This was a case regarding an existing custody and child support Order heard in the Yukon Territories Supreme Court. The parties divorced in 2000. At the time, they had consented to an Order that the mother would have sole custody of the child and the child would primarily reside with her.
In 2009 when the child was 12 years old, he asked his mother if they could amend the parenting schedule so that he would spend alternating weekends with each parent. The mother was in agreement and this parenting schedule began. The father and mother brought an application to vary the terms of the Order. The evidence that was brought before Justice Martinson did not include any information relating to the child’s views or his wishes to express them. As such, the issue of whether the Court should have heard from the child was raised and discussed.
Justice Martinson was of the view that all children have a legal right to be heard in all matters which may affect them, including custody cases such as this one. This right applies to all children eighteen (18) years of age and under. Justice Martinson based her reasoning on the United Nations Convention on the Rights of the Child (the Convention) and Canadian domestic law. The Convention was ratified in Canada with the support of the provinces in 1991. Although Canada has not chosen to incorporate the provisions of the Convention directly into domestic law, the domestic law still complies with the Convention and the provisions of the Divorce Act are presumed to reflect the principles found in the Convention.
The Convention states that hearing the child’s views is in their best interests because this may lead to a better overall decision to be made for the child. Justice Martinson went on to say that children have legal rights to be heard during all parts of the judicial process including judicial family case conferences, settlement conference and court hearings or trials. There is no exception made for high conflict cases such as ones dealing with parental alienation, domestic violence or both. However, the court should inquire as to whether the child is capable of forming his/her own views and whether the child would like to participate in this process. If they wish to participate, then their views should be given weight in accordance with their age and maturity.
Justice Martinson stated the following in her judgment:
“Because of the importance of children’s participation to the quality of the decision and to their short and long term best interests, the participation must be meaningful; children should:
- be informed, at the beginning of the process, of their legal rights 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; and
- be informed of both the result reached and the way in which their views have been taken into account.
Justice Martinson stated that having the child involved can lead to information on a wide range of topics relevant to the dispute such as schedules, the amount of time spent with each parent, extra-circular activities and lessons, vacations, schools schedules and so forth and how the parties can make these decisions work best for the child. It also reinforces the child that his/her opinion matters. The evidence can be presented through a neutral third party such as a psychologist, a social worker, psychiatrist or a representative of the child. In some circumstances judicial interviews may be appropriate, where the judge interviews the child in order to obtain more information about the child.
Although there is still much debate and controversy about the importance of hearing from children in judicial proceedings, there is a growing recognition that since the child becomes involved in the outcome, his/her wishes should be considered. In this particular case, the judge took the child’s views into consideration and amended the existing custody order to alternating weekends with each parent. However, the judge did so based on the child’s wishes expressed to his mother. The child did not wish to have his views conveyed to the court and as such did not have to.