“The importance of hearing, and placing appropriate weight on, the views of the child is a critical development in family law. Article 12 of the Child Convention provides:
-
-
-
-
- States 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 child being given due weight in accordance with the age and maturity of the child.
- For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.
-
-
-
Hearing the child’s views and preferences and incorporating those views in judicial decision-making about matters affecting a child’s best interests dovetails with section 24(2)(b) of the CLRA. It is important to recognize the agency of children, and where possible, to hear their voice before making custody and access decisions which have a profound effect on the life of a child.
The benefits to judicial decision-making of hearing a child’s voice were set out by Martinson J. in G. (B.J.) v. G. (D.L.), 2010 YKSC 44 as follows at paras. 21-22:
[21] Obtaining information of all sorts from children, including younger children, on a wide range of topics relevant to the dispute, can lead to better decisions for children that have a greater chance of working successfully. They have important information to offer about such things as schedules, including time spent with each parent, that work for them, extra-curricular activities and lessons, vacations, schools, and exchanges between their two homes and how these work best. They can also speak about what their life is like from their point of view, including the impact of the separation on them as well as the impact of the conduct of their parents.
[22] Receiving children’s input early in the process, and throughout as appropriate, can reduce conflict by focusing or refocusing matters on the children and what is important to them. It can reduce the intensity and duration of the conflict and enhance conciliation between parents so that they can communicate more effectively for the benefit of their child. When children are actively involved in problem solving and given recognition that their ideas are important and are being heard, they are empowered and their confidence and self-esteem grow. They feel that they have been treated with dignity. In addition, children’s participation in the decision-making process correlates positively with their ability to adapt to a newly reconfigured family.”