Enhanced awareness and training

Education and training for legal professionals

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.

Enhanced awareness and training

Seek consultations with judges regarding children’s participation

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).

Increasing attention (and resources) must be given to children’s representation

Recommendation 7: Academic scholarship and policy papers focused on children’s rights to representation point to the need for increased funding from government sources, to provide consistent and dependable counsel for children (Bala & Birnbaum, 2019; Byrne & Lundy, 2019; Canadian Coalition for the Rights of Children, 2016; Collins, 2019). However, it is also notable that none of this literature provides specific guidance as to where extra funding should be sourced or how new programming may be implemented to maintain both efficient and effective legal assistance for children to facilitate the expression of their views in a legal setting. In particular, the CBA Alternative Report (2020) suggests that in B.C., absolutely no funding is set aside for children’s representation (p. 33). This is particularly problematic in relation to immigrant, refugee, and Indigenous children (CBA, 2020). This may be the case for two reasons: 1) an overall lack of resources (particularly given the current local and international economic climate in the wake of Covid-19 – see Garlen, 2020); and/or 2) a lack of awareness at the federal level of the critical importance of this issue, and the ‘domino effect’ of reduced rights for vulnerable populations. As a result, it is recommended that policy organisations focused on this issue work to demonstrate whether and how additional funding can be allocated to children’s legal representation. In New Zealand, for example, the Family Court (Supporting Families in Court) Legislation Bill forms part of a $62 million package that restores the right to legal representation at the start of a care of children dispute in the Family Court (Government of New Zealand, 2020, p. 1). Enhanced attention and funding at the federal level can only benefit both those organisations focused on this area, as well as beneficiary populations.

Participation and representation generally

Guarantee legal representation for all children and in all cases

Recommendation 10: From a child rights perspective, treating children as full rights bearers, (Michel v. Graydon, at para. 77) legal representation is a key form of children’s participation which ensures that children’s voices will be heard, and due weight will be given to their opinions (Tempesta, 2019). Legal representation should be provided in all cases involving children’s interests in order to sufficiently fulfil requirements from Article 12 of the UNCRC, including the UN Committee on the Rights of the Child safeguards and guarantees, referred to above. (Elrod, 2016; Lovinsky & Gagne, 2015; Martinson & Tempesta, 2018; Tempesta, 2019). As such, it is necessary to provide legal representation to all children (who choose it after obtaining meaningful information and advice about it and other choices), in all cases, including high risk cases, in order to protect their rights and promote their best interests in guardianship and family law proceedings regardless of the level of risk, as well as fulfil the requirements outlined by the UNCRC (Birnhaum, 2017; Birnbaum et al., 2016; Martinson & Tempesta, 2018; Tempesta, 2019).

Participation and representation generally

Legal representation as the government’s responsibility

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.

High risk legal proceedings

Ensure children’s participation in high-risk cases

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.

High risk legal proceedings

Distinguish between high conflict and violence

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).

High risk legal proceedings

Legal representation in high-risk cases

Recommendation 14: Children must be provided with legal representation to ensure that their best interests are at the forefront of decision-making in high-risk cases (Elrod, 2016; Lovinsky & Gagne, 2015; Martinson & Tempesta, 2018; Tempesta, 2019), which includes providing court appointed and funded lawyers to ensure that children’s claims are meaningfully considered and given due weight (Elrod, 2016).

Law reform

Procedural safeguards

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).

Law reform

Amendments to specific sections of the FLA

Recommendation 20:
Views of the Child – s. 37(1)(b)

Brown, findlay, Martinson, and Williams (2021) recommend amending s. 37(1)(b) of the FLA to remove the words, “unless it is inappropriate to consider them” and to add the words, “and give those views due weight in accordance with their age and maturity.” This would provide consistency with the 2019 Divorce Act, and the CRC.

Definition of Family Violence – s. 1

Brown, findlay, Martinson, and Williams (2021) also recommend that the definition of psychological or emotional violence be clarified to provide that it is the impact of psychological or emotional family violence, including impact on a child, not the intention of the abuser, that is relevant. This would make it clear that violence must be considered from the child’s perspective if the child is the victim of psychological or emotional family violence.

Conflating Conflict and Family Violence

Section 199(1) of the FLA addresses both minimizing conflict and protecting children and parties from family violence. The section should be amended to make it clear that the object of reducing conflict cannot override the overarching obligation to ensure children’s safety, security, and well-being (Brown, findlay, Martinson, & Williams, 2021).

Considering Other Civil or Criminal Proceedings – s. 37(2)(j)

The CBA 2020 report, when speaking about the relevant provision in the 2019 Divorce Act, recognizes the importance of stating that the objective of considering other proceedings is to both avoid conflicting orders and to coordinate proceedings. The 2019 Act also creates a duty upon judges to obtain such information. The FLA should be amended to conform with the new Divorce Act provision.

Amending s. 203 – Legal Representation

Section 203 inappropriately and significantly limits the ability of courts to appoint lawyers for children as required by the CRC and should be amended accordingly (Brown, findlay, Martinson, & Williams, 2021; Martinson & Tempesta, 2010).

Amendments to the CFCSA

The CFCSA should be amended to include express provisions and specific procedures that incorporate children’s views in child protection proceedings, including an enabling provision for legal representation (Child Protection Project Committee, BCLI, 2020). According to the Child Protection Project Committee of the BCLI (2020), this clarification of the law is necessary to prevent children’s views from being overlooked due to broad judicial interpretation under the CFCSA’s current form. This enabling provision should include detailed options and factors to consider for incorporating children’s views in child protection proceedings, while maintaining wide judicial discretion (Child Protection Project Committee, BCLI, 2020).

The CFCSA should also include a clear enabling provision for legal representation of children in child protection proceedings, which is currently missing from B.C. legislation, unlike most other provinces (Child Protection Project Committee, BCLI, 2020). Provisions for enabling legal representation for children should also clarify who should decide when appointing counsel is appropriate, factors to consider, how to determine appropriate capacity of the child and who should pay for the lawyer (Child Protection Project Committee, BCLI, 2020).
br>Finally, the BCLI Child Protection Project Committee (2020) notes that changes to the legislation are modest reforms and should exist alongside ministerial policies that are more flexible to changes and adequately funded programs to carry out children’s legal participation.