Children’s Wishes and Right To Be Heard is something BC, Alberta, and Ontario Courts must take account of in deciding what is in the best interest of a child in child parenting time and child custody cases. Separated parents must take a child-focused approach after they separate. MacLean Law has 8 family law offices across Canada and our founder was winning counsel in Canada’s most famous Supreme Court of Canada child custody case of Young v Young.
In today’s blog up and coming family associate, we explain how the wishes of a child are now at the forefront of deciding what is in the best interests of the child.
Children’s Wishes and Right To Be Heard
Unfortunately, parenting disputes often arise when separated parents cannot agree on which parent gets to see the children when they get to see them, and for how long. When parents can’t resolve the issues on their own, or even with the assistance of less conflict-ridden dispute resolution mechanisms, they bring their issues to the courts.
There was once a heavy focus on leaving the children out of these matters as much as possible. This came from a good place – why involve children in their parent’s drama? Why interrupt their lives with conflict? We did our best to keep children in the dark as much as we could. One problem – they always know more than we think. Based on current and evolving research, it turns out that children want to be heard, especially when their parents disagree on an issue that directly affects them. Children’s Wishes and Right To Be Heard is a key component to creating a successful parenting plan. In BC the wishes of a child must be considered unless it would be inappropriate to do so.
United Nations Convention on the Rights of the Child
In fact, the United Nations Convention on the Rights of the Child (the “Convention”) explicitly enumerates that children have a right to be heard in matters affecting them. Madam Justice Martinson’s words in G (B.J. v G. (D.L.), 2010 YKSC 44, are strong and clear:
… 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, (“the Convention”), and Canadian domestic law.
[3] 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, or both. It does not give decision makers the discretion to disregard the legal rights contained in it because of the particular circumstances of the case or the view the decision maker may hold about children’s participation.
Of course, the courts bear in mind the appropriateness of involving children given the matter at hand, and at which age their views can actually be given due weight. According to family cases in Canada, courts are beginning to heavily consider the strong views and preferences of children as early as age 9 (2012 BCCA 154, 2010 YKSC 44).
As family lawyers, we have a duty to our clients, the parents. However, we must also ensure that we are not acting in a manner that goes against the best interests of the children involved. We can advise our clients that they themselves have a duty to their children to ensure their rights are being met and advanced. If you’re going through a parenting dispute of your own, and your children are asking to participate, have their views heard, or just want someone to talk to and help them figure out where they fit in their parents’ conflict, there are services available.
Children’s Wishes and Right To Be Heard
For instance, in Ontario, the Office of the Children’s Lawyer is a government-run institution dedicated to advocating for children’s rights and lawyers are assigned to children who are in the middle of high conflict custody disputes, estate proceedings, or issues related to child protection services.
In B.C., the Society for Children and Youth, through the Child and Youth Legal Centre offers a variety of legal services for children, including explaining the legal system and providing resources for support, and representation for children. Quite simply, these services offer children a place to be heard and empowered.
No parent wants to fight over their children, but we can’t forget that children bear the brunt of these conflicts. The least we can do is offer support, and uphold their rights. If you have questions about your Children’s Wishes and Right To Be Heard, contact us across Canada.
