Hear the Child–The Legal Framework: Why Children in Canada Have the Legal Right to Be Heard
Read the full Hear the Child–The Legal Framework: Why Children in Canada Have the Legal Right to Be Heard by Donna Martinson, QC, LLM here.
The law relating to children’s participation in custody proceedings has evolved significantly.
We have moved from an approach which has viewed children as chattels, the property of their parents or guardians, to thinking that children needed our protection and charity, to, in the 1970s, a best interests approach. That best interests approach has evolved further to the point where it is considered to be in all children’s best interests to have two distinct though related legal rights to be heard in all matters affecting them, including judicial and administrative proceedings.
The first is the right to express their views so long as they are capable of forming their own views. The second is the right to have those views given due weight in accordance with their age and maturity. A child’s evolving capacity will be relevant to how the views are expressed, and the weight to be attached to them.
There are three reasons why the law has evolved in this way. The first is the developing Canadian jurisprudence, in cases such as Young v. Young,  4 S.C.R. 3 and Gordon v. Goertz,  2 S.C.R. 27, which favours a broad and flexible approach to the best interests test which is child centred, focusing on the child’s perspective, not that of the adults involved. The second is the ratification by 2.1.2 Canada in 1991, with the support of the provinces, of the United Nations Convention on the Rights of Children, Can. T.S. 1992, No. 3 (“the Convention”), which, in Article 12, specifically enshrines these two legal rights to be heard. The Convention recognizes the importance of the right to be heard to children’s best interests. The third is the advent of the Charter (Part I of the Constitution Act) and in particular the equality provisions found in s. 15, prohibiting discrimination on the basis of age.
From a legal standpoint then, the question is not whether children in Canada have a right to be heard. They do. The focus in each case must be on whether the child wishes to exercise that right, and if so, whether the child is capable of forming his or her own views. If the answer to each is yes, then due weight must be given to those views. This applies to all stages of the family justice process, including mediation, collaborative law, negotiations between lawyers, judicial case conferences, settlement conferences, and court hearings or trials.
Somewhat different considerations apply in child abduction cases. The Hague Convention on the Civil Aspects of International Child Abduction, 25 October 1980, Can. T.S. 1983, No. 35, governs (Beatty v. Schatz, 2009 BCSC 706, affirmed, 2009 BCCA 310). I will consider here only the provisions of the Convention on the Rights of Children.
This paper contains an overview of the applicable legal principles. For more detailed discussions see: Interim Report of the Standing Senate Committee on Human Rights, Who’s in Charge Here? Effective Implementation of Canada’s International Obligations with Respect to the Rights of Children, November 2005; Final Report of the Standing Committee on Human Rights, Children: The Silenced Citizens, Effective Implementation of Canada’s Obligations With Respect to the Rights of Children, April 2007 (“The Senate Committee Final Report”); British Columbia Ministry of the Attorney General Family Relations Act Review, Children’s Participation, April 2007; British Columbia Ministry of the Attorney General Family Relations Act Review, Chapter 8, Children’s Participation, Discussion Paper, April 2007; Suzanne Williams, Perspective of the Child in Custody and Access Decisions: Implementing a Best Interests and Rights of the Child Test,  86 C.B.R. 633 (“Williams, CBA Article”); and Suzanne Williams, Bringing a Child-Perspective Lens to Canadian Family Justice Processes, 2008 Federation of Law Societies Family Law Program (“Williams, Federation of Law Societies Article”).