The Rights of Children and Youth in Family Law Matters
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 issues, 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 is the children who have the right to be raised and cared for in the best possible way.
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 in 1989 and was signed by Canada in 1991. The convention is law in Canada.
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 to 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 people 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.
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Further Reading in this Chapter
- bulleted list of other pages in this chapter, linked
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