a mental health professional as part of an assessment of the case;
- A report from a lawyer, social worker or psychologist who has conducted an interview (or more than one interview) and prepared a Views of the Child Report;
- Counsel for a child;
- Testimony by the child in court; and
- A meeting or interview in the judge’s chambers.Footnote 21
Some of these methods for introducing children’s evidence are provided for by statute, while others have been defined by case law. The following sections of this paper summarize the law on the admission of children’s evidence in custody and access proceedings across Canada. Some of these methods – such as judicial interviews – are more controversial than others. While the issues respecting the various methods for introducing children’s evidence will be identified, a thorough analysis of each method is beyond the scope of this paper.
Finally, it is important to note that while every jurisdiction in Canada provides for children’s views and preferences to be heard in custody and access proceedings, the reality is that children are not always heard. A 2010 study of reported Canadian decisions arising from custody and access litigation found that only 45% mentioned evidence respecting the views and preferences of the children in any form.Footnote 22 Further, there are significant issues related to how parents, their lawyers and mediators learn about the views of children in cases that are not resolved by judges.
In every Canadian province and territory, a judge hearing a custody and access dispute is empowered to make an order requesting the involvement of an independent third party, typically a social worker or mental health professional, to assess the case and provide a report to the court. In some areas, such as New Brunswick, jurisdiction to order an assessment is found in the provincial or territorial custody and access legislation. In others, authority flows from a separate statute, usually one governing court procedure. The actual legislation under which a judge may order an assessment depends on the level of court. For example, in Manitoba, provincial courts find jurisdiction under the Family Maintenance Act whereas superior courts rely the Court of Queen’s Bench Act. Superior courts may also order assessments pursuant to its inherent parens patriae jurisdiction.Footnote 23
Interviews with children and observation of parent-child interactions are an important part of the assessment process. Some statutes specifically identify ascertaining the child’s views and preferences as one of the objectives of an assessment. British Columbia’s Family Law Act, for example, provides that a judge can request an assessor to report on “the views of a child.”Footnote 24 In Alberta, superior courts may order a “Parenting Assessment” pursuant to Practice Note 8, which can address the wishes of the children.Footnote 25 Even in provinces and territories where the legislation is not specific, a child’s views and preferences, where ascertainable by the mental health professional, will invariably be included in the assessment report.
Assessments usually include comments by the assessor about the child and the child’s views and preferences (assuming the child is old enough to communicate.) Jurisdictions differ, however, on whether assessment reports should contain recommendations on what parenting arrangement would be in the best interests of the child. Section 29(6) of the Northwest Territories’ Children’s Law Act directs that an assessor “shall not make any recommendation as to whom custody or access should be granted.”Footnote 26 In most provinces, however, whether by legislation or practice, it is common for assessment reports to include recommendations. For example, in Ontario, the Courts of Justice Act directs that reports based on “investigations” by a representative of the Office of the Children’s Lawyer “may… make recommendations to the court on all matters concerning custody of or access to the child”.Footnote 27 Similarly, in Alberta, court-appointed assessors – “Parenting Experts” – are expected to “assist the Court by providing an objective, impartial recommendation on the parenting and custody arrangement that is in the children’s best interest.”Footnote 28
Assessments are a common and important way for children’s voices to be indirectly heard in custody and access proceedings. However, assessments are expensive, and can delay resolution of proceedings. In some provinces, like Alberta, Manitoba and Ontario, the government may pay for a court-ordered assessment, at least for low income litigants. However, government resources are limited, and only higher income litigants can afford an assessment. In Ontario, the Office of the Children’s Lawyer (OCL) does not charge for assessments (called clinical investigations), but for budgetary reasons declines to become involved in a significant portion of the cases in which a court makes an order requesting involvement of the OCL. Thus, in many cases, unless parents are able and willing to pay for an assessment, it is not provided. And the reality is that most parents cannot afford the cost of these reports.
