Introduction
We are glad that you have clicked in to read this article. You are here because you, just like us, firmly believe in children’s right to have their voices adequately and properly heard in family law disputes.
Indeed, the children’s right to have their voices heard is clearly stated in Article 3 of the United Nations Convention on the Rights of the Child (“UNCRC”). Article 12 of the UNCRC further outlines the right of children to participate in legal proceedings that affect them. The UNCRC came into force on September 2, 1990 and was ratified by Canada in 1991.
In Canada, both the Divorce Act (federal legislation) and the Family Law Act (BC provincial legislation) contain provisions that require the court to consider the need to consider a child’s best interests. In fact, section 16 of the Divorce Act is exactly titled: “Best Interests of the Child.” It says:
- The court shall take into consideration only the best interests of the child of the marriage in making a parenting order (who should be the child’s parent and if more than one parent, who should have the child for how long and how often) or a contact order (aside from the child’s parent(s), who else gets to see and spend time with the child).
- In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, and among these factors is the child’s views and preferences.
Turning to BC’s Family Law Act, we also find a section titled “Best interest of the child” – section 37. It says:
- In making an agreement or order respecting guardianship, parenting arrangements or contact with a child, the parties and the court must consider the best interests of the child only.
- To determine what is in the best interests of a child, all of the child’s needs and circumstances must be considered, including the child’s views, unless it would be inappropriate to consider them.
As you can see, the legislators of our province and our country have used very strong words in the statutes: “best,” “only,” and “all.” However, these are easier said than done.
What if the parents disagree on what is best for their children? What if the children are unable to articulate their views and preferences, because they are not mature enough to understand their own needs, or perhaps they are afraid of expressing their true feelings as they perceive doing so may disappoint or even anger one of their parents? What if two parties in a family law dispute are pushing a court to make a parenting order, but the judge has never heard from the children yet so the judge frankly does not know what the children want – should the judge simply take what the parents say at face value?
Often parents will provide evidence as to a child’s views, however a parent may dilute a child’s views by supplanting their own assessment of what is best for their child. Fortunately, the legal system provides four ways for various parties involved in a family law case – parents, lawyers, mediators, arbitrators, and also the judges – to hear the true voices of the children, and to inform the outcome of a case.
These four ways are:
- Hear the Child Report (“HTC Report”);
- Section 211 Report (under section 211 of BC’s Family Law Act);
- Children’s Lawyer; and
- Judicial Interview.
Although all the above mechanisms exist for one common purpose: for the children involved in family law matters to be heard, they are initiated and performed by different people/entities, and the end products may serve different purposes.
The rest of this article provides a general overview of each of the four options. If you ever feel in doubt about which option (or a combination of options) may serve you and your children the best, our experienced Hear the Child Report Writers, Children’s Lawyers and family lawyers at Lindsay Kenney LLP are more than happy to provide the legal assistance tailored to you and your children’s needs.
Hear the Child Report (“HTC Report”)
Sometimes the court wants to hear the child, but the child is not able to, for all sorts of reasons, testify in person at the courthouse. How would the court still hear the child then? Well, a Hear the Child Report (“HTC Report”) can help.
An HTC Report is non-evaluative in nature. The parties in a family law matter can mutually agree to have an HTC Report prepared for their children, or a court can order a report be done. HTC Reports then become the child’s evidence the court may consider, as if the judge is hearing what the child wants to say – which is put down in writing.
The “non-evaluative” part is key: HTC Reports are limited to what the child has told a neutral third-party interviewer. The interviewer does not offer their own opinion, and these reports may be prepared by anyone with special training in interviewing children, including lawyers, social workers, counsellors, and psychologists.
HTC Reports have been gaining increasing popularity in court recently. If parents cannot agree on what their children want, or if the parents agree that their children’s views are important but neither parent can objectively speak on behalf of their children (e.g., due to the parent’s own bias), then having a neutral interviewer to speak directly with the children, in a private setting, then prepare an HTC Report, can be a wise choice.
HTC Reports are prepared by members of the Hear the Child Society. The Society manages a roster of non-evaluative child interviewers who have completed specific training in interviewing children. The interviewers are also guided by practice guidelines issued by the Hear the Child Society Board.
Section 211 Report
You now know that Hear the Child Reports are non-evaluative and are basically a written presentation of the children’s views to the court. In contrast, section 211 reports include the writer’s opinion after the writer has assessed the children’s views, needs, and also the parents’ circumstances.
Compared to the HTC Reports, section 211 reports are more time-consuming and more costly. The interview and assessment process involved in preparing a section 211 report can also be more intrusive, as in this case, the writer is evaluating the family’s dynamics more closely.
These reports are made available under section 211 of BC’s Family Law Act, hence the name “section 211 reports.” This section allows the court to appoint a person to assess and report on the children’s needs, and whether a person (e.g., a parent) can meet the child’s needs. The court then considers a section 211 report when making a decision with respect to the care of, and the time with, the children included in the report.
