Family Law

More About Family Law

With children so reliant on the adults around them to realize their rights in family law, responsibility rests with the adults – parents, lawyers, judges, mediators, counsellors, child specialists – to facilitate this realization. This includes supporting a child’s meaningful participation in these matters which so directly and profoundly affect them.

Child rights are directly engaged in family law disputes in many ways, such as when the child:

Is the subject of court proceedings because their parents’ relationship has broken down, but the child is not a party
Seeks relief for themselves in the family justice system such as where they are parents or spouses, or where they seek some emancipation or support relief, in their own right
Is made a party to a proceeding (mostly in child protection cases where the child reaches a certain age)
May have counsel appointed for them, either as counsel or as amicus curiae for the court
Has their name or status affected (e.g. adoption, immigration, marriage, divorce)
Has their own property or decision-making at stake (e.g. medical care)
The common law evolved from children as chattels to a focus on the protection of children’s best interests but is still evolving in recognizing children as subjects with rights within family law. There is a tendency to want to keep children out of the process, with only provincial/territorial child protection legislation allowing children over 12 years to participate or be parties. Even then, it is not automatic and heavily dependent on an adult informing the child and helping to facilitate the child’s participation.

Neither the Divorce Act nor provincial/territorial legislation speak of a child’s rights, but rather of a child’s best interests, which is but one of the bundle of rights held by the child under the Convention on the Rights of the Child (CRC.)

Superior Courts have the ability to draw on their parens patriae jurisdiction to act in the child’s best interests while parents are obliged to do the same at law, under their fiduciary duty. The adults are the predominant actors in family law rather than children themselves, despite the children being profoundly impacted.

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