• by Carly Mellon
Family law matters involving the best interests of the child can be highly emotional and quite stressful for the parents, family members, and children involved. As members of the vulnerable population, children deserve protection and to be considered as a full person with capacity in having their own legal rights. With recent legislative changes surrounding the welfare of children in family disputes, it is important to understand the rights that children have and the principles that govern family law proceedings involving children.
Much of the Canadian jurisprudence surrounding family law decisions that affect children stem from the values enshrined in the Convention on the Rights of the Child (CRC).1 Since Canada’s ratification of the CRC in 1990, Canadian jurisprudence has adopted its principles which since has governed the progression of the modern concept of the child. In fact, the Divorce Act specifies that the best interests of the child is the only criteria for decisions that affect children.2 Although the “best interests of the child” is not defined, matters must be conducted with regard to the child’s perspective through the consideration of a multitude of factors including psychological, physical, spiritual, emotional, and material.3 Best interests of the child is to be considered in different areas of family law such as custody, child support, and parenting time.
In consideration of the necessity to base these jurisprudential decisions from the perspective of children, it is only natural that children should be allowed to express themselves and form their own views. As provided in Article 12 of the CRC, these views should be viewed with consideration of the child’s age and maturity. This means that the child needs to be capable of forming their own views and their own opinions. The maturity of the child will affect how much weight is given to what opinions or statements the child has given. Allowing children to voice their own views not only influences family law decisions to be representative of their perspective, but it is also crucial for their social and psychological development, and overall well-being. Providing children with the opportunity to be heard could mean that the child can be interviewed by the judge or called as a witness. It is important to note that there is never any pressure on the child, or obligation, to provide testimony. The CRC only states that the opportunity to voice an opinion or view must be there. The child should always be made aware that they do have the opportunity to speak up, should they choose to.
In matters where children are at risk of potential harm, it is the responsibility of the Children’s Aid Society (“CAS”), upon request, to investigate allegations of abuse, work with family members to keep them together, and to protect children by ensuring their safety at home. If CAS is involved, it becomes their duty to determine whether a child is “in need of protection”. By definition, a child who is “in need of protection” is a child who either is neglected, emotionally or psychologically abused, is likely to be abused, or witnesses abuse in their home between adults.4 Among one of the many recent improvements to child protection legislation is the improved focus on early intervention and helping prevent children and their families from reaching crisis situations at home to begin with. Further, other improvements include increasing the oversight of professionals who provide services to children (i.e. CAS), to ensure that “children and youth receive consistent, high-quality services across Ontario”.5
To ensure the utmost protection for children who are involved in family law disputes, the rules associated with family law proceedings can be quite challenging to navigate. If you are involved in a family dispute involving children, it is always encouraged to speak with an experienced family lawyer. The staff at Frenkel Tobin LLP can help you learn more about your parental rights.
- UN General Assembly, Convention on the Rights of the Child, 20 November 1989, United Nations, Treaty Series, vol. 1577, p. 3, available at: <https://www.refworld.org/docid/3ae6b38f0.html>.
- Divorce Act (R.S.C., 1985, c. 3 (2nd Supp.)), 16(1).
- Jean-Francois Noel, The Convention on the Rights of the Child, Department of Justice, Government of Canada, available at: <https://www.justice.gc.ca/eng/rp-pr/fl-lf/divorce/crc-crde/conv2a.html>.
- Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1, subsection 74(2).
- Ontario, Ministry of Children, Community, and Social Services, “Ontario’s Legislation for Child, Youth, and Family Services”, available at: <http://www.children.gov.on.ca/htdocs/English/professionals/childwelfare/modern- legislation.aspx>.