Like the Hear the Child Report, the parties in a family law matter can mutually agree to have a section 211 report prepared for their children, or a court can order the reports. To convince the court to order a section 211 report, a party must establish that the report is necessary and in the best interests of the child. For example, why is a non-evaluative, Hear the Child Report not enough, and is a more expensive section 211 report really a must given the family’s resources (e.g., time and money)?
Section 211 report writers can be a family justice counsellor, a social worker, or other court-approved individuals (e.g., a psychologist or registered clinical counsellor). The recommendations made by the writer in the section 211 report are not binding, but a judge does consider the report within the full context of all the evidence before the court.
Not all section 211 reports are the same. Some reports are prepared after a comprehensive investigation into all matters concerning the children involved in family law disputes, while other reports can have a narrower scope, for example, limited to assessing particular aspects of the children’s views. The exact scope of a particular section 211 report can be defined by both parties’ agreement or ordered by court.
A Comprehensive Section 211 Report. The label “comprehensive” refers to both the broad scope of the report and the granularity evident in the author’s detailed assessment of family dynamics. For example, if appropriate, the report writer can interview each parent privately, each child privately, then observe the children in each parent’s presence one at a time. Do the children exhibit different behaviour patterns in a different way when they are on their own, versus when they are with one parent or another? Parsing out these variables helps the writer see a fuller picture of the family’s dynamics, including how the children interact with their parents. Of course, children’s growth environment extends beyond the household. For this reason, the comprehensive reporter would also interview the children’s teachers, and even the parents’ new partners (if any, and particularly if the new partners can have contact with the children). If the writer is a qualified psychological expert, the writer can also perform psychological testing on the parents. The writer can also review other materials including court documents involved in the particular family law dispute. In the end, a comprehensive report outlines the writer’s observations and corresponding recommendations.
A Limited-Scope Section 211 Report. These limited reports are also known as “Views of the Child Reports” (“VOTC Reports”). Do not confuse a VOTC Report with a Hear the Child Report (“HTC Report”). In one way, both types of reports are similar: they are both limited to reporting the children’s views, and neither includes recommendations concerning parenting issues. However, HTC Reports, as previously discussed, are non-evaluative in nature. On the other hand, VOTC Reports, prepared under section 211, can contain some evaluative elements. For example, while things like “Amy prefers to live with her mom” can be found in either a VOTC Report or an HTC Report, only in a VOTC Report can the writer add an additional cautionary observation such as: “Amy’s preference is likely a product of her mother’s one-sided influence and may not reflect what Amy truly feels about her father.” Of course, if the parties see fit, a VOTC Report can also be done in a non-evaluative manner, and in that case, there is no longer a clear cut between VOTC Reports and HTC Reports.
In summary, HTC Reports and section 211 reports, although similar to some extent, indeed have important differences between them. In a BC Supreme Court case called E.A.B. v. K.J.B., 2016 BCSC 1167, Master Carolyn Bouck provided a high-level summary capturing the main difference between these reports:
[26] As now enshrined in the FLA, a child at the centre of a parenting dispute has a legal right to be heard by the court… The child’s views with respect to parenting issues may be expressed to the court indirectly or directly. One method of receiving those views indirectly is through a Hear the Child report. This type of report does not provide an analysis of the child’s views as they might impact parenting arrangements or responsibilities. Nor does the author of the report make any recommendations with respect to parenting of the child.
[27] In contrast, a report ordered under s. 211 is intended to be a more comprehensive investigation of parenting issues and may include recommendations on the parenting arrangements that will meet and promote the best interests of the child. A s. 211 report is not ordered in every family law proceeding involving children.
Children’s Lawyer
Up to this point, we have only looked at how courts can hear the children based on written reports. You may wonder: can parents retain their own lawyers to advocate their position, are there also lawyers who can act as advocates for the children in a courtroom?
The answer: Children’s Lawyers. In contrast to lawyers in most family law proceedings, a Children’s Lawyer only represents a child and does not represent either of the parents in the dispute. This ensures the child has a lawyer advocating for their unique needs and wishes, and that those needs and wishes are given the appropriate weight considering the child’s age and maturity.
In Dormer v. Thomas (1999), 65 B.C.L.R. (3d) 290, the court discussed three ways in which a Children’s Lawyer can be involved in family law proceedings, stating that there is no one preferred model:
- As the child’s advocate, where the lawyer takes instructions from a child, is obligated to advance the child’s wishes and must present the child’s desires;
- As a litigation guardian, where the lawyer considers a child’s instructions but ultimately acts in accordance with the child’s best interests; and
- As an amicus curiae, or friend of the court, where the lawyer assists the court and ensures all evidence and arguments relating to the child have been appropriately presented.
Although a child is not typically a party to family law proceedings, children are impacted by their parents’ separation. A Children’s Lawyer can ensure that a child’s perspective, best interests and lived realities are made known and thoroughly considered in family law proceedings when determining interim and post-separation orders affecting the child.