Counsel for the Child
A second method for introducing children’s views and preferences into a custody and access proceeding is through the appointment of a lawyer for the child. Authority to appoint child’s counsel may flow from provincial or territorial custody and access legislation,Footnote 29 or from another statute.Footnote 30 Where there is no statutory authority, superior courts can rely on its inherent parens patriae power to appoint a lawyer for the child.Footnote 31
A few jurisdictions provide government-funded representation for children in custody and access disputes. In Ontario, which has the most comprehensive program for child representation in Canada, judicial requests for child representation are made to the Office of the Children’s Lawyer, which, in custody and access cases, decides whether to assign counsel, undertake a clinical investigation, both or neither. Government-funded counsel for children is also provided for under the Yukon’s Children’s Law ActFootnote 32 and in the Northwest Territories. In some provinces, including Alberta and Quebec, it is not uncommon for a lawyer to be appointed for the child and be paid for by Legal Aid.Footnote 33 In other provinces, however, such as Newfoundland and Labrador, Legal Aid will not provide counsel for a child in cases involving separated parents.Footnote 34
Most statutes do not provide guidance as to when counsel for children should be appointed. British Columbia’s Family Law Act and the Yukon’s Children’s Act are exceptions. British Columbia’s Act provides that the court may appoint a lawyer to represent the interests of a child where:
- the degree of conflict between the parties is so severe that it
- it is necessary to protect the best interests of the child.Footnote 35
In the Yukon, the decision to appoint government-funded counsel for children in custody and access proceedings lies with the Office of the Public Guardian and Trustee.Footnote 36 The Children’s Law Act provides that in determining whether separate representation for children is required, the Public Guardian must consider:
- the ability of the child to comprehend the proceeding,
- whether there exists and if so the nature of any conflict between the interests of the child and the interest of any party to the proceeding, and
- whether the parties to the proceeding will put or are putting before the judge or court the relevant evidence in respect of the interests of the child that can reasonably be adduced.Footnote 37
In jurisdictions where the legislation is silent as to when counsel for a child should be appointed, judges have considered factors similar to those enumerated in British Columbia’s and the Yukon’s Acts. Courts have held that child representation should only be ordered where: (1) it is in the child’s best interests;Footnote 38 (2) the parents cannot adequately represent the child’s interests;Footnote 39 and (3) the child can instruct counsel.Footnote 40 Following these guidelines, appellate courts have determined that child representation should not ordinarily be appointed in custody and access cases, and some decisions suggest that this should be “rare.” The Alberta Court of Appeal, for example, has held that in custody and access proceedings the presumption should be against appointing a lawyer for the child. Footnote 41
There is controversy in Canada about the appropriate role of lawyers for children in custody and access disputes. Lawyers may act in the role of a traditional advocate, taking instructions from their child client and advancing the child’s position. Counsel may also act as litigation guardian, advocating a position that corresponds to what counsel has determined to be in the child’s best interests. Finally, child’s counsel may take on the role of amicus curiae, taking no position and simply placing evidence of the child’s views and preferences before the court. The role of the lawyer varies by jurisdiction. In Quebec, the Court of Appeal has ruled that lawyers are to take on the role of advocate on behalf of children involved in custody and access disputes, provided they can instruct counsel.Footnote 42 In Ontario, the Office of the Children’s Lawyer has adopted a policy that gives lawyers more discretion: counsel must ensure that the court is made aware of the child’s wishes but may advocate a position that advances the interests of the child even if that position is not consistent with the child’s wishes.Footnote 43 In practice, many lawyers vary their approach in different cases, taking more account of a child’s instructions if a child is older and more mature, and less direction if the child wants an outcome that might harm the child.Footnote 44 Further, in practice, lawyers for children often play an important role in trying to encourage parents to settle their disputes without trial, which is often what children most desire.
Lawyers for children are generally responsible for placing children’s views and preferences before the court. However, two appellate courts – the Ontario Court of Appeal and the Alberta Court of Appeal – have held that, unless the parties consent, lawyers for children cannot provide “evidence from counsel table” about children’s views and preferences.Footnote 45 These appellate courts have held that children’s views and preferences should be placed before the trial court by a social worker or mental health professional who has interviewed the child and can testify about what was said by the child and under what circumstances, and who can be cross-examined by all of the parties.
Another way in which children are heard in custody and access proceeding is by meeting with the judge, either by coming to the court room or meeting in the judge’s chambers.
In Quebec, Article 34 of the Civil Code of Québec provides:
The court shall, in every application brought before it affecting the interest of a child, give the child an opportunity to be heard if his age and power of discernment permit it.Footnote 46
This provision is commonly used to allow children to meet with judges, either in their chambers, or in the court room, invariably without the parents present.Footnote 47
Judicial interviews are expressly provided for in the statutes of New Brunswick,Footnote 48 Newfoundland and Labrador,Footnote 49 the Northwest Territories,Footnote 50 and Ontario. For example, s. 64(2) of Ontario’s Children’s Law Reform Act provides: “The court may interview the child to determine the views and preferences of the child.”Footnote 51 In other provinces, case law establishes that judges have the discretion to interview children.Footnote 52 However, except in Quebec, judicial interviews are not very common in custody and access proceedings.
In a 2004 decision of the Ontario Superior Court of Justice, Justice Quinn suggested that judicial interviews should be used “only as a last resort” to ascertain a child’s views and preferences.Footnote 53 Other Ontario judges have expressed concern that judicial interviews without parents present might undermine “the appearance of justice” and the traditional due process rights of parents.Footnote 54 One of the controversial issues related to judicial interviews is whether and how parents should be provided with a transcript of the meeting with the child. Commentators and some of the reported jurisprudence suggest that judges have the discretion to provide parents with a summary of the child’s statements, without using the child’s exact words and sparing the child from potential embarrassment or damaging a child’s relationship with a parent.Footnote 55
However, there now seems to be a gradual trend towards growing judicial acceptance of this practice.Footnote 56 In 2010, Justice Martinson of the Yukon Territory Supreme Court considered whether to interview a 12 year-old boy for the purposes of ascertaining his views and preferences, despite that jurisdiction not having legislation expressly providing for judicial interviews in custody and access disputes.Footnote 57 Citing Article 12 of the CRC, Martinson J. declared:
Children have legal rights to be heard during all parts of the judicial process, including judicial family case conferences, settlement conferences, and court hearings or trials. An inquiry should be made in each case, and at the start of the process, to determine whether the child is capable of forming his or her own views, and if so, whether the child wishes to participate. If the child does wish to participate then there must be a determination of the method by which the child will participate.Footnote 58
While Martinson J. declined to interview the child in that particular case, she made clear that, in her view, not only do judges have the discretion to interview children, they also have a duty to ensure that children are asked whether they would like to meet with the judge.
