Family Law

Family breakdown can victimize children in many ways. It can effectively deprive them of a parent. It can have them living in poverty. It can result in abuse. And it does all this without allowing them an adequate voice. Where children’s rights are at stake, perhaps more than anywhere else, reactive legal solutions are inadequate. It takes pro-active attitudes in lawyers and judges to bring children’s problems to light and to find solutions to them.

Rt. Hon. Beverly McLachlin, C.J.C., “Reaction and Pro-action:
Bringing Family Law Advocacy Into the 21st Century”
Family Law Dinner, Ontario Bar Association
January 24, 2002, Toronto

With children so reliant on the adults around them to realize their rights in family law, responsibility rests with the adults – parents, lawyers, judges, mediators, counsellors, child specialists - to facilitate this realization. This includes supporting a child’s meaningful participation in these matters which so directly and profoundly affect them.

Child rights are directly engaged in family law disputes in many ways, such as when the child:

  • Is the subject of court proceedings because their parents’ relationship has broken down, but the child is not a party
  • Seeks relief for themselves in the family justice system such as where they are parents or spouses, or where they seek some emancipation or support relief, in their own right
  • Is made a party to a proceeding (mostly in child protection cases where the child reaches a certain age)
  • May have counsel appointed for them, either as counsel or as amicus curiae for the court
  • Has their name or status affected (e.g. adoption, immigration, marriage, divorce)
  • Has their own property or decision-making at stake (e.g. medical care)

The common law evolved from children as chattels to a focus on the protection of children’s best interests but is still evolving in recognizing children as subjects with rights within family law. There is a tendency to want to keep children out of the process, with only provincial/territorial child protection legislation allowing children over 12 years to participate or be parties. Even then, it is not automatic and heavily dependent on an adult informing the child and helping to facilitate the child’s participation. 

Neither the Divorce Act nor provincial/territorial legislation speak of a child’s rights, but rather of a child’s best interests, which is but one of the bundle of rights held by the child under the Convention on the Rights of the Child (CRC.) 

Superior Courts have the ability to draw on their parens patriae jurisdiction to act in the child’s best interests while parents are obliged to do the same at law, under their fiduciary duty. The adults are the predominant actors in family law rather than children themselves, despite the children being profoundly impacted.

International Law

The following CRC articles may become a focus in family law:

Article 3- best interests a primary consideration in all actions concerning children

Article 5: recognizes parents’ (and others’) responsibilities, rights and duties to provide direction and guidance to the child in the exercise of their rights consistent with the child’s evolving capacity

Article 9: right not to be separated from parents, except by competent authorities and when in the child’s best interests; and if separated, right to maintain contact with both parents on a regular basis, except if contrary to the child’s best interests

Article 12: right to be heard and considered in all matters affecting the child

Article 18(1): recognizes both parents’ (and guardians’) role: parents (guardians) are primarily responsible for the child’s upbringing and development with the best interests of the child as their basic concern

Article 19: protection from all forms of violence

Article 27: right to an adequate standard of living

Article 35: protection from abduction

Article 36: protection from all forms of exploitation

Sources of interpretation

Canadian Law

  • The Divorce Act, R.S.C. 1985 (2nd Supp.) c. 3, s. 16(8)
    The only consideration in making a custody or access order about a child is the child’s best interests, “as determined by reference to the condition, means, needs and other circumstances of the child”; one factor being the child’s views (Gordon v. Goertz, [1996] 3 S.C.R. 27, and relevant provincial/territorial statutes which cite the views of the child as a factor to be considered in determining the child’s best interests)
  • Federal Child Support Guidelines, SOR/97-175 (passed pursuant to Divorce Act, s. 26.1)
    The objectives of these Guidelines are:
    1. To establish a fair standard of support for children that ensures that they continue to benefit from the financial means of both spouses after separation;
    2. To reduce conflict and tension between spouses by making the calculation of child support orders more objective;
    3. To improve the efficiency of the legal process by giving courts and spouses guidance in setting the levels of child support orders and encouraging settlement; and
    4. To ensure consistent treatment of spouses and children who are in similar circumstances.