Benefits of a Children’s Lawyer
Children’s Lawyers take a unique approach to representing and communicating with their young clients, including adjusting their approach to meet the child’s age and maturity level when interviewing, explaining legal proceedings and taking instructions from them. Different children will understand legal issues and instructions at different levels, and a Children’s Lawyer can tailor their communication to meet each child’s particular needs. Children’s Lawyers also need to account for varying levels of competence across their clients, and provide additional assistance in formulating a strategy moving forward.
Separation can be a challenging time for both children and adults. A separation can affect all aspects of a child’s life, and complex legal proceedings can present additional confusion and uncertainty. A Children’s Lawyer can help de-mystify the law and legal process for children and ensure a child’s voice is heard during this crucial time.
The benefits of having a Children’s Lawyer include:
- Ensuring the child has an advocate who is experienced in clear and consistent communication regarding complex legal issues and post-separation outcomes;
- Ensuring the child’s lived reality is made known throughout the family law dispute;
- Providing an opportunity for the child to ask the Children’s Lawyer legal questions without the concern of receiving a biased answer;
- Allowing the child to be an active participant in legal proceedings that affect their lives both during and after separation;
- Empowering children to be actively involved in problem-solving;
- Providing the court and the parents with accurate and relevant information regarding the child’s views; and
- Ensuring a fair legal process for both the child and the parents.
Other Ways a Children’s Lawyer Can Get Involved
A Children’s Lawyer can also assist in cases where a child does not require full legal representation. For example, a Children’s Lawyer can assist by providing the court and parents with information about the child’s views and preferences. This can include providing direct or written evidence from the child, participating in dispute resolution so a child’s views are heard, for example in mediation, or referring the child to a mental health specialist.
A Children’s Lawyer can also provide a child with independent legal advice, for example in adoption.
While a Children’s Lawyer can provide a variety of services, each family law matter is different and each child requires a unique approach. The first step in seeking representation for a child is to meet with a Children’s Lawyer to determine your specific legal issues and how a Children’s Lawyer can best help you reach your goals. If you feel your child may benefit from having a Children’s Lawyer, or if you are unsure whether this is the case, we encourage you to get in touch with us via phone or email for an initial consultation.
Judicial Interview
At this point you might wonder: all the three methods we have discussed above involve someone else (e.g., a report writer or a Children’s Lawyer) making submissions in court on behalf of the children. Do judges ever hear directly from the children themselves?
The answer is yes. However, this does not occur very often.
Justice Claire L’Heureux-Dubé (who served as a puisne justice at Canada’s highest court – the Supreme Court of Canada) and Justice Rosalie Abella (who is currently a Supreme Court of Canada justice), both opined that a judicial interview should be used only as a last resort. This is because a judge’s direct interview with children could interfere with a judge’s role as an impartial decision-maker.
The report writers and Children’s Lawyers, before they got such titles, have all received some specialized training that helps them look at, listen to, and speak on behalf of the children more effectively. You would recall that some reports are prepared by psychologists, and arguably these people are the experts who understand a child’s mind more than anyone else who does not have the same specialized expertise. A judge, with due respect, may lack this very type of training or expertise. In this regard, a judge’s reluctance to hear directly from the children and make a decision based solely on the judge’s own interview with the children, is precisely a product of the judge’s pure respect for the children, and it is also for the children’s utmost protection.
Concluding Thoughts
At Lindsay Kenney LLP, we, as family lawyers, hear from adult clients who complain: “things with my ex are just too complicated – I can’t even put them into words for you.”
We agree. Separation, or any type of disputes within a family, can be complicated, multi-faceted, and emotionally damaging for everyone involved. We believe that at the earliest opportunity, parties should determine when and how their children’s voices will be heard in a proceeding. This helps to resolve disputes earlier and ensures that any agreements or orders made incorporate a child’s views where appropriate.
If you step back for a moment, you would have realized: if the same problem is causing well versed adults difficulty to effectively expressing themselves, how can we expect the children to independently, freely, and meaningfully contribute their thoughts? We need to collect the essential piece of the puzzle from the children, so that we can steer the wheels toward an overall solution that is best for everyone involved – or, at least, not so damaging to the children, who are undeniably the most vulnerable in every aspect.
The urgent need to hear the children’s views can be met by one or more of the options above. As you would have seen, making a choice among those options is not a straightforward exercise. The children’s age, developmental capacity, current living arrangements with the parents or other members of the household, the relationship between the litigating parties themselves… should all be taken into consideration. Equally as important is the end goal: what are we trying to achieve by making use of one particular method of the four discussed above, and what are the advantages and disadvantages associated with each option?
Our family lawyers, Children’s Lawyers and Hear the Child Report Writers are dedicated to an unwavering commitment to the overall wellbeing of the children who are often unwillingly brought into family law disputes.
For assistance with having your children heard, as part of your family law dispute, please reach out to any of our Children’s Lawyers.
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Derek Zhang Articling Student | Family Law Vancouver |
This article is intended to be an overview of the law and is for informational purposes only. Readers are cautioned that this article does not constitute legal or professional advice and should not be relied on as such. Rather, readers should obtain specific legal advice in relation to the issues they are facing