Views of the Child Reports
With the cost and delay involved in assessments and appointment of counsel, and the concerns about due process and other issues related to judicial interviews, a growing practice has been the preparation of non-evaluative Views of the Child Reports (also called Voice of the Child, Wishes of the Child or Hear the Child Reports). These reports, typically prepared by a lawyer or mental health professional, are based on one or more interviews with the child and are meant to provide the court with information about the child’s perspective on his or her life and the matters in dispute.Footnote 59 Views of the Child reports are much narrower in scope than traditional custody assessments, but much less costly and time consuming to prepare. Although there is variation, it would seem that the most common practice is for professionals preparing these reports to not express views about children’s statements, but to offer the child the choice of what statements will be included in the report to their parents and the court.
The reports were first introduced in British Columbia, which has one of the lowest rates of government funding for full custody assessments, and have since been used in Alberta, Saskatchewan, Manitoba, Newfoundland and Labrador, New Brunswick and Nova Scotia. There are a few cases of Views of the Child Reports having been ordered in Ontario, although the practice is still very rare there.
Although none of the provinces or territories in Canada have legislation that specifically provides for the preparation of Views of the Child Reports, courts have ordered these reports under the broader power to order assessments. At least two judges in New Brunswick and one in Nova Scotia have found further authority to order these reports in Article 12 of the CRC.Footnote 60 These decisions recognize that Views of the Child Reports can play an important role in protecting a child’s right to be heard.
Other Evidence of Children’s Views and Preferences
Other ways of hearing children who are the subject of custody and access disputes include having the child testify in court, admitting written statements from the child, or introducing audio or video-recorded statements by a child. Child testimony in custody and access proceedings is very rare. Judges are concerned about the emotional harm to children that could result from being witnesses in open court, and testifying in the presence of their parents and potentially being subject to cross-examination. Where one parent seeks to have a child testify, as sometime happens in alienation cases, judges have the power to refuse to issue a summons to a child or to prevent the child from testifying if the judge considers that this is necessary to protect the interests of the child.Footnote 61
Because children rarely testify in custody and access cases, judges are more inclined to admit evidence of children’s out-of-court statements. Some of this evidence is hearsay, and thus subject to the “necessity and reliability” test set out in R. v. Khan.Footnote 62 Expert evidence, including the opinions of a custody assessor, even if based on a child’s statements, is technically not hearsay. Another exception is evidence of children’s wishes, which is admitted to establish the child’s “state of mind” rather than establish the truth of the statement. Judges have long used this exception to the hearsay rule to permit adult witnesses in custody and access cases to testify about a child’s wishes.Footnote 63 However, where the adult testifying about the child’s wishes is a parent or interested party, judges have refused to admit such evidence or have accorded it very little weight; judges are concerned about the reliability of this type of evidence,Footnote 64 and the implications of allowing parents to testify about a child’s statements, which may encourage parents to involve children in custody litigation.Footnote 65
Where counsel or a parent seeks to introduce children’s evidence to prove a contested fact in a custody and access proceeding, in particular related to allegations of abuse or domestic violence, many judges apply the Khan test of necessity and reliability.Footnote 66 However, some judges accept that in custody and access proceedings, where the best interests of the child are paramount, the rules of evidence ought to be relaxed even when related to allegations of abuse or violence. In a recent Ontario decision, Justice Price of the Superior Court explained:
The court’s parens patriae jurisdiction, when determining issues of temporary care, or custody of and access to children, especially amidst allegations of domestic violence, sexual abuse, or parental alienation, gives it a broad discretion to base its decisions on the best evidence available, and to take a flexible approach to hearsay.Footnote 67
In British Columbia, this “flexible” approach to children’s hearsay evidence in custody and access cases is prescribed by statute. Section 202 of the Family Law Act provides:
In a proceeding under this Act, a court, having regard to the best interests of a child, may do one or both of the following:
- admit hearsay evidence it considers reliable of a child who is absent;
- give any other direction that it considers appropriate concerning the receipt of a child’s evidence.Footnote 68
The provision was interpreted by Regional Senior Provincial Judge Harrison in the 2014 case of K. (N.N.) v. L (S.F.): “The common law test has been modified in Family Law Act matters by s. 202 of the Act, which may to some degree reduce the necessity requirement in the best interests of a child who is absent.”Footnote 69
B. Hague Child Abduction Convention Proceedings
A number of Canadian cases have considered children’s participation rights in the context of proceedings respecting the Hague Convention on the Civil Aspects of International Child Abduction [“Hague Convention”]. The Hague Convention is a multilateral treaty that provides for the return of children taken from their country of habitual residence to another member state.Footnote 70 The proceedings are typically commenced by one parent (the left behind parent) litigating against the other parent (the taking parent) to obtain an order for the return of the child to the child’s jurisdiction of habitual residence after a “wrongful removal,” so that any parenting dispute can be resolved by the courts in the jurisdiction of the habitual residence. However, the proceedings directly affect the child, since they may result in a court order requiring the return of the child, sometimes after the child has spent a considerable period of time settling into life in Canada.
Child’s Views and Objections
Article 13 of the Hague Convention provides for situations where Canadian courts are not bound to return the child to his or her country of habitual residence, including situations where return would expose the child to a grave risk of “physical or psychological harm or otherwise place the child in an intolerable situation.” In some cases, the views and perspectives of the child may be relevant for assessing whether the child faces a risk from return.
Further, Article 13 of the Hague Convention allows courts to refuse to return a mature child who “objects,” providing:
The judicial …authority may also refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views.
According to the Article 13, the weight to be given a child’s objection depends on the age and maturity of the child. Clearly in cases where this provision is invoked, it is important for the child’s views to be communicated to the court, and it may often be appropriate for the child to have independent representation.