Provincial/Territorial Law

  • There are some provincial/territorial legislative provisions which recognize certain circumstances where children may be parties or have legal counsel, but these are neither automatic nor available to all children (e.g. Family Law Act, RSA 2003, c. F-4.5; Family Law Act General Regulation, Alta Reg. 148/2005; Courts of Justice Act, R.S.O. 1990, c. C. 43, s. 89(3.1))

Case Law

Best Interests of the Child

  • Young v. Young, [1993] 4 S.C.R. 3 says that in applying the best interests test:
    • The child’s best interests are the only consideration - parental rights or preferences have no role
    • The test is broad and flexible, yet must be applied objectively based on the evidence
    • The court must maximize contact between the child and both parents, unless this conflicts with the best interests of the child
  • Gordon v. Goertz, [1996] 3 S.C.R. 27, a mobility case, rejects the presumption of shared parenting, and says that Parliament entrusted the court with the best interests not of most children, but of the particular child whose custody arrangements were being determined. Each case turns on its own unique circumstances. The only issue is the best interest of the child in the particular circumstances of the case. The focus is on the best interests of the child, not the interests and rights of the parents. It is the right of children that custody and access adjudications under the Act be governed by their best interests and that it is from the child’s perspective, and not from the perspective of either parent, that his or her best interests must be assessed.
  • Robinson v. Filyk (1996), 28 B.C.L.R. (3d) 21 made clear that presumptions are incompatible with enquiries into the best interests of the child as they, “detract from the individual justice to which every child is entitled”.

Child Participation

  • B.J.G. v. D.L.G., 2010 YKSC 44 says all children in Canada have legal rights to be heard in all matters affecting them. The Court relies on the CRC and Article 12 in its thorough legal analysis and requires the child to:
    • be informed, at the beginning of the process, of their legal right to be heard
    • 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
    • have a say in the manner in which they participate so that they do so in a way that works effectively for them
    • have their views considered in a substantive way (given due weight)
    • be informed of both the result reached and the way in which their views have been taken into account
  • J. F. c. C. L., 2003 CanLII 11712 (QC CS) is a case where the Court assessed the child’s maturity
  • S.G.B. v. S.J.L., [2010] O.J. No. 3619 (O.C.A.) – a 16-year-old youth brought an application for the stay of a trial order requiring him to live with his mother. The application was allowed as the Court found he might clearly be adversely affected by the decision and was bound, or at least affected, by the order below.

Parens Patriae

  • L.E.G. v. A.G, 2002 BCSC 1455, 2002 Carswell BC 2643 (B.C.S.C.), considered Article 12 of the CRC and the Court decided it was possible for a judge to interview a child in a custody dispute being decided under the Divorce Act, even without the consent of the parents based on the Court’s parens patriae jurisdiction and its statutory duty to act in the child’s best interests.

Legal Representation

  • Droit de la famille, 1549, 1992 CanLII 2860 is about the nature of representation and the right of children to legal counsel of their choice.
  • F.(M.) c. L.(J.), 2002 CanLII 36783 (QC CA) - the Court states that the lawyer is not entitled to make recommendations to the Court contrary to the expressed wishes of the child ( para 55).
  • C.M.M. v. DGC, 2015 ONSC 2447 - the Court found that, in an application by a child under the age of 18 for child support, based on s. 33 of the Ontario Family Law Act, the original motions judge was incorrect in concluding, based on an interpretation of the family law rules, that the child required a litigation guardian.
  • Note: The Court did not use a specific child rights analysis and did not refer to the CRC in its decision. There may be ways the CRC and a child rights-based approach could support the conclusion that a capable child should not be required to have a ligation guardian. Ideally, a capable child has access to justice through the Courts and can commence an action on his or her own (ideally with the assistance of legal counsel). In this way the child can relay his or her views. A concern raised by the C.M.M. decision is that a litigation guardian need not communicate the child’s views to the Court, and this may violate CRC Article 12. Further, there is an inextricable link between child participation that contemplates hearing the views of the child in decisions affecting the child and the best interests of the child which guides decision making in family law across Canada.

