Difference between revisions of "The Rights of Children and Youth in Family Law Matters"
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{{JP Boyd on Family Law TOC|expanded = children}}{{JPBOFL Editor Badge | {{JP Boyd on Family Law TOC|expanded = children}}{{JPBOFL Editor Badge | ||
|ChapterEditors = [[Mary Mouat|Mary Mouat, QC]] and [[Samantha Rapoport]] | |ChapterEditors = [[Mary Mouat|Mary Mouat, QC]] and [[Samantha Rapoport]] | ||
| − | }}Neither the ''Divorce Act'' nor the ''Family Law Act'' talk about parenting after separation in terms of the "rights" of parents, guardians or spouses. While these individuals are entitled to ask for orders and awards about decision-making and parenting time, if they can't reach an agreement about those | + | }}Neither the ''Divorce Act'' nor the ''Family Law Act'' talk about parenting after separation in terms of the "rights" of ''parents'', ''guardians'' or ''spouses''. While these individuals are entitled to ask for orders and awards about decision-making and parenting time, if they can't reach an agreement about those things, decisions about parenting after separation must be made taking into account only the best interests of the children. In a family law dispute about parenting after separation, the people who hold the rights are the children. It's ''children'' who have the right to be raised and cared for in the best possible way, and it's children who have the right to the best possible arrangements for their parenting after separation. |
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| − | The convention describes the basic human rights that all children have, the way that human rights are described in British Columbia's ''[https://canlii.ca/t/843q Human Rights Code]'' and in the federal ''[https://canlii.ca/t/7vh5 Canadian Human Rights Act | + | |
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| + | ==The UN Convention on the Rights of the Child== | ||
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| + | Children's basic human rights are described in the [https://www.ohchr.org/en/professionalinterest/pages/crc.aspx United Nations Convention on the Rights of the Child]. This international agreement was passed by the United Nations' General Assembly — the parliament of the United Nations — in 1989 and was signed by Canada in 1991. The convention has the force of law in Canada, and Canadian laws must be interpreted and applied in a way that fits with the requirements of the convention. | ||
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| + | The convention describes the basic human rights that all children have, the way that human rights are described in British Columbia's ''[https://canlii.ca/t/843q Human Rights Code]'' and in the federal ''[https://canlii.ca/t/7vh5 Canadian Human Rights Act]''. In addition to the rights that adults have, the convention says that children also have the right to: | ||
#be free from physical and mental violence, abuse and mistreatment, | #be free from physical and mental violence, abuse and mistreatment, | ||
#be protected from exploitation, | #be protected from exploitation, | ||
#know and be cared for by their parents, | #know and be cared for by their parents, | ||
| − | #access | + | #access information and an education, |
#an adequate standard of living, and | #an adequate standard of living, and | ||
#health care and adequate nutrition. | #health care and adequate nutrition. | ||
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<blockquote><tt>2. 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.</tt></blockquote> | <blockquote><tt>2. 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.</tt></blockquote> | ||
| − | Perhaps most importantly, at least from a family law perspective, article 12 talks about children's right to express their views to | + | Perhaps most importantly, at least from a family law perspective, article 12 talks about children's right to express their views to those who are making decisions about their care: |
<blockquote><tt>1. 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.</tt></blockquote> | <blockquote><tt>1. 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.</tt></blockquote> | ||
<blockquote><tt>2. 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.</tt></blockquote> | <blockquote><tt>2. 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.</tt></blockquote> | ||
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Revision as of 17:41, 4 April 2021
Neither the Divorce Act nor the Family Law Act talk about parenting after separation in terms of the "rights" of parents, guardians or spouses. While these individuals are entitled to ask for orders and awards about decision-making and parenting time, if they can't reach an agreement about those things, decisions about parenting after separation must be made taking into account only the best interests of the children. In a family law dispute about parenting after separation, the people who hold the rights are the children. It's children who have the right to be raised and cared for in the best possible way, and it's children who have the right to the best possible arrangements for their parenting after separation.
Contents
The UN Convention on the Rights of the Child
Children's basic human rights are described in the United Nations Convention on the Rights of the Child. This international agreement was passed by the United Nations' General Assembly — the parliament of the United Nations — in 1989 and was signed by Canada in 1991. The convention has the force of law in Canada, and Canadian laws must be interpreted and applied in a way that fits with the requirements of the convention.
The convention describes the basic human rights that all children have, the way that human rights are described in British Columbia's Human Rights Code and in the federal Canadian Human Rights Act. In addition to the rights that adults have, the convention says that children also have the right to:
- be free from physical and mental violence, abuse and mistreatment,
- be protected from exploitation,
- know and be cared for by their parents,
- access information and an education,
- an adequate standard of living, and
- health care and adequate nutrition.
Article 3 of the convention talks about making decisions according to the best interests of children:
1. 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.
2. 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.
Perhaps most importantly, at least from a family law perspective, article 12 talks about children's right to express their views to those who are making decisions about their care:
1. 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.
2. 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.
Resources and links
Legislation
- Family Law Act
- Divorce Act
- Federal Child Support Guidelines
- Provincial Court (Family) Rules
- Supreme Court Family Rules
Links
- Ministry of Attorney General's website "Criminal Record Check BC"
- Canadian Police Information Centre (CPIC)
- Grandparents Raising Grandchildren Support Line
- Clicklaw Common Question on Benefits for Grandparents Raising Grandchildren
- Dial-A-Law Script "Custody and Access, Guardianship, Parenting Arrangements and Contact"
- Legal Services Society's Family Law website's information page "Children"
- Legal Services Society's Family Law website's information page "Parenting & Guardianship"
- Legal Services Society's fact sheet "How to Become a Child's Guardian"
- BC Ministry of Attorney General's website "Support and Resources for Dealing with Separation and Divorce"
- BC Ministry of Children and Family Development's website "Extended Family Program"
- Canadian Bar Association's Successfully Parenting Apart: A Toolkit
| This information applies to British Columbia, Canada. Last reviewed for legal accuracy by JP Boyd, April 4, 2021. |
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 JP Boyd on Family Law © John-Paul Boyd and Courthouse Libraries BC is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Canada Licence.
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