BC Child Wishes and Legal Representation lawyers argue over whether a child’s wishes should be given greater or less weight when deciding a BC child custody and BC child parenting time case.
- What age and matuturity level do a child’s wishes become important in a BC child custody and parenting time case?
- What are the pros and cons for the child in participating or staying clear of the dispute so as not to take sides?
- In the past children were thought to need to be insulated from a child custody dispute; but
- Now their wishes are thought to be a key part in coming to a good decision for them.
- It will be very rare for a child to have their own legal counsel in a child custody case;
Our top BC Child Wishes and Legal Representation lawyers obtain input from children and weigh how their wishes may coincide with their best interests. MacLean Family Law has 6 offices across BC and in Calgary Alberta.
BC Child Wishes and Legal Representation 604-602-9000
Does a BC child have a choice or a voice in deciding child custody and parenting time cases they are the key focus in? Further, what is the best way to obtain input of the child’s wishes?
In 2018 JESD v YEP and SD the court decided against allowing a child to have their own legal representation in a child custody and parenting time a responsibility dispute:
Ms. D. and Mr. P. are involved in long-running litigation over Mr. P.’s access to, and parenting relationship with, their daughter, S., who is now 17 years old. S. applied to become a full party to the litigation, and to have counsel appointed to represent her. The judge refused that relief but, of his own motion, appointed an amicus curiae without defined functions. He ordered the Attorney General to provide public funding for the amicus.
On appeal, held: Appeal allowed from the order appointing an amicus. Appeal dismissed from the denial of an order appointing counsel to represent S. The judge made no error in finding that the requirements for appointing counsel under s. 203 of the Family Law Act were not met. He erred, however, in resorting to the parens patriae jurisdiction to appoint amicus. Amici can be appointed pursuant to the court’s power to control its own process, but should be appointed only to deal with specific and exceptional circumstances and he erred in ordering the AG to pay.
The groundbreaking case made headlines in today’s Vancouver Sun.
BC Child Wishes and Legal Representation – Can The Child Hire A Lawyer In Your Child Custody Case?
For the key parts on how a child’s wishes play a role in deciding what is in the best interests of children but that those wishes will rarely come from being a party in the family proceeding represented by a lawyer, read these parts of the new case:
…section 203 of British Columbia’s Family Law Act significantly limits the ability of courts to appoint lawyers for children as required by the Convention. The judge can do so only if satisfied that
(a) the degree of conflict between the parties is so severe that it significantly impairs the capacity of the parties to act in the best interests of the child; and
(b) it is necessary to protect the best interests of the child.
[45] I am not persuaded that anything in the UNCRC would allow the Court to ignore the clear limitations on the appointment of counsel set out in s. 203(1).
[46] While the failure to meet the requirements of s. 203(1)(a), in and of itself, would preclude the appointment of counsel under s. 203, the judge also found that the requirement of 203(1)(b) was not met, as it was not in S.’s best interest to become a full party to the litigation and to have her own counsel. S. contends that the judge erred in making that finding. She says that the court ought to have deferred to S.’s assessment of her best interests.
[47] Counsel for S. notes that the Family Law Act emphasizes the best interests of the child in proceedings involving children…
[48] S. points to comments such as those made by this Court in Hellberg v. Netherclift, 2017 BCCA 363 at para. 76, that the best interests of the child “must be determined from a child-centred perspective”. Those comments echo statements made by L’Heureux-Dubé J. in her minority judgments in Young v. Young, [1993] 4 S.C.R. 3 at 26, and Gordon v. Goertz,[1996] 2 S.C.R. 27 at para. 143. It seems to me that the addition of the words “from a child-centred perspective” adds little to the phrase “best interests of the child”. The best interests of the child must, by definition, focus on the child and not on others. That is all that is meant by a “child-centred perspective”.
BC Child Wishes and Legal Representation – A Child Has A Voice But Not THE Choice
[49] … In this case, for example, S. argues that the court is bound to accept her view of her best interests as definitive, because the best interests of the child must be assessed from the child’s viewpoint. Such an interpretation would make the child, rather than the court, the final arbiter of her/his best interests. In my view, such an interpretation conflates the best interests of the child with the child’s wishes.
[50] I do not suggest that the child’s wishes are to be ignored in assessing what is in the child’s best interest. Under s. 37(2)(b) of the Family Law Act, the views of children are a relevant consideration in determining their best interests, unless it would be inappropriate to consider them. This consideration, however, is only one among many that helps a court determine what is in the best interests of the child.
[51] In A.C. v. Manitoba (Director of Child and Family Services), 2009 SCC 30, the Supreme Court of Canada considered the concept of “best interests of the child” in the context of legislation that permitted a court to authorize medical treatment, even against a child’s wishes. Justice Abella, writing for the majority, noted that as children gain maturity, their wishes become proportionately more important in determining what is in their best interests. She stated:…
[92] The statutory factors reflect decades of careful study into children’s needs and how the law can best meet them. … With our evolving understanding has come the recognition that the quality of decision making about a child is enhanced by input from that child. The extent to which that input affects the “best interests” assessment is as variable as the child’s circumstances, but one thing that can be said with certainty is that the input becomes increasingly determinative as the child matures.
[52] Inherent in the Court’s analysis in A.C. is the recognition that circumstances will exist when the child’s wishes do not conform to what is in his or her best interests. Children are sometimes incapable of identifying what is in their own best interests.
[53] While the views and wishes of a mature child, such as S., will be important in determining what is in her best interests, they will not be determinative.
