THE VOICE OF THE CHILD IN DIVORCE, CUSTODY AND ACCESS PROCEEDINGS

INTRODUCTION

In Canada, legislative power with respect to family law is divided between the provincial governments and the Parliament of Canada.  By virtue of section 91(26) Constitution Act,[1] the federal government has jurisdiction over marriage and divorce.  Section 92(13) of the Constitution Act vests power in the provinces to enact laws pertaining to property and civil rights.  As stated by the Supreme Court of Canada in Reference Re Section 6 of The Family Relations Act,[2] custody and access fall within provincial jurisdiction by virtue of the power in section 92(10).  It is important to note that for matters incidental to divorce, which include custody and access as corollary relief, Parliament has jurisdiction.[3]  Thus, legislative power in the area of family law is shared between the two levels of government.

Historically, children in Canada have been denied the opportunity to participate in decisions of custody and access.[4]  Several reasons have been relied upon as justifications for excluding children from this process.  It has been argued that parents are capable of putting forth their children's views in legal proceedings involving divorce, custody and access.  As one academic states, "In Canada, it is assumed that in most divorce cases, a child's interest in custody can be protected by the court having heard the arguments of both parents."[5]  Moreover, members of the judiciary, and professionals such as social workers, psychologists and psychiatrists have subscribed to the view that children will be psychologically damaged if they participate in the process.  A further reason for denying children the opportunity to directly express their preferences and wishes in family law matters has been that, traditionally, children were not considered to have rights independent of their parents.

The role of the child in family law disputes is undergoing re-examination.  It is recognized that a child's perspectives may not be conveyed to the court if counsel for the parents are the sole parties putting forth the evidence.  Parents in the midst of a divorce or separation may be vengeful, angry or self-absorbed, and consequently, may not be capable of adequately presenting the views, interests and wishes of the child to judicial decision-makers.[6]  It has also been asserted that prohibiting the child from participating in the process may have life-long adverse repercussions on the child.  In recent years, some academics, judges and practising lawyers[7] have taken the position that it is in the best interests of children that "they participate in decisions that affect them and that they be listened to and taken seriously." As Judge Nasmith states:[8]

Another myth that needs to be dislodged is that harm befalls a child from participating in the decision-making process.  This has often been a rationalization for leaving the child's voice out.  Some experts feel it can be harmful for the child to be left out of the decision-making process.  The more paternalistic approach overlooks the reality that the child is already harmed by the turmoil in his home and the stress that litigation has brought upon everyone.

It is argued that children must "become players in decisions that concern them, so that decisions are made with them rather than about them."[9]  The legal system must not "muffle" the child's voice; it must err on the side of inclusion rather than exclusion of the child's views.[10]  This will contribute to their self-esteem and grant to children the respect to which they are deserving.[11]  It is fundamental to note that the child's preferences and wishes alone will not determine the outcome of the court decision, but rather will be weighed with other evidence presented to the court.[12]

A further reason for reassessment of the child's role in family law proceedings is the relatively new perception that children have independent rights.  Central to a child-centered approach is the notion that children are legal subjects as opposed to legal objects.[13]  This involves, according to commentators, "a philosophical shift from seeing children as extensions of their parents or in the extreme as property of their parents, to seeing them as legal entities in their own rights."[14]  In other words, children are to be considered as "subjects actively involved in the legal process" rather than objects "over which a legal battle is fought."[15]

In 1997, a Special Joint Committee of the House of Commons and the Senate was established by the Government of Canada.  The mandate of the Joint Committee was to examine issues related to custody and access and "in particular to assess the need for a more child-centered approach to family law policies and practices."[16]  The Joint Committee held public hearings at different locations throughout the country.  Children, parents and professionals from various disciplines such as lawyers, social workers and psychologists testified before the Committee.

A consistent theme that emerged from the testimony was the need to devise means of ensuring that children participated in decisions regarding custody and access.  At the hearings, children and youth said they did not wish to be excluded from proceedings that would have a significant impact on their lives.  They asserted that in contrast to their parents, children did not have easy access to lawyers to help them articulate their views to judicial decision-makers.  They also said that they lacked the support systems available to their parents.[17]  Lawyers and mental health professionals who offered testimony at the Committee hearings agreed that it was important for children to have a "voice" in divorce, custody and access proceedings.

In December 1998, the Committee released its report, For the Sake of the Children.  The Committee stated that measures must be taken to include children in family law decisions.  Reference was made to Article 12 of the United Nations Convention on the Rights of the Child which explicitly states that children have a right to express their views freely in matters that affect them.  The Committee concluded that if children were not consulted about these decisions, and if they were denied the right to participate in the decision-making process, they would not readily accept the custody and access arrangements imposed upon them.  In the opinion of the Committee, this could have "dire consequences" for the child with "long-term mental health and other negative implications."[18]

The Special Joint Committee made 48 recommendations.  Recommendations 3 and 4, reproduced below, are addressed to the participation of children in divorce, custody and access proceedings.  They state:[19]

The objective of this paper is to examine ways in which the voices of children can be heard in the context of divorce, custody and access disputes.  At the outset, discussion will be provided regarding the dichotomy between child protection and the promotion of children's rights.  An examination of Article 12 of the United Nations Convention on the Rights of the Child[20] will also be undertaken.  The notion that children should have the right to independent legal representation will next be explored.  Three different models of legal representation will be canvassed.  The paper will also examine methods by which the voice of the child can be heard directly by the court.  A discussion will ensue on the transmission of the views, interests, and wishes of the child by third parties to legal decision-makers.  Woven throughout the sections are suggestions to policy makers and legislators concerning support mechanisms and advocacy services that should be available to children.  Proposals contained in this paper will enable the federal and provincial governments to consider ways in which children can be given the opportunity for more direct involvement in family law proceedings.  It is a central thesis of this paper that children be given real, and not merely symbolic, roles in legal hearings that affect their lives.[21]

The following words from members of the judiciary in British Columbia and Ontario merit consideration:

If we learn as much as we can about the children of relationship, their needs, their affective ties, their capabilities, their interests, or as much as we can about the abilities of those adults willing to care for them, we will be able to make orders that will best take advantage of the adult abilities available to fulfill the child's needs.  To accomplish this task requires that we hear the voice of the child.[22]

We must not be afraid of the truth; we must allow the child's voice to be heard.  We must have definitions and guidelines from the legislatures as well as clear and consistent rulings from the courts to entrench the child's rights to be heard if we are to continue the slow march towards integrity in family law.[23]


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