THE VOICE OF THE CHILD IN DIVORCE, CUSTODY AND ACCESS PROCEEDINGS
In Canada, children have had little opportunity to directly participate in divorce, custody, and access proceedings. The child's voice, if it is heard at all, is usually transmitted by third parties such as the parents, litigants or professionals such as social workers or psychologists. Children in this country generally do not have access to independent legal representation in divorce, custody and access cases and are not given the opportunity to express their wishes, views, or preferences directly to judicial decision-makers.
In the past few years, the position of the child in divorce, custody and access proceedings has been undergoing re-evaluation. There is gradual acknowledgement that a child is an independent human being, separate from his or her parents, with potentially different views and preferences. The importance of the transmittal of the child's views to members of judiciary, who make decisions that will have a significant impact on the child's life, is being understood. The Special Joint Committee on Child Custody and Access emphasized the importance of hearing the child's voice in its 1998 report For the Sake of the Children. Canada also has the responsibility to fulfill its international obligations as a signatory to the United Nations Convention on the Rights of the Child.
It is recommended that federal and provincial officials implement these statutory and non-statutory proposals to ensure that the child's voice is heard in a meaningful way in divorce, custody and access proceedings:
- Article 12 of the United National Convention on the Rights of the Child should be expressly incorporated in provincial and federal legislation pertaining to divorce, custody, and access. Children who are capable of forming views on these issues must be provided with an opportunity to have these views heard by judicial decision-makers.
- Federal and provincial legislation on divorce, custody and access should be amended to include a provision that states that children have the right to independent legal representation.
- A presumption should exist that a child five years or older has the ability to communicate his or her views to a lawyer.
- Providing the child can communicate his or her views to a lawyer, the relationship between the lawyer and the child should be solicitor/client. Counsel, as advocate for the child, is obliged to put forth the child's wishes and preferences on the principle that children have the right to have the court hear and take under advisement their views on issues before the court.
- A solicitor/client privilege should exist between the child and the solicitor.
- For children who are unable to communicate their views or do not wish to have independent legal representation, a lawyer should be appointed to act as amicus curiae. The function of the lawyer is to collect evidence that may not be submitted to the court by the litigants. The amicus curiae must ensure that the court has before it a comprehensive account of the facts.
- A child advocacy office must be established in each province where such office does not currently exist. The responsibility of the child advocacy office is to inform children of their right to independent legal representation, to appoint and train lawyers for children, and to ensure quality representation. The child advocacy offices in each province must be provided with appropriate funding to support these activities.
- Lawyers must acquire the requisite skills to represent children in custody, access and divorce cases. These include appropriate interview skills, the ability to communicate information in simple and comprehensible language, an understanding of child psychology, and knowledge of community resources for children.
- Lawyers representing children should be remunerated through the Legal Aid Plan in each province.
- The Law Society in each province should develop a Code of Ethics for lawyers representing children.
- The statutory competency rules for children in federal and provincial proceedings should:
- (i) contain a presumption of competency for children;
- (ii) repeal corroboration requirements for the evidence of children;
- (iii) state that children who can communicate their views and who understand the promise to tell the truth are permitted to give evidence; and
- (iv) contain a provision to the effect that the evidence of a child who does not understand the promise to tell the truth is admissible if, in the court's discretion, the evidence is reliable.
- (i) contain a presumption of competency for children;
- Federal and provincial legislation should be amended to include a provision that all children have a right to give evidence behind a screen in divorce, custody and access proceedings.
- Children should have the right, by virtue of a statutory provision, to give evidence by closed-circuit television in divorce, custody, and access cases.
- Children should have a statutory right to give videotaped testimony in divorce, custody and access proceedings.
- Federal and provincial legislation should contain provisions allowing for videotaped interviews if such evidence is reliable. The child should not be required to attend the trial to adopt the contents of the interview nor must the child be available for cross-examination.
- Federal and provincial legislation should be amended to include a provision that states that the child has the right to a support person from the inception of the legal dispute.
- Judges should take measures to ensure that children are protected in legal proceedings involving divorce, custody and access. For example, proceedings should be conducted in age-appropriate language and counsel should be restrained from intimidating children. The physical surroundings should be conducive to eliciting the views of the child.
- The child should have the right to an interpreter where language or a disability is a barrier to communication in divorce, custody and access proceedings.
- Federal and provincial legislation should be amended to include a provision that states that the hearsay evidence of children is admissible if, in the court's opinion, it is "reliable." The
"necessity prong"in the criminal decision R. v. Khan should not be required for custody, access and divorce proceedings that involve children.
- Child-friendly courtrooms should be available to children in divorce, custody and access cases who wish to express their views to judicial decision-makers.
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