While Article 13 of the Hague Convention appears to give courts fairly wide authority to take into account a child’s views, the Hague Convention is generally interpreted in a fashion that narrows this exception, to accord with its general intent of discouraging wrongful removal of children from their jurisdiction of habitual residence. The onus is on the parent or child seeking to invoke this exception. The courts recognize that if a child has been taken by one parent and had little or no contact with the left-behind parent for a significant period of time, the child is likely to express a preference for continuing to reside in the new jurisdiction with the parent who wrongfully removed or retained the child, so a mere preference is not sufficient:Footnote 71 there must be an “objection” to return from a “mature child.”
The British Columbia Supreme Court in Beatty v. Schatz cited Article 12 of the CRCfor the proposition that it was important to hear the views of the child when Article 13 of the Hague Convention is raised, and ordered a psychologist to interview the child and report to the court. However, the court concluded that the 11 year-old boy was not mature enough to understand all of the subtleties and long-term consequences of what was happening. Furthermore, the father had been exerting subtle but significant influence over the boy, giving him the message that he did not have to return to the jurisdiction of his habitual residence, Ireland, even though the Court said that he had to. The Court was concerned that not returning the boy to Ireland would send the message that it was acceptable to retain a child in another country as long as the child asserted that he or she did not wish to return, and accordingly took a narrow approach to the scope of the child’s objection exception in Article 13 of the Hague Convention.Footnote 72 Justice Martinson held that it was unfair to the child and contrary to the policy intentions of the Hague Convention to allow the child to in effect make the decision:
A was ten when his father placed the responsibility of what should happen on his shoulders. He just turned 11…. Though he is obviously bright and can express what he wants to do and why, he is not mature enough to understand the subtleties of what is happening and their long-term consequences on his well-being.
This is a case where the policy considerations underlying the Hague Convention are particularly important. As the [House of Lords] said in Re M., the Hague Convention is there not only to secure the prompt return of abducted children, but also to deter abduction in the first place.Footnote 73
The Alberta case of R.M. v J.S., also illustrates the high onus of proof for raising a defence under Article 13 of the Hague Convention based on the child’s objections, and offers some guidance for how evidence about a child’s maturity and objections should be introduced. The mother and father were Palestinian Muslims, living in East Jerusalem, and had one child, a son. The parties separated, and were subsequently divorced in the Sharia Court of Jerusalem, with the mother having de facto custody. The father immigrated to Calgary, while the mother and son continued to live in Jerusalem on the understanding that the son would spend his summers with the father in Alberta.
When the father failed to return his then 9 year-old son to his mother in Jerusalem after a summer visit, the mother brought an application under the Hague Convention for the boy’s return. The trial court appointed counsel to represent the interests of the child.Footnote 74 Counsel for the child reported that after interviewing the child on two occasions, that the child [then 10 years of age] objected “to being returned [to Jerusalem] and has attained an age and degree of maturity at which it is appropriate to take account of its views” within the meaning of Article 13 of the Hague Convention. The child’s lawyer concluded that the boy was not subject to undue influence from the father, and was “mature for his age, bright and articulate when it came to describing his concerns about returning to Israel,” noting that as a Palestinian youth he often felt unsafe and bullied in Israel. The judge accepted that there had been a wrongful retention, but ruled that the child was “mature” and had understandable objections to return, and accordingly refused the application.Footnote 75
The Alberta Court of Appeal allowed an appeal and directed that the child be returned “forthwith” to the mother in Jerusalem, expressing concern that the trial judge:
seemed to treat the child's objection as controlling. While he found that the child's objection was not coerced, nor otherwise improperly influenced, the evidence and matters he took into account in coming to that conclusion were also missing from his decision. There is also the concern that, in weighing the elements of the child's objection which spoke to the child's preferences and hopes, the Provincial Court judge fell into forming a conclusion about the child's best interests.... In short, the objects and policy considerations underlying the Convention appear to have been overridden without a proper evidentiary basis...Footnote 76
The Court of Appeal decision in R.M. v J.S. questioned the conclusions of the trial judge about the maturity of the boy, but actually rested its decision on the fact that the trial judge based his findings about the boy’s “objections” on the submissions of counsel for the child.Footnote 77 The Court suggested that evidence about the child’s wishes and views should be put before the trial court by a social worker, psychologist, or other child-care professional who had interviewed the child. This would allow the clinician to be cross-examined by the other parties, ensuring that the evidence is fairly tested. The Court of Appeal held that in the absence of express consent from the other parties, counsel for a child should not tell the court about a child’s views and preferences, as counsel cannot occupy the dual role of advocate and witness.
Role of Children in Hague Convention Proceedings
While Hague Convention proceedings are intended to be summary and presiding judges are not expected not to directly address the interests of children, children are nevertheless profoundly affected by these proceedings, and courts in a number of countries are struggling with issues about how to respect the rights of children in Hague Convention proceedings. Article 12 of the CRC, as well as instruments like Canada’s Charter of Rights and Freedoms may give children the right “to be heard” in these proceedings.
