See note 311
Statutes in several provinces stipulate that the wishes of a child are a relevant factor to be considered in determining the best interests of a child in contested custody or access proceedings. Although there is no explicit provision to this effect in the Divorce Act, judicial practice has long acknowledged the relevance of an older child’s wishes in custody and access proceedings arising under that Act. The best interests of a child are not to be confused with the wishes of the child, but a child’s views and preferences fall within the parameters of a child’s best interests.312When children are under nine years of age, courts have not usually placed much, if any, reliance on their expressed preference.313The wishes of children aged ten to thirteen have commonly been treated as an important but not a decisive factor. The wishes of the children increase in significance as they grow older and courts have openly recognized the futility of ignoring the wishes of children over the age of fourteen years.314Possibly because of the impact of the United Nations Convention on the Rights of the Child, Canadian courts appear to be placing more emphasis on children having a voice in contested custody/access proceedings.315In some recent cases, the views and preferences of children under the age of nine have been sought but there is no indication that the weight to be given to such a young child’s opinion is any greater than it has been hitherto.316In an era of self-represented litigants and costly expert input, using age cut-offs to signify the weight to be given to a child’s preference is a rough and ready tool that reflects past judicial decisions; it does not, of course, foreclose the need to look beyond the child’s age. Caselaw in Canada demonstrates
that the significance of a child’s wishes will depend on a number of factors, including the child’s age, intelligence, maturity, the ability of the child to articulate a view, and any improper influence of either parent.317The court must look to the child’s capacity to understand and appreciate the relevant and significant issues involved in making a wise, informed, reasoned, and responsible choice.318In Decaen v Decaen, the Ontario Court of Appeal stated:
In assessing the significance of a child’s wishes, the following are relevant:
(i) whether both parents are able to provide adequate care; (ii) how clear and unambivalent the wishes are; (iii) how informed the expression is; (iv) the age of the child; (v) the maturity level; (vi) the strength of the wish;
(vii) the length of time the preference has been expressed for; (viii) practicalities; (ix) the influence of the parent(s) on the expressed wish or preference; (x) the overall context; and (xi) the circumstances of the preferences from the child’s point of view: See Bala, Nicholas; Talwar, Victoria; Harris, Joanna, "The Voice of Children in Canadian Family Law Cases", (2005), 24 C.F.L.Q. 221.319It is unusual for a court to grant any order for custody after a child reaches the age of sixteen years.320However, in accordance with the definition of "child of the marriage" in section 2(1) of the Divorce Act, a court has jurisdiction under section 16 of the Divorce Act to grant an order for custody of or access to an adult child who is mentally or physically disabled.321
Where the central factual issue to be determined in the contested custody and access proceeding is whether it is the adult child himself or his mother who is effectively preventing the father from visiting the child, the court may
order a medical examination of the child under Rule 30 of the British Columbia Rules of Court or appoint an independent expert under Rule 32A to inquire into and report on the facts.322While caselaw generally supports placing a great deal of weight on the views and preferences of children over twelve, in cases of parental alienation where one parent has undermined the child’s relationship with the other parent, the child’s views may not be seen as his or her own.323In the most serious cases of parental alienation, however, remedial options become increasingly limited once the child becomes a teenager.324
A distinction can be drawn between a custody order that runs counter to a child’s wishes and an access order that does the same. Absent evidence of harm, or the potential for harm or risk to a child if access is ordered, there is no compelling reason for a court to simply default to a child’s wishes and the potential difficulty involved in enforcing an order.325Although the child is the focal point of all disputed custody and access proceedings, the question arises as to who speaks for the child.326Even though judges apply the "best interests of the child" as the determinative criterion of custody and access disputes, the role of independent arbiter precludes a trial judge from acting as an advocate for the child. How, then, can the child’s interests be protected? In some provinces, courts have exercised a discretionary jurisdiction to appoint an independent lawyer to represent the child in contested custody proceedings.327However, such appointments are exceptional and children are rarely represented by independent lawyers in settlement negotiations, and their voices may go unheard if mediation328 is used as a means of resolving parenting disputes. In contested proceedings,
some judges will interview the children privately to ascertain their wishes; other judges are averse to this practice.329In NL v RL,330the New Brunswick Court of Appeal held that the trial judge made no palpable and overriding error by gleaning the child’s views and preferences from a social worker’s report instead of directly interviewing the child. In its opinion, since the mother had succeeded in alienating the child from her father, no purpose would be served by interviewing the child who would, no doubt, favour the mother.
In BJG v DLG,331 at a hearing to consider applications by the father and mother of a twelve-year-old child to vary existing custody and child support orders granted pursuant to the Divorce Act, Martinson J, of the Yukon Territory Supreme Court, observed that the evidence relating to the child’s custody did not include any information about the child’s views, and she requested submissions from counsel on the issue of whether the court should hear from the child. After hearing from counsel, she determined that federal, provincial, and territorial legislation relating to child custody should be interpreted to reflect the values and principles found in the United Nations Convention on the Rights of the Child,332which was ratified by Canada, with the support of the provinces and territories, in 1991. Looking to the "best interests of the child" test in section 16(8) of the Divorce Act and to section 30(1)(c) of the Children’s Law Act,333which requires a court to consider the views and preferences of a child, if they can be reasonably ascertained, Martinson J concluded that these statutory provisions should be interpreted to reflect the Convention’s key premise that hearing from children is in their best interests. She placed particular reliance on Article 12 of the Convention, which specifically provides as follows:
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...