Children's Voices in Access and Custody Decisions: The Need to Reconceptualize Rights and Effect Transformative Change

AuthorMaria Coley
PositionGraduated from UVic law in May 2006
Maria Coley, University of Victoria - Faculty of Law
Maria Coley graduated from UVic law in May 2006. She currently works in Victoria as a law clerk for the B.C.
Supreme Court. Before commencing legal studies, Maria worked with children and teenagers with disabilities
for six years and was an elementary school teacher for three years.
CITED: (2007) 12 Appeal 48-72
“Well, obviously it’s just stupid not to ask the kids because the whole thing is about
the kids. The whole thing”.
– Belinda, 16 years old 1
“Children speak in a highly distinctive voice, if we dare listen”.2
Custody and access decisions have a profound effect on children’s lives, and consequently
both B.C. and federal statutes direct courts to make custody and access determinations accord-
ing to the best interests of the child. The B.C. family law system superf‌icially appears child-
centric, primarily concerned with the protection and promotion of children’s interests during
familial breakdown. However, the legal system currently fails to ensure that children have an
opportunity to participate meaningfully in custody and access decisions. By neither encouraging
nor valuing their voices, the family law system marginalizes and excludes children, contrary to
their best interests.
The B.C. family law system cannot achieve “true and complete justice”3 without mean-
ingful inclusion of children’s voices in judicial processes. Achieving such meaningful inclusion
requires both the creation of opportunities for children to share their concerns, feelings and
interests and a transformative change to the family law system so that children’s views can be
1 Megan Gollop, Nicola Taylor & Anne Smith, “Children’s perspectives of their parents’ separation” in Anne Smith, Nicola
Taylor & Megan Gollop eds., Children’s Voices: Research, Policy and Practices (Auckland: Pearson Education New Zealand
Limited, 2000) 134 at 155 [Gollop et al.].
2 Barbara Woodhouse, “Hatching the Egg: A Child-Centered Perspective on Parents’ Rights” (1993) 14 Cardozo L. Rev.
1747 at 1783 [Woodhouse, “Hatching the Egg”].
3 Justice Claire L’Heureux-Dubé, “Children and the Law: Voices Unheard” in Supreme Court of Canada: Seventh Interna-
tional Appellate Judges Conference and Sixth Commonwealth Chief Justices Conference, (Ottawa: Minister of Public
Works and Government Services, 1996) 135 at 137.
heard. Hearing children demands two fundamental changes. First, it requires that those tasked
with listening to children have the training and experience to understand what children say.
Second, hearing what children say necessitates valuing a broader array of interests. Children
speak in terms of relationships, interdependence and care, and the legal system is unable to
hear them so long as it continues to give priority to abstract, individualistic rights.
Although I focus specif‌ically on B.C.’s legislative and judicial context, my argument draws
upon literature from Canada, the United States, England, and New Zealand, given that the
problem of children’s exclusion from meaningful participation in custody and access decisions
extends beyond B.C. borders. It stems more broadly from liberal ideology that values autono-
mous and rational citizens, and promotes and protects the rights the individual. I argue that
without reconceptualizing the dominant rights framework, the family law system will be unable
to serve children’s best interests.
Part I of this article outlines the nature and extent of the problem of children’s exclusion,
demonstrating that the family law system serves and protects adult priorities at the expense
of children’s interests. Part II provides several justif‌ications for the inclusion of children’s voices
and participation in custody and access decisions, concluding with the assertion that although
rights are the means to protect and advance children’s claims, the dominant rights discourse
necessarily excludes children from its ambit. Without reconceptualizing the dominant rights
framework, the inclusion of children in the family law system will, at best, be marginal and,
at worst, damaging to children and their families. Part III offers a reconceptualization of rights
that emphasizes interdependent relationships and caregiving. Part IV discusses how a new con-
ception of rights demands transformative change to the family law system and provides some
suggestions in this regard. Part V presents concluding remarks, reiterating why it is important
to listen to children in custody and access determinations, and summarizes the transformative
change that is required in order to hear what children have to say.
PART I –The Problem of Children’s Exclusion
In Canada, custody and access proceedings are subject to concurrent federal and provincial
legislation. Married couples can opt to have either the federal Divorce Act (“DA”) or the B.C.
Family Relations Act (“FRA”) apply to custody and access determinations on marital break-
down; whereas, common law partners are restricted to the application of the FRA.4 Section
24(1) of the FRA makes the best interests of the child the paramount consideration in custody
and access decisions.5 In determining the child’s best interests, the court is not obliged to con-
sider the views of the child and will only do so where it is “appropriate”,6 although the FRA
provides no guidance as to precisely when it is appropriate to hear children’s views. Under the
DA, the court must only take into consideration the best interests of the child “as determined
by reference to the condition, means, needs and other circumstances of the child”.7 However,
4 Divorce Act, R.S.C., c. 3 (2nd Supp.) [DA]. Subsection 2(1) def‌ines spouse as either of two persons who are married to each
other. Subsection 16(1) permits a court of competent jurisdiction to make custody and access decisions on application of
either or both spouses; Family Relations Act, R.S.B.C. 1996, c. 128 [FRA]. Subsection 1(1) def‌ines a spouse as a person who
is married to another or, for the purposes of custody and access decisions, a person who has been living in a marriage-like
relationship with another for two years.
5 FRA, ibid., s. 24(1). In determining the best interests of the child the court must consider the following factors: the health
and emotional well being of the child including any special needs for care and treatment; if appropriate, the views of the
child; the love, affection and similar ties that exist between the child and other persons; education and training for the child;
and the capacity of each person to whom guardianship, custody or access rights and duties may be granted to exercise
those rights and duties adequately.
6 ibid., s. 24(1)(b).
7 DA, supra note 4, s. 16(8).

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