20 search results for
The FREDA Centre at Simon Fraser University’s School of Criminology
Recommendation 1:
Despite the Canadian federal government ratifying the UN CRC, provinces are inconsistent in how and when legal counsel is appointed for children (CBA, 2020; Child Projection Project Committee, BCLI, 2020; Lovinsky, 2016). Even within a province, there are often inconsistencies across different areas of law (Child Protection Project Committee, BCLI, 2020; Lovinsky, 2016). The literature also notes that current independent provincial and territorial Child Advocate and Representative Offices vary widely across provinces and are vulnerable to funding and operational changes due to provincial restructuring and changes in political priorities (Bendo & Mitchell, 2017; CBA, 2020). For instance, Ontario’s Provincial Advocate for Children and Youth was recently closed, and its investigative functions were transferred to the Ontario Ombudsman, which does not carry the same specialized approach towards children’s rights as the Provincial Advocate for Children and Youth (CBA, 2020).
These issues can be addressed through a national plan across provinces to coordinate efforts and maintain consistency (Byrne & Lundy, 2019; CBA, 2020; Collins, 2019). The CBA recommends that the federal government develop an independent National Commissioner for Children and Youth reporting to both Houses of Parliament, with a statutory mandate to protect and promote human rights amongst children and youth in Canada, including their rights to participation, and to liaise with provincial, territorial and Indigenous counterparts to coordinate efforts of mutual concern and overlapping jurisdiction. The CBA further suggests that the National Commissioner should serve to coordinate and ensure consistency amongst independent child advocate offices across provinces and territories. Finally, the CBA emphasizes the importance of incorporating and protecting the rights and interests of Indigenous children and youth when developing a national policy on children’s rights.
These issues can be addressed through a national plan across provinces to coordinate efforts and maintain consistency (Byrne & Lundy, 2019; CBA, 2020; Collins, 2019). The CBA recommends that the federal government develop an independent National Commissioner for Children and Youth reporting to both Houses of Parliament, with a statutory mandate to protect and promote human rights amongst children and youth in Canada, including their rights to participation, and to liaise with provincial, territorial and Indigenous counterparts to coordinate efforts of mutual concern and overlapping jurisdiction. The CBA further suggests that the National Commissioner should serve to coordinate and ensure consistency amongst independent child advocate offices across provinces and territories. Finally, the CBA emphasizes the importance of incorporating and protecting the rights and interests of Indigenous children and youth when developing a national policy on children’s rights.
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Recommendation 15:
The Supreme Court of Canada, in Michel v. Graydon, which specifically deals with the B.C. Family Law Act, discusses principles that apply to the interpretation of statutes which directly bear on the role of the B.C. Legislature in upholding children’s rights, including their participation rights. The concurring judgment states: (1) that the Legislature is presumed to take into account Canada’s international obligations, which includes those found in the CRC (at para. 103); and (2) that the Legislature is taken to know the social and historical context in which it makes its intention known (at para. 97). The literature, taking an approach consistent with these principles, suggests that the Legislature plays a critical role in implementing children’s right to participate effectively in court processes. Though many important legislative, regulatory and policy steps have been taken, the literature identifies several others that are necessary to meet B.C.’s obligations to children in family law and child welfare processes. They include the specific incorporation of the CRC in both the FLA and the CFCSA, ensuring that both court processes incorporate procedural safeguards and guarantees, making sure that children in court processes are fully informed of their participatory rights and allowing children to apply for declarations relating to their best interests.
In addition, specific legislative changes and clarifications are necessary in the FLA and the CFCSA. For the FLA, these include a review of the following sections: s. 37(1) (b), views of the child; the s. 1 definition of family violence (to clarify that intent is not required); s. 203, dealing with legal representation; s. 199, dealing with conflict and family violence; and s. 37(2)(j), considering any other civil or criminal proceeding. For the CFCSA, amendments are required which provide the legal advice and representation children require throughout the processes, as well as specific provisions relating to hearing children’s views.
In addition, specific legislative changes and clarifications are necessary in the FLA and the CFCSA. For the FLA, these include a review of the following sections: s. 37(1) (b), views of the child; the s. 1 definition of family violence (to clarify that intent is not required); s. 203, dealing with legal representation; s. 199, dealing with conflict and family violence; and s. 37(2)(j), considering any other civil or criminal proceeding. For the CFCSA, amendments are required which provide the legal advice and representation children require throughout the processes, as well as specific provisions relating to hearing children’s views.
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Recommendation 11:
The majority of Canadian provinces have separate government bodies in place that provide legal counsel to children (Lovinsky, 2016). B.C. must also assume the responsibility for providing funding and personnel to secure legal representation for children in all guardianship and family law cases in order to adhere to the UNCRC’s recommendations and FLA’s best interest provisions, and to concur with the 2020 CBA report recommendations.
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Recommendation 16:
The literature has long supported specific incorporation of the CRC in all legislation relevant to children. It is particularly important in family law and child welfare cases but has not happened in B.C. (Brown, Findlay, Martinson, & Williams, 2021; CBA 2020; Andreychuk & Fraser, 2007; UN Committee on the Rights of the Child Concluding Observations: Canada, 2012). An example of the effective incorporation is found in Ontario’s Child, Youth and Family Services Act, 2017 (CBA, 2020).
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Recommendation 13:
The language used in high-risk cases must be clarified to delineate between high conflict cases and cases with the presence of violence to ensure the appropriate safeguards are put into place to protect and promote children’s participation (Martinson & Raven, 2020a, 2020b; Brown, Findlay, Martinson, & Williams, 2021).
