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 adults who fit into these categories are entitled to ask for orders and awards about decision-making and parenting time, if they can't reach an agreement about those things on their own, decisions about parenting after separation must be made taking into account only the best interests of the children, including the children's views and preferences. 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.

Introduction

The rights children and youth have in family law disputes can be boiled down into two categories: the human rights children and youth have, under Canada's human rights laws and the United Nations Convention on the Rights of the Child; and, the legal rights children and youth have as people who are impacted by their parents' dispute, under the federal Divorce Act and the provincial Family Law Act. Of course, it's important to remember that in British Columbia a "child" is someone who is younger than 19, the age of majority in this province under the aptly-named Age of Majority Act. As a result, someone who is technically a child can also be a parent, a guardian or a spouse. The rights that youth who are parents, guardians or spouses have are the same rights that adults who are parents, guardians or spouses have.

The human and legal rights of children and youth are just as important as the human and legal rights of adults, perhaps even more important because of the vulnerability resulting from their age. However, it's really important that adults remember that the human and legal rights of children exist for the benefit of children. I have too often seen parents running the "rights" of their children up the flagpole in their family law dispute, trying to use their children's rights to benefit their own position in court or before an arbitrator. This happens most frequently where parents are engaged in an extraordinary degree of conflict with each other, often but not always in cases where the alienation or estrangement of a child from a parent is a recurring theme in the legal dispute between the parents.

It is important to recognize and honour children's human and legal rights. It's also important to make sure that parents don't use children's rights only as a way of getting what they want in their legal dispute.

In this section, we'll talk about the human and legal rights of children and youth, and how those rights relate to family law disputes between their parents.

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 rules and 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:

1. be free from physical and mental violence, abuse and mistreatment,
2. be protected from exploitation,
3. know and be cared for by their parents,
4. access information and receive an education,
5. an adequate standard of living, and
6. 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.

This rule applies to criminal, civil and other court cases, including family law cases, adoption cases, child protection cases and cases about wills and estates. In a 2010 decision of the Yukon Supreme Court, B.J.G. v. D.L.G., the court talked about how the rule applies in family law cases, and said that:

"There is no ambiguity in the language used. The Convention is very clear: all children have these legal rights to be heard, without discrimination. It does not make an exception for cases involving high conflict, including those dealing with domestic violence, parental alienation, or both. It does not give decision makers the discretion to disregard the legal rights contained in it because of the particular circumstances of the case or the view the decision maker may hold about children’s participation"

That's a pretty strong statement. The judge continued and said that, under the convention, children have the right to:

1. be informed, at the beginning of the process, of their legal right to be heard,
2. be given the opportunity to fully participate early and throughout the process, including being involved in judicial family case conferences, settlement conferences, and court hearings or trials,
3. have a say in the manner in which they participate, so that they participate in a way that works effectively for them,
4. have their views considered in a substantive way, and
5. be informed of both the result reached and the way in which their views have been taken into account.

The Divorce Act

The Divorce Act talks about parenting after separation in terms of decision-making responsibility and parenting time. If you look carefully at how the act defines these two terms, you can see that these aren't about the rights of parents but the entitlement of children and youth to be raised well. Section 2(1) of the act defines "decision-making responsibility" as "the responsibility for making significant decisions about a child’s well-being." It defines "parenting time" as the time that a child spends in the care of a spouse, not the time that a spouse spends with their child.

When the court makes decisions about decision-making responsibility and parenting time, section 16 of the Divorce Act says that "the court shall take into consideration only the best interests of the child," and "give primary consideration to the child’s physical, emotional and psychological safety, security and well-being." Section 16(3) says that "in determining the best interests of the child, the court shall consider all factors related to the circumstances of the child," and then provides a list of 11 specific factors that the court must consider; another eight factors are listed in section 16(4) that need to be considered when family violence is an issue. Among the 11 section 16(3) factors is this:

(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained

As you can see, this supports the obligation under article 12 of the United Nations Convention on the Rights of the Child to give children and youth "the opportunity to be heard" in legal disputes affecting their interests.

It also creates something that lawyers call a "rebuttable presumption." A rebuttable presumption means that something is presumed to happen unless someone can show why that thing shouldn't happen. The presumption, in this case, is that a child's views will be taken into account when deciding what is in their best interests. Someone who doesn't want the child's views to be taken into account can rebut the presumption by proving that the child's views "cannot be ascertained." But without that rebuttal, the law requires children's views to be heard and considered when making decisions about their best interests. Children have the right to be heard in disputes between their parents about decision-making responsibility and parenting time.

The Family Law Act

The Family Law Act takes the same child-centred approach as the Divorce Act, using the terms parental responsibilities and parenting time. It also says, at section 37(1), that when making decisions about parenting after separation "the parties and the court must consider the best interests of the child only," and provides a list of specific factors to consider at section 37(2). (The factors that must be considered when family violence is an issue are listed in section 38.) Among the section 37(3) factors is this:

(b) the child's views, unless it would be inappropriate to consider them

Like the Divorce Act, this provision also supports the obligation to hear from children and youth under the Convention on the Rights of the Child. It also creates a rebuttable presumption that the children's views will be heard. Someone who doesn't want the child's views to be taken into account can rebut the presumption by proving that it would be "inappropriate to consider" the child's views. Otherwise, the law requires children's views to be heard and considered when making decisions about their best interests.

However, the Family Law Act says a few more things about children and youth.

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.

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.