Amicus curiae

  • Morwald-Benevides v. Benevides, 2015 ONCJ 532, the Court dismissed an intervener motion brought to set aside two orders appointing amicus curiae to represent the mother and father in a high conflict custody and access case. The court directed the amicus curiae to take on a role resembling that of adversarial counsel. The reasons for doing so were grounded in the need to properly adjudicate on the best interests of the child (see also C.M.G. v. D.W.S., 2015 ONSC 2201, where the court appointed amicus curiae to put together a proper evidentiary record on the conflicting positions on child vaccination when both parents were self-represented; A.A. v. B.B., 2007 ONCA 2, where amicus curiae was appointed when the Attorney General for Ontario chose not to intervene in an application for a declaration that would recognize the non-biological parent of a child born to a same-sex couple as a mother to the child).

Special Considerations

  • Child rights need to be respected in family law matters particularly when adult parties (e.g. parents) are focused on themselves and lose sight of what is happening for the children
  • Reconcile the tension between the child as a subject with rights and the traditional parental rights and responsibilities through a child rights-based analysis: the analysis starts with the child, and the context from the child’s perspective, and works outwards considering:
    • The child’s rights (including best interests) (CRC Framework, relevant law)
    • Parents’/guardians’ responsibilities, rights and duties to provide the child with direction and guidance in the exercise of their rights consistent with the child’s evolving capacity (Article 5)
    • Parents’ (guardians’) primary responsibility for the child’s upbringing and development with the best interests of the child as their basic concern (Article 18)
  • Let a child’s best interests and healthy development guide all your and other adults’ action
  • Be aware of how your actions in family law impact what happens to the child in both the immediate and long-term – e.g. minimize conflict between the adult parties for the child’s immediate and long-term well-being, including his or her long-term relationship with a parent

Practice Essentials

  • Know the difference between a child’s interests and a child’s rights - rights are found in law, are inalienable, indivisible and interdependent
  • Frame agreements and orders to recognize the child’s rights – e.g. parenting time is the child’s parenting time with parent A/B rather than parent A/B’s parenting time with child
  • Determine the best option to hear the child and consider their views in all matters affecting the child:
    • Judge/mediator/arbitrator speaks with the child directly
    • Hear the Child Interview - Purpose: non-evaluative and strictly hear the child’s views; done by a legal or mental health professional who relays what the child wants to tell the decision-maker; relatively low cost shared by the parties and completed quickly (e.g. Roster of qualified interviewers in BC): best done early on in proceedings: may be a first step to inform what’s happening for the child and his/her best interests
    • Views of the Child Interview - Purpose: mostly non-evaluative but may contain observations or recommendations of what is happening for the child beyond their views; best done by mental health professional
    • Assessment that includes the child’s views - Purpose: to assess for the court/decision-maker the child and parenting situation – more than hearing the child’s views; evaluative and done by a mental health professional; most expensive and can take a long time to complete
  • Do not prejudge whether to hear from the child – consult with the child and address concerns by the method chosen to hear from the child and let the weight given to the views address any concerns of coaching or alienation
  • Hearing from the child too often may cause undue stress for the child so take a reasonable approach that supports the child
  • Review the Child Participation and Best Interest of the Child sections of this Toolkit
  • There may be a tension between the child’s rights such as protection from harm, holistic development, and participation, so:
    • Consider all the child’s rights in context determining how to best hear from the child such as has the child already shared their views and if so how long ago; are the views still current?
    • Recognize the evolving capacity of the child: age is not the only factor in whether a child is capable of expressing his or her views
  • Keep the child’s views neutral (the process to obtain them and their results – it is in everyone’s best interests to better understand what is happening for the child): seek agreement from all parties/counsel to create an opportunity for the child to share his or her views or if necessary obtain an order from the court ordering them and emphasize to the adults the need to refrain from coaching or putting undue pressure on the child (the process is there to support the child not make things worse)
  • Communicate the role of the child and what will happen with their views to the child: hearing from children is important to inform decisions about the child but does not mean the child makes the decision; create the opportunity for the child to be heard if they wish (it is voluntary); the child need only share what the child wants to share; sharing their views is to be done freely without coaching or pressure: create the opportunity for the child to be heard but prepare the adults to know the child’s views may not be the same as their views; the views can help the parents better understand what is going on for the child and ideally help them better support the child