“There are too many litigants coming to court and demanding that the only way to respect Canada’s responsibilities as a signatory to the United Nations Convention on the Rights of the Child, Article 12, is for the judge to order that an independent professional assessor become involved and interview the child, regardless of the individual circumstances of the case. That is clearly wrong. Such a submission is not justified by the Convention itself, or by any provision in the Divorce Act, or by any binding jurisprudential authority that I am aware of. Such a submission is an oversimplification that derogates from the plain wording of the legislation itself, in that Parliament could have worded section 16(3)(e) of the Divorce Act differently so as to specify how, or in what evidentiary form, a judge should meet the mandatory requirement to consider the child’s views and preferences, except where they cannot be ascertained, in determining that child’s best interests. Parliament chose not to do so. One might reasonably conclude that the choice not to was informed by considerations that include limited resources on the part of families, limited resources on the part of the Office of the Children’s Lawyer, and the desire not to hold a child in limbo while we wait for something from a third party that may not be necessary.”
