CHILDREN AND THE LAW Mary E. Mouat, QC
Children’s Views and Why They Matter
T
he days when children were to be “seen and not heard” are long gone.
What may be surprising is that the way their voices are heard in legal proceedings has been, until recently, challenging and haphazard. Canada has been a signatory to the United Nations Convention on the Rights of the Child (UNCRC) since 1990. Article 12 of the UNCRC specifically focuses on the voice of the child in legal proceedings. 1. [Parties to the convention] 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
By ratifying the UNCRC, Canada committed to advancing the rights of children, including giving a voice to them in legal proceedings.
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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.1 (Underline emphasis added) Canada ratified the UNCRC in 1991. By ratifying the UNCRC, Canada committed to advancing the rights of children, including giving a voice to them in legal proceedings. Despite that commitment, most of the changes to Canadian law to reflect the UNCRC have been in federal legislation under the Youth Criminal Justice Act.2 There have been relatively few changes to provincial legislation. On March 18, 2013, British Columbia’s Family Law Act 3 (FLA) came into force replacing the Family Relations Act 4 (FRA). As the FLA establishes (among other things) a new legislative scheme for the division 1 C onvention on the Rights of the Child. Adopted and opened for signature, ratification, and accession by the General Assembly Resolution 44/25 on 20 November 1989. Entry into force 2 September 1990 in accordance with Article 49. 2 S.C. 2002, c. 1. 3 S.B.C. 2011 c. 25. 4 R.S.B.C. 1996, c. 128.
The Society of Notaries Public of British Columbia
of family property and debt, initial media reports trumpeted that common law couples were as good as married in British Columbia.5 The FLA’s three central themes were generally overlooked by the press.
The FLA 1. emphasizes out-of-Court settlement for family law issues (now known as “family law disputes”); 2. changes the focus from the rights of the parties to the rights of the child; and 3. gives parties and the Courts more control over the process and options when litigation is commenced. It is the second theme above that requires the parties and the Courts to bring children’s voices in family law disputes. The FLA changed the law from a system based on parental rights to a system that focuses on parental responsibilities and children’s rights. As a result, the FLA specifically requires that children’s views be considered in family law disputes.
5 C BC News, “Common-law Couples as Good as Married in BC,” http://www.cbc.ca/news/canada/britishcolumbia/common-law-couples-as-good-asmarried-in-b-c-1.1413551. Accessed on February 14, 2017.
Volume 26 Number 1 Spring 2017
