THE UTILITY OF PUBLIC LAW AND PRIVATE LAW IN INCORPORATING THE VOICE OF THE CHILD IN FAMILY LAW PROCEEDINGS.

• Author: Haase, Joshua D.

Introduction

Both social science research and a major international agreement support incorporating the voice of the child into family law disputes. (1) In the Canadian context, however, quantitative research in this area shows that children's evidence is mentioned in less than half of decisions. And even where it is mentioned, it is more often through assessments (or "child custody evaluations") rather than legal representation or "direct" evidence from children. This has led some to advocate for a uniquely public law solution: that children, like the accused in the realm of criminal law, have a right to legal representation. However, this paper will argue that this solution is misguided for two reasons. First, it drastically underestimates the role the private law has played in important developments in family law over the last several decades. Second, it ignores fundamental difficulties in relying on the public law and the Charter (2) when it comes to advancing social causes. As a solution, this paper will suggest that the judicial interview, wherein a judge meets with a child in order to ascertain their views and interests, is an adequate mechanism to incorporate the voice of children in the family law context. At the same time, because this method is underutilized, it will be argued that the private law, in the form of detailed legislation mandating when interviews should occur, the required training for judges, and the procedure to be followed, will best vindicate the interests of children entangled in these difficult legal proceedings.

1. The Voice of the Child in the Family Law Context

   As Rachel Birnbaum and Nicholas Bala point out, "there is a growing amount of research that recognizes the value for both decision-makers and children in having children actively involved in family law dispute resolution processes." (3) For example, the meaningful participation of children in decision-making can reduce their exposure to the negative side-effects of a family breakdown. (4) In addition, empirical studies on children's desire to be included suggest that they want to be kept informed and want their needs and interests heard. (5) These sentiments are reflected at the international level in the United Nations Convention on the Rights of the Child, of which Canada is a signatory. (6) In particular, Article 12 provides that:

1. State parties 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 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. (7)

   The United Nations Committee on the Rights of the Child, which was established to monitor the implementation of the convention, adds the idea that it is not up to a child to demonstrate their capacity to participate--rather, it should be presumed. (8)

   At the same time, however, there is considerable controversy regarding how to include children in dispute resolution processes in the family law context. (9) In addition, there is evidence from Canada that suggests children's evidence is included in an alarmingly small number of cases. For example, Noel Semple conducted a quantitative survey of 181 reported custody and access cases from 2009 and examined the extent to which they mentioned any of the following forms of children's evidence: (1) Direct evidence (e.g., an affidavit or written communication from a child); (2) Child-focused evidence (e.g., assessments of the child's best interests conducted by social workers); and (3) Derivative evidence (e.g., information from child protection employees who worked personally with the child). (10) What he ultimately found was that, first, children's evidence was only mentioned in 45% of the decisions and, second, even when it was mentioned, it was most likely to come in the form of an assessment conducted by a psychologist or social worker (30% of cases). (11) Direct evidence from children and legal representation of children was found to be very rare, accounting for 3% and 7% of 181 judgments respectively. (12) In his conclusion, Semple muses that the paucity of direct evidence suggests that "judges and others who make decisions about children's evidence have not embraced the child liberationist doctrine that children should be active participants in important decisions that affect them." (13)

   Perhaps in response to this state of affairs, some have suggested that the right to counsel--a right that is currently confined to the accused in criminal law cases--should be extended to children in the family law context. For example, Caterina Tempesta and former British Columbia Supreme Court Justice Donna Martinson argue that favoring the use of limited resources on legal representation in criminal law "minimizes the protection and advancement of children's rights in an area of law with the potential to impact on their daily [lives] in a way that may negatively impact their physical and psychological integrity." (14) In addition, they claim that the CRC imposes "clear obligations" on Canadian governments to implement children's rights, which includes legal representation. (15) They also suggest that various laws and policies in different provinces "are not consistent with a child rights approach, and therefore not in the best interests of children." (16) As an example, they point to a provision in British Columbia's Family Law Act (17) that limits the ability of judges to appoint lawyers for children. (18) Finally, they argue that limiting the legal representation of children violates their section 7 Charter right "as informed by the Convention" because their security of the person may be engaged in family law disputes. (19) That right, they point out, cannot be deprived except in accordance with the principles of fundamental justice, (20) which potentially includes legal representation. (21)

   It is not at all surprising that, in light of a perceived injustice committed by the state against a vulnerable group, Tempesta and Martinson would invoke the Charter. It is, after all, a constitutional document that codifies the rights of all citizens and places significant limits on government action. Historically, it has also been the basis for multiple progressive decisions by the Supreme Court of Canada, including those that struck down criminal abortion provisions, (22) prohibited discrimination on the basis of sexual orientation, (23) and prevented police from entering a residence without a warrant. (24) As the next section will show, however, there are two fundamental issues with their approach. The first concerns the role played by the private law in significant advancements in family law in Canada, while the second relates to the difficulties inherent in relying solely on public law and the Charter in order to advance social causes.

2. Rethinking Public Law and the Charter

   In terms of the first concern identified above, Robert Leckey has written much on the popular idea of litigation under the Charter as an instrument of family law reform. (25) He refers to this as "public law thesis" and describes it as containing two claims. (26) The first concerns the claim that the Charter, particularly the section 15 equality right, has influenced the development of family law in fundamental ways. (27) Caselaw examples include M iron v Trudel, (28) where the Supreme Court held that unmarried cohabitants must, in certain circumstances, be treated exactly the same as married couples, and M v H, (29) where the court held that a spousal-support regime applicable to opposite-sex cohabitants must also apply to same-sex cohabitants. (30) For him, this even extends to arguments concerning the influence of Charter "values," which are "thought to have exerted a benevolent influence on the determination of family law disputes." An example here is Moge v Moge (31)--a decision that weakened what had previously been understood as an obligation on the part of wives to attain self-sufficiency upon the dissolution of marriage. (32) According to Helena Orton, the court's statutory interpretation of the Divorce Act (33) in the case was guided by "equality principles." (34)

   The second claim is that family law in Canada has not only been influenced by the Charter but transformed or "constitutional1zed." (35) This occurred in a "broad, principled sense which has affected the substance and principles of family law." (36) As a...