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

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.

Law reform

Incorporation of the CRC

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).

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

Fully Informing children about participatory rights

Recommendation 18: Children are often not informed about their participatory rights in family law and in child welfare proceedings. Yet the UN Committee General Comments conclude that receiving this information is essential to implementing participation rights. The CBA 2020 Report recommends that in all cases where courts formally assess children’s best interests, children should be meaningfully informed about their participation rights, including their right to independent legal representation.

Law reform

Applying for declarations about children’s best interests

Recommendation 19: As noted above, the BCCA refused declaratory relief to a child in a family law proceeding. Brown, findlay, Martinson, and Williams (2021) recommend that the FLA be clarified to ensure that children can obtain a best interests declaration about their best interests in a family law proceeding, and similar relief should be available in the CFCSA.

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.