1. 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.
2. 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.
   Article 12, United Nations Convention on the Rights of the Child (“CRC”)

It would be difficult to argue that a family law proceeding between a child’s parents is not a matter affecting the child. In which case, according to Canada’s obligations under the Convention on the Rights of the Child (“CRC”), the child must be allowed the opportunity to be heard, either directly or through representation.

Under BC’s Family Law Act (“FLA”), the views of the child are one of a series of factors that must be considered as part of the best interests of the child analysis, which informs all decisions relating to children and parenting. Courts can appoint experts to assess the views of the children. Sometimes, judges will speak directly to children to ascertain their views on parenting arrangements and their relationships with their parents.

There are also three possible ways that children’s interests can be represented in a family law proceeding: by an amicus curiae, a litigation guardian, or a child advocate.

An amicus curiae is a lawyer appointed to assist the court in coming to an informed decision by ensuring relevant facts and law are before the judge. An amicus does not advocate for any party and can provide an unbiased view. An amicus may be particularly helpful in family law proceedings in which both parties are self-represented and there is a high degree of conflict.

A litigation guardian is appointed to protect the child’s best interests. This is not a lawyer, but a person appointed to direct counsel to advocate for the child. Importantly, the litigation guardian is not directed by the child. The guardian may determine something is in the child’s best interests despite the child disagreeing.

A child advocate is a lawyer appointed to represent a child directly. The child instructs the advocate, and the advocate advises the child and advocates for their position, as a lawyer would for an adult client.

Despite the CRC and FLA’s emphasis on the importance of the views of the child, those views are often only heard indirectly through experts, parents, or judges. It is rare for children to have any form of representation in family law proceedings. In fact, parents are often encouraged not to talk about litigation or negotiations with the children. There is good reason to avoid putting children in the middle of their parents’ conflict, but it means children are shut out of decisions that will profoundly affect them.

This is not in line with Canada’s commitment to children’s right to participate. It would likely not be in children’s best interests to make family law proceedings longer and more costly for their parents by requiring representation for the children in every case. However, as part of Canada’s obligations under the CRC, it is important that parents and lawyers engaged in family law proceedings consider how children’s views will be heard and how their right to participate will be respected.

If you are concerned about involving your children in your separation or believe your children’s voices should be heard as part of your family law matter, talk to a lawyer experienced in family law. You may also want to contact a counsellor to discuss age-appropriate ways to discuss your family’s transition with your children.

This article does not provide legal advice and the information should not be taken as such. For proper legal advice and current information about the law, you must speak to a lawyer.