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

• Author: Maria Coley
• Position: Graduated from UVic law in May 2006
• Pages: 48-72

48 n APPEAL VOLUME 12

CHILDREN’S VOICES IN ACCESS AND CUSTODY

DECISIONS:

THE NEED TO RECONCEPTUALIZE RIGHTS AND

EFFECT TRANSFORMATIVE CHANGE

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

INTRODUCTION

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.

APPEAL VOLUME 12 n 49

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

CHILDREN’S VOICES IN B.C. FAMILY LAW PROCEEDINGS

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).