Vancouver Child’s Views Wishes Best Interests lawyers deal with cases where the court must consider how to obtain and what weight should be given to a child’s views or wishes. In past decades it was thought the best approach was to keep children insulated from the entire separation process. However, over time a number of psychological studies indicated in many cases children expressed a wish to be involved in their own child custody dispute.
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Over time, courts across the world started to involve children more in cases involving parenting time and where and whom they wish to spend time. In BC and Alberta, courts are required to consider a child’s views unless it would be inappropriate to do so. Considering a child’s wishes doesn’t mean a child is given the power to decide their future. How a child participates or if they participate at all in a parenting time and responsibly dispute
Indeed, many decisions cite the principle that giving the child this tremendous responsibility, or even demanding that they participate by stating their wishes about which parent they wish to live with, can be damaging in some cases.
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In this week’s BC Court of Appeal decision of Fox, the issue of Vancouver Child’s Views Wishes Best Interests was canvassed in an appeal by the child’s father. The father complained a judge failed to take the child’s wishes into account on the unusual issue of how the parents should resolve disputes over child parenting.
His appeal was dismissed and the Court discussed why the trial judge appropriately did not involve the wishes of a 14-year-old child on a scheme for resolving parenting disagreements involving the child.
[18] Turning to the first ground of appeal, s. 37(1) of the FLA provides that in making an order respecting guardianship and parenting arrangements, the court must consider only the best interests of the child. Section 37(2) requires that a court consider a number of factors in determining the best interests of the child. This includes the child’s views unless it would be inappropriate to consider them: FLA, s. 37(2)(b).
[19] For ease of reference, I set out s. 37 of the FLA:
37(1) In making an agreement or order under this Part respecting guardianship, parenting arrangements or contact with a child, the parties and the court must consider the best interests of the child only.
(2) To determine what is in the best interests of a child, all of the child’s needs and circumstances must be considered, including the following:
(a) the child’s health and emotional well-being;
(b) the child’s views, unless it would be inappropriate to consider them;
….
[20] Here, the judge correctly directed her mind to s. 37(2) of the FLA at para. 54 of her reasons.
[21] This is unlike a case where an older child’s views are canvassed as to actual parenting arrangements. What the Father suggested is that the court canvass the child’s views as to how the Father and Mother should resolve their disputes.
[22] The judge held that it was inappropriate to involve the child in the determination as to the decision-making process in relation to himself. She noted, at para. 55 of her reasons, that it would bring him into the dispute and put him in an impossible position of having to choose between his parents’ opposing views.
[23] Generally speaking, the prevailing wisdom is that parents should not involve a child in the parents’ disputes about what is best for the child. This is because it is highly stressful for the child and divides the child’s loyalties. It can also be a tool by which one parent tries to alienate the child from the other parent.
Vancouver Child’s Views Wishes Best Interests – How To Obtain Child’s Views
[24] Sometimes, it may be appropriate for a neutral person to obtain an older child’s views on some of the living arrangements. However, that is a different matter than the issue in this case.
[25] The FLA provides various ways for a court to obtain the views of a child, including: in s. 202 allowing for the receipt of hearsay evidence; in s. 203 appointing a lawyer to represent the child’s interests; and in s. 211 for the appointment of a trained independent person to assess the child’s views or needs and prepare a report for the court. The Father sought no orders under any of these sections in his application response.
[26] In this case, even though the child was 14, he had serious learning difficulties. In my view, it would have required quite specific, exceptional evidence to lead the judge to conclude that the child should have been involved in his parents’ disputes or offered opinions as to how those disputes should be resolved. It would have required similar evidence to establish that his views would be entitled to any weight. No such evidence was before the judge.
[27] I see no basis for concluding that the judge made a palpable and overriding error in reaching this conclusion.
Vancouver Child’s Views Wishes Best Interests
Vancouver Child’s Views Wishes Best Interests cases are stressful and complex.