The balancing of the wishes and rights of children against the obligations imposed by the Hague Convention is most apparent in cases where a child has made a refugee application, as in the 2011 Ontario Court of Appeal decision in A.M.R.I. v. K.E.R.Footnote 78 The girl in that case was born in Mexico, and after her parents’ separation resided with her mother there pursuant to an order made by a Mexican court. In 2009, at the age of 12, she came to Ontario to visit her father. She told her father that the mother had been abusive. The child did not return to Mexico but remained in Ontario with the father and an aunt. In 2010, the child made an application to be accepted as a refugee in Canada due to the abuse by her mother and the failure of the Mexican authorities to adequately protect her. The father, however, had by that time moved to Norway, while the child remained in Ontario with her aunt. After the child had been living in Ontario for about 18 months, the mother brought a Hague Convention application for the child's return to Mexico. The hearing proceeded on an uncontested basis, with none of the father, the aunt or the child participating. The application judge held that the child was being wrongfully retained in Ontario and ordered her immediate return to Mexico under the Hague Convention, which was effected through the involvement of the police.
Despite the girl’s return to Mexico, the father appealed, with the Ontario Children’s Lawyer representing the child on the appeal. The Ontario Court of Appeal held that the trial judge had erred in ordering the child's return to Mexico without considering the girl’s refugee status or giving the child an opportunity to participate in the proceedings. The Court of Appeal held that in this situation, the Hague Convention hearing must comply with the child’s right to treatment in accordance with the Charter of Rights and Freedoms s. 7 “principles of fundamental justice” as there was a threat to her “security of the person.” Given the child's age and the nature of her objection, the Charter required that she be given notice and an opportunity to participate. In coming to its conclusion, the Court of Appeal cited the CRC:
art. 12(1) of the CRC stipulates that the views of a child are to be given due weight according to the child's age and maturity and that a child has the right "to express those views freely in all matters affecting the child". Article 12(2) of the CRC confirms this right in the context of "judicial and administrative proceedings affecting the child".
At almost 14 years of age, the child in this case was clearly of an age and potential maturity such that her objection to return to Mexico had to be considered…. Given the child's age, the nature of her objection, her status as a Convention refugee, the length of time that she had been in Toronto and the absence of any meaningful current information regarding her actual circumstances in Toronto at the date of the Hearing, her views concerning a return to her mother's care in Mexico were a proper and necessary consideration. Footnote 79
While the Court of Appeal order that there was to be a new hearing with the child participating had no effect in Mexico, shortly after the appellate court ruling the youth had been able to leave Mexico on her own and get to Canada.Footnote 80 There was no further hearing and she continued to reside in Canada.
The decisions of the Ontario Court of Appeal in A.M.R.I. v. K.E.R.,Footnote 81 and the Alberta Court of Appeal in R.M. v J.S.Footnote 82 raise the issue of how and when children should be involved in Hague Convention applications. In these cases, children were made parties or had counsel appointed to represent their interests in the proceedings.
In deciding whether to appoint counsel or make a child a party, the court should take into account concerns about not wanting to exacerbate hostility between a child and one parent, usually the left-behind parent. However, the Ontario Court of Appeal has suggested that in cases where a child’s “liberty or security of the person” may be affected by a return, for example because there is a claim of potential harm due to alleged violence or abuse, s. 7 of the Canadian Charter of Rights and Freedoms and Article 12 of the CRCrequire that a child must be given notice of the proceedings and an opportunity to participate through counsel.Footnote 83 The Court of Appeal held that concerns about protection for a child’s “liberty and security of the person” should “predominate,” which requires affording the child an opportunity to participate and have his or her views heard.
Some of the factors to be considered in deciding whether to grant party status or legal representation to a child include:
- Where the child is older and there is a reasonable prospect that the child has the capacity to instruct counsel and have an independent position;
- Where the child’s position may not be adequately represented by the adult parties, for example because of their lack of legal representation;
- Where an expert or therapist involved with the child recommends such involvement;
- Where the child has expressed concerns that return might affect his or her life, liberty or security of the person.Footnote 84
A court making an order appointing counsel may provide some direction or restrictions on the role of counsel for the child. In the absence of such restrictions, counsel for the child should take account of such factors as the age and capacity of the child to instruct counsel, the views of the child, and any provincial law society guidelines about the role that counsel is to play. Counsel should normally be taking instructions from a child who is expressing clear and consistent views.Footnote 85 Counsel should ensure that the child understands the limited scope of Hague Convention proceedings, focusing on whether a child should be returned to the jurisdiction of habitual residence rather than a ruling on custody or access. A grant of party status to a child usually does not mean that the child will attend court to testify.
C. Child Protection Proceedings
Canadian child protection proceedings are another venue in which children’s right to be heard has been recognized. Many of the same principles around hearing children who are involved in custody and access disputes apply in the child protection context.Footnote 86 Indeed, the right of children to be heard may be even more compelling in child protection cases, where a state-sponsored child welfare agency may be threatening the child’s relationship with parents and siblings. A child’s right to be heard is granted greater recognition in child protection proceedings than in private custody and access cases, both in legislation and case law, with Canadian judges sometimes citing Article 12 of the CRC to justify this recognition.
