Family law disputes often involve children and can affect a child’s life both during and after a parents’ separation. At present, family law proceedings provide some ways a child’s voice can be heard, such as Views of the Child reports, 211 reports and the use of professionals to elicit a child’s views and preferences. However, a Children’s Lawyer can implement an additional level of advocacy by ensuring the child’s perspective and best interest is made known and is top of mind throughout a family law dispute.
Legal Background
The right for a child to express his or her views is clearly stated in Article 3 of the United Nations Convention on the Rights of the Child (“UNCRC”), which came into force on September 2, 1990 and was ratified by Canada in of 1991:
- In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
- States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.
- States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.
Article 12 of the UNCRC further outlines the right of children to participate in legal proceedings that affect them.
- States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
- For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.
In Canada, subsection 16(3)(e) of the Divorce Act, RSC 1985, c 3, requires the court to consider a child’s perspective when determining a child’s best interests.
In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including the child’s views and preferences, giving due weight to the child’s age and maturity unless they cannot be ascertained
In British Columbia, the Family Law Act, SBC 2011, c 25 (“Family Law Act”), provides that a child’s best interests must be considered when making orders or agreements relating to children, such as orders or agreements for guardianship, interim parenting arrangements and post-separation parenting arrangements. When considering a child’s best interests, the views of that child must also be considered when appropriate.
- 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:
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(b)the child’s views, unless it would be inappropriate to consider them;
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Sections 37(2), 201, 202, 203 and 211 of the Family Law Act further codify this universal right to hear a child’s views.
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 know 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.
For more information, please contact any member of our Children’s Law team:
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Michael Zimmerman Associate Counsel | Family Law Vancouver |
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Cassandra Drake Partner | Family Law Vancouver |
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Fanda Wu Lawyer | Family Law Vancouver |
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Emilie Ptak Lawyer | Family Law Langley |
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