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Recommendation 17:
The CRC was created by Article 43 of the CRC to implement it, by way of General Comments, and provide international standards that apply to the work that B.C. judges, lawyers and other professionals do in family law. They identify children’s rights and the importance of legal guarantees and apply procedural safeguards in describing how to implement children’s rights in judicial proceedings, which includes but is not limited to obtaining children’s views and requiring all appropriate legal representation (see CRC General Comment 14, para 93). These guarantees and safeguards are not implemented in B.C. nor across Canada and should be implemented (Brown, findlay, Martinson, & Williams, 2021; CBA 2020; Jackson & Martinson, 2019; Martinson & Tempesta, 2018; Martinson & Raven, 2020a).
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Recommendation 5:
The Canadian legal system also requires specialised training of professionals working with children, including mental health professionals, lawyers, and judges (Bala & Birnbaum, 2019; Collins, 2019; Paetsch et al., 2018). This is particularly important for legal professionals working on cases involving parental alienation and/or family violence (Elrod, 2016; Martinson & Jackson, 2016). These types of cases require judges and mental health professionals who are experienced in discovering and addressing problems in the family, as there can be multiple reasons for a child refusing contact with a parent or guardian, including family violence that can continue to put the child at risk if left unaddressed in custody and access decisions (Elrod, 2016; Martinson & Tempesta, 2018).
Specific recommendations for children’s legal counsel include: ensuring democratic communication, in which lawyers and child both share information about themselves to build trust in preparation for proceedings; having lawyers inform children about the court process and what it means to have a lawyer represent them; having lawyers pose questions to children to better recognize how children understand the court process; and getting lawyers to emphasize flexibility in the child’s options to share their views, not share them at all or change their instructions to the lawyer (Bala & Birnbaum, 2019; Koshan, 2020; Horsfall, 2013; Paetsch et al., 2018). Those working at family courts should receive specialised training on family violence and high-risk cases, which can have a substantial impact on children’s rights (Koshan, 2020; Martinson & Raven, 2020a). From a scholastic perspective, much more research is needed to understand which of the many strategies implemented across Canada (and the world) might be most helpful to children’s legal participation (Birnbaum & Saini, 2012). This requires ongoing cooperation and collaboration between the legal and academic communities, to guarantee specialised and sensitised approaches to this topic.
Specific recommendations for children’s legal counsel include: ensuring democratic communication, in which lawyers and child both share information about themselves to build trust in preparation for proceedings; having lawyers inform children about the court process and what it means to have a lawyer represent them; having lawyers pose questions to children to better recognize how children understand the court process; and getting lawyers to emphasize flexibility in the child’s options to share their views, not share them at all or change their instructions to the lawyer (Bala & Birnbaum, 2019; Koshan, 2020; Horsfall, 2013; Paetsch et al., 2018). Those working at family courts should receive specialised training on family violence and high-risk cases, which can have a substantial impact on children’s rights (Koshan, 2020; Martinson & Raven, 2020a). From a scholastic perspective, much more research is needed to understand which of the many strategies implemented across Canada (and the world) might be most helpful to children’s legal participation (Birnbaum & Saini, 2012). This requires ongoing cooperation and collaboration between the legal and academic communities, to guarantee specialised and sensitised approaches to this topic.
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- Access to justice ,
- Accessibility ,
- Accessible services and technology ,
- Ageism ,
- Courts ,
- Decolonization and Indigenous rights ,
- Discrimination and hate ,
- Human rights system ,
- Indigenous children and youth in care ,
- International human rights ,
- Policing and the criminal justice system ,
- Poverty and economic inequality ,
- Public services
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Recommendation 6:
One of the most valuable ways in which judicial perspectives could be sought as to the level of education and training received across Canada, would be through an in-depth consultation that would identify fundamental flaws within the Canadian legal system (see Martinson & Jackson, 2016). Consultations should include members of the Indigenous legal community, who are best placed to speak to the needs of Indigenous children in Canada (CBA, 2020).
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- Access to justice ,
- Accessibility ,
- Accessible services and technology ,
- Ageism ,
- Courts ,
- Decolonization and Indigenous rights ,
- Discrimination and hate ,
- Education and employment ,
- Human rights system ,
- Indigenous children and youth in care ,
- International human rights ,
- Policing and the criminal justice system ,
- Poverty and economic inequality ,
- Public services ,
- Racism ,
- Representation and leadership
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Recommendation 3:
In order to ensure that all children are granted the right to participate in legal proceedings in Canada, it is critical that all parties take an intersectional approach to understanding children’s rights and needs (Martinson & Raven, 2020a). This means acknowledging the particular nuances of a child’s circumstances and recognising that these may vary on a case-by-case basis. This also requires courts to recognise children’s socio-economic status, gender identity and expression, and differing abilities, amongst other factors (Canadian Coalition on the Rights of Children, 2016; CBA, 2020; Martinson & Raven, 2020a, pp. 22-23). Upholding children’s rights requires the creation of an environment in which all children feel empowered to participate in legal proceedings that affect them, regardless of their circumstances (CBA, 2020).
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Category and theme:
- Ableism ,
- Access to justice ,
- Accessibility ,
- Accessible services and technology ,
- Ageism ,
- Classism ,
- Courts ,
- Decolonization and Indigenous rights ,
- Discrimination and hate ,
- Homophobia and transphobia ,
- Human rights system ,
- Indigenous children and youth in care ,
- International human rights ,
- Policing and the criminal justice system
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Recommendation 12:
High risk cases (e.g., high conflict, presence of violence, allegations of parental alienation) pose a threat to children’s legal right to participation (Martinson & Raven, 2020b; Morrison et al., 2020). As such, safeguards must be put into place that ensure children’s rights are respected and that their access to justice and best interests are advanced in high-risk cases.
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