The Importance of Hearing Children in Child Protection Proceedings
Like custody and access legislation, child protection statutes establish the best interests of the child as a governing test once a child has been found to be in need of protection, and most Canadian statutes expressly include consideration of a child’s views and preferences as a factor in making decisions on behalf of such children. A few child protection statutes go further, underling the importance of hearing from children in these cases. Alberta’s Child, Youth, and Family Enhancement Act provides that:
(d) a child who is capable of forming an opinion is entitled to an opportunity to express that opinion on matters affecting the child, and the child’s opinion should be considered by those making decisions that affect the child;Footnote 87
The Northwest Territories’ Child and Family Services Act, in addition to directing that the best interests of the child include a consideration of “the child’s views and preferences, if they can be reasonably ascertained”,Footnote 88 also emphasizes the importance of children’s participation and the need for their views to be heard and considered:
2. This Act shall be administered and interpreted in accordance with the following principles:
- h. children, where appropriate, and parents should participate in decisions affecting them;
- i. children, where appropriate, parents, and adult members of the extended family should be given the opportunity to be heard and their opinions should be considered when decisions affecting their own interests are being made;Footnote 89
The Children and Youth Care and Protection Act of Newfoundland and Labrador recognizes the importance of hearing children who want to be heard, and provides specific instructions on how this “participation” should be facilitated:
53. Where a child who is the subject of a proceeding under this Act requests that his or her views be known at the proceeding, a judge shall
- meet with the child with or without the other parties and their legal counsel;
- permit the child to testify at the proceeding;
- consider written material submitted by the child; or
- allow the child to express his or her views in some other way.Footnote 90
Section 53 adds to s.9 of the Newfoundland and Labrador statute, which provides that decisions under the Act be made in accordance with the best interests of the child, and that determining best interests requires consideration of the child’s “opinion.”Footnote 91
Children’s Views and Preferences Not Determinative
As in custody and access disputes, a child’s views and preferences in a child protection proceeding are not necessarily determinative. It is not uncommon for children who have been abused or neglected to express a desire to return to their homes and parental care, so their express preferences must be balanced against other factors. Again, a child’s age, maturity, and the reasons for a preference will affect the weight attached to the child’s wishes.Footnote 92
Manitoba’s Child and Family Services Act is the only child protection statute that establishes a presumptive age at which a child’s views should be considered.Footnote 93 Section 2(2) provides:
In any proceeding under this Act, a child 12 years of age or more is entitled to be advised of the proceedings and of their possible implications for the child and shall be given an opportunity to make his or her views and preferences known to a judge or master making a decision in the proceedings.Footnote 94
The views of children under 12 years of age may also be considered, though the court must be satisfied that the child’s understanding justifies this, and that the child would not be harmed by having his or her views and preferences considered. Section 2(3) states:
In any court proceeding under this Act, a judge or master who is satisfied that a child less than 12 years of age is able to understand the nature of the proceedings and is of the opinion that it would not be harmful to the child, may consider the views and preferences of the child.Footnote 95
While children 12 and over have the right to be heard, children under 12 will only be given this opportunity in limited circumstances.
In custody and access proceedings, the wishes of older children are often given more deference, and judges may respect a child’s choice of placement even if this placement is not in the child’s best interests. While custody and access proceedings in some cases raise concerns about child safety, these concerns are always present in child protection proceedings. Judges in child protection matters still attach greater significance to the views and preferences of older children but will not follow these choices where doing so would place the child at risk of harm.
In A.C. v. Manitoba (Director of Child and Family Services),Footnote 96 the Supreme Court of Canada explained how judges should weigh the views of older children when making a decision in accordance with their best interests in child protection cases. The case engaged provisions of Manitoba’s Child and Family Services Act respecting judicial authorization of medical treatment of children against the wishes of both parents and child. The child, a 14 year-old Jehovah’s Witness, was admitted to hospital for internal bleeding. Her doctors believed that without a blood transfusion she faced a serious risk to her health, and perhaps her life, but the child and her parents refused this treatment on religious grounds. The child was apprehended by the child protection agency, which sought an order authorizing the transfusion. Section 25(8) of the Child and Family Services Act provides that a court, after a hearing, may authorize any medical treatment the court considers to be in the best interests of the child. Section 25(9) states that the court shall not order treatment contrary to the wishes of a child over the age of 16, unless the child cannot understand the decision or appreciate its consequences. The judge ordered the transfusion pursuant to s. 25(8). After the transfusion, the child and her parents appealed the order, challenging the constitutionality of s. 25 of the Act. They argued that depriving children under 16 of an opportunity to prove their maturity to direct the course of their medical treatment violated provisions of the Charter of Rights and Freedoms, including s. 2 (freedom of religion), s. 7 (deprivation of security of the person not in accordance with principles of fundamental justice), and s. 15 (discrimination based on age).
Justice Abella, writing for a majority of the Court, agreed that there was “no constitutional justification for ignoring the decision-making capacity of children under the age of 16 when they are apprehended by the state,”Footnote 97 but did not agree that s. 25 required such an approach. Instead, the “best interests” standard in s. 25(8) could be read as a “sliding scale of scrutiny, with the adolescent’s views becoming increasingly determinative depending on his or her ability to exercise mature, independent judgment.”Footnote 98 The degree of significance attached to a child’s views also depended on the decision: “The more serious the nature of the decision, and the more serious its potential impact on the life or health of the child, the greater the degree of scrutiny that will be required.”Footnote 99 Assessing a particular child’s views in light of the decision to be made struck a balance between protecting children’s autonomy and protecting them from harm. Abella J.’s interpretation of s. 25(8) left open the possibility that in cases involving less serious risk, the treatment wishes of a child under 16 years could be determinative, or that even in a life threatening case the views of an older child might be given greater weight.
Article 12 of the CRC played a role in the majority’s analysis. According to Abella J., Canadian law now recognizes that receiving children’s input leads to better decision-making on their behalf. This is why children’s views have become a factor in the best interests analysis, with these views acquiring more significance as the child matures.Footnote 100 Abella J. explained that Article 12 of the CRC, along with other Articles of the CRC, supports this “robust” reading of the best interests standard.Footnote 101
Ways of Hearing Children in Child Protection Proceedings
The views of children in child protection proceedings are heard in similar ways to children in custody and access proceedings. An assessor or child’s counsel may introduce children’s statements, children may meet directly with the judge or more infrequently testify, or children’s out-of-court statements may be put before the court as hearsay exceptions. While the means of introducing children’s evidence in the two types of proceedings are similar, different principles and considerations may apply.
Assessments in Child Protection Cases
All jurisdictions provide for court-ordered assessments in child protection proceedings. For example, British Columbia’s Child, Family and Community Service Act allows the court to order a child or a parent to undergo “a medical, psychiatric or other examination” where such an examination is likely to assist the court “(a) in determining whether the child needs protection, or (b) in making an order relating to the child.”Footnote 102 The reported case law suggests that the majority of assessments in child protection cases focus on parents to assess their capacity to care for the child. These assessments, however, may include interviews with the child, and the child’s statements can be introduced in the child protection proceeding through an assessor’s report, which will usually include the assessor’s commentary on the child’s statements and overall recommendations about the case. However, courts can also order assessments solely to determine the views and preferences of the child. In New Brunswick, for example, judges have ordered Voice of the Child Reports in child protection cases.Footnote 103
Counsel for the Child
Most provinces and territories have statues providing for the appointment of legal representation for children in child protection proceedings. Where the legislation is silent, superior court judges have relied on the court’s parens patriae power to appoint child’s counsel.Footnote 104 Again, only some jurisdictions provide state-funded counsel for children.Footnote 105
Unlike custody and access statutes, most child protection statutes provide guidance on the judicial appointment of representation for a child. Some of the enumerated factors are also considered in custody and access cases, including whether the child’s interests conflict with the interests of other parties. Others are specific to the child protection context. For example, Manitoba’s Child and Family Services Act directs that judges consider, inter alia, “the nature of the hearing, including the seriousness and complexity of the issues and whether the agency is requesting that the child be removed from the home” in appointing a lawyer to represent the child.Footnote 106
In a few jurisdictions, legislation dealing with separate representation for children in a protection case includes reference to a specific age. New Brunswick’s Family Services Act directs judges to consider a number of factors when appointing child’s counsel, including “whether the child is 12 years of age or older.”Footnote 107 Prince Edward Island’s Child Protection Act only allows state-funded child representation where the child is “at least 12 years old and apparently capable of understanding the circumstances.”Footnote 108 In Nova Scotia, the Children and Family Services Act provides that children 16 years of age or older are parties to the proceeding and are entitled to counsel upon request.Footnote 109 In the case of a child who is 12 years of age or older, the court may order separate legal representation where it is “desirable to protect the child’s interests.”Footnote 110
These age provisions are generally tied to a presumption that children of the specified age have the capacity to instruct counsel. For example, Nova Scotia’s Act also provides that a guardian ad litem may be appointed for any child, including children 12 years of age or older where the child is “not capable of instructing counsel.”Footnote 111 Similarly, Manitoba’s Child and Family Services Act directs that where representation is ordered for a child 12 years of age or older, the judge may order that the child has “the right to instruct the legal counsel.”Footnote 112
However, in some jurisdictions judges have held that child representation may be important even in child protection cases involving children who clearly cannot instruct counsel.Footnote 113 In Re F. (T.L.),Footnote 114 Justice Ryan-Froslie of the Saskatchewan Court of Queen’s Bench ordered separate representation for a seven month-old child, holding that the principal consideration in determining whether independent representation is necessary for the child in child protection proceedings is “whether it is desirable in the interests of justice viewed from the standpoint of the child’s welfare.”Footnote 115 In that case, the parties – the parents, their band, and the child protection agency – all had their own agendas and interests and the judge was concerned that without separate representation evidence and argument about the rights of the child would not be placed before the court. She also described the role that counsel for the young child should play:
It is clear …that the role of the lawyer in this situation consists of representing the rights of the child and ensuring the court considers all relevant factors which will enable it to make a decision according to the rights and interests of the child. The lawyer does not put forward his or her personal convictions but rather his or her professional conclusions based on the evidence. The nature of the lawyer's mandate would necessarily vary depending on whether the mandate comes from the child or the court.
In the circumstances of the case at bar I believe the best method of representing T.'s interest would be the appointment of independent legal counsel whose mandate it would be to represent the rights of the child and ensure that the court considers all relevant factors which will enable it to make a decision according to the rights and interests of T.Footnote 116
As the state mandated child welfare agency is a party to child protection proceedings, if an order is made for child representation, it must be provided. This is particularly significant in Ontario where in custody and access cases, a judge makes an order requesting the involvement of the Office of the Children’s Lawyer, which will then decide whether to provide a lawyer, a clinical assessment, both or neither. If an order is made in a child protection case under s. 38 of the Ontario Child and Family Services Act, legal representation “shall” be provided to the child, almost always by the Office of the Children’s Lawyer.
In some jurisdictions children may also be given the opportunity to meet one-on-one with judges in child protection proceedings, though this is less common than in disputes between parents as the state’s role in child protection cases heightens concerns about due process. Both Newfoundland and Saskatchewan explicitly provide for this option by statute.Footnote 117 Judicial interviews may also occur in child protection proceedings in jurisdictions where the legislation is silent. In W. (M.) v. British Columbia (Director of Child, Family & Community Service), Dhillon J. of the British Columbia Provincial Court granted the request of a 12 year-old girl for a private interview after the mother and Director consented to the interview taking place.Footnote 118 The judge observed that the girl had a “clear reluctance to discuss” the reasons that she did not want to live with her mother in her mother’s presence, and indicated that the interview would remain confidential, though the parties were provided with a summary of the matters discussed and a sealed transcript was kept in the event of an appeal.
In Newfoundland and Labrador, legislation provides that if a child makes a request, a meeting “shall” be held with the judge or the child’s views shall be shared with the court in some other way.Footnote 119 In Saskatchewan, judicial interviews are discretionary; they may be ordered if the court considers the interview to be in the best interests of the child.Footnote 120 One consideration in ordering an interview pursuant to Saskatchewan’s statute is whether the child’s views would otherwise be shared with the court. In Re P. (G.), Justice Wilkinson of the Court of Queen’s Bench encouraged counsel to consider whether a judicial interview would be appropriate given conflicting evidence before the court about the five children:
I have been bereft of any evidence regarding the children that has not been filtered through many different, and often irreconcilable, points of view… so long as the Court is the final arbiter of a child’s future it must question its ability to fully honour its duty towards children who are both faceless and mute before the Court.Footnote 121
The judgment notes the importance of hearing from children for whom life altering decisions are being made in protection proceedings.
Other Evidence of Children’s Views and Preferences
As in custody and access proceedings, the rules for admitting children’s out-of-court statements have been relaxed in child protection proceedings compared to criminal cases. While some Canadian courts have applied the Khan test to children’s out-court-statements in these proceedings,Footnote 122 the trend is to move away from the stricter standard of “necessity and reliability.” Some child protection statutes make this relaxation of evidentiary standards explicit. For example, s. 67 of British Columbia’s Child, Family and Community Service Act does not include a “necessity” requirement; children’s out-of-court statements need only be “reliable” to be admitted in a child protection proceeding.Footnote 123This provision has been interpreted as intended to protect children’s best interests, since the alternative of testifying in the presence of the parents in court has been recognized to carry real risks of emotional harm and trauma to the child.Footnote 124 In a similar vein, Saskatchewan’s Child and Family Services Act directs that, “The court may admit hearsay evidence if, in the opinion of the court, the evidence is credible and trustworthy and it would not be in the best interests of a child for the child to testify.”Footnote 125
Additional Participation Rights in Child Protection Proceedings
Children are generally granted greater procedural rights to participate in child protection proceedings than in custody and access proceedings as the state is a party and there is a threat to children’s relationships with family. In many jurisdictions, children who are the subject of child protection proceedings may be entitled to notice and may even be parties.
In Alberta, all children are parties to child protection proceedings.Footnote 126 In Nova Scotia, whether a child is a party depends on the child’s age. According to s. 36(1) of the Children and Family Services Act, children 16 years of age or older are parties, unless the court orders otherwise. Children 12 years of age or older may be granted party status upon the child’s request where the court determines that such status is “desirable to protect the child’s interests.”Footnote 127 Children of any age who are represented by a guardian ad litem may also be made a party where necessary to protect their interests. In Saskatchewan, s. 29 of the Child and Family Services Act provides that a child of any age can be served with notice of a protection hearing if the court considers it in the best interests of the child, but that the receipt of notice does not make the child a party. However, at least one judge has interpreted this provision as not excluding the possibility that a child could also be made a party to a child protection proceeding in that province, giving the child (or counsel) greater opportunity to participate in the proceeding.Footnote 128
In provinces and territories that provide for notice to children who are the subject of a child protection proceeding, most restrict this requirement to children 12 years of age or older. In some jurisdictions, like Manitoba and Nova Scotia, some form of notice for older children is mandatory. However, in C. (A.B.) v. Nova Scotia (Minister of Community Services),Footnote 129 Justice Dellapinna of the Nova Scotia Supreme Court considered the effect that being served personally with notice of child protection hearing would have on a 13 year-old child with special needs and appointed a litigation guardian to receive documents on the child’s behalf.Footnote 130
In Ontario, the right to notice is tied to the right of children to be present at child protection proceedings. For children 12 years of age or older, the Child and Family Services Act directs that children receive notice and be allowed to attend “unless the court is satisfied that being present at the hearing would cause the child emotional harm”.Footnote 131 Children under 12 are not entitled to receive notice or be present unless the court is satisfied that the child “(a) is capable of understanding the hearing; and (b) will not suffer emotional harm by being present at the hearing”.Footnote 132 In Jewish Family and Child Services of Greater Toronto v. K. (S.),Footnote 133 the court considered a motion by the child protection agency to exclude a 14 year-old child from the proceedings based on risk of emotional harm. There was evidence before the court that the child had been emotionally affected by the level of conflict among the adults involved in the case and her own interactions with her parents. The child opposed the agency’s motion; the parents supported it. Justice Jones of the Ontario Court of Justice refused to exclude the child, finding no medical evidence to support the society’s claim that the child’s attendance would cause emotional harm. Jones J. was not prepared “to curtail entirely the child’s statutory right to attend court” where the potential risk of harm to the child was related to tension between the parties and interactions that had occurred outside the courtroom. The judge did recognize that contact with the parents was potentially unsettling for the child, and so ordered that a protocol was to be used for the child’s attendance to reduce the likelihood of the child having to interact with her parents.Footnote 134
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