Canada ratified the United Nations Convention on the Rights of the Child in 1991.  Recently, a lot of attention has been placed on the Convention’s concept of “the voice of the child” and the right of a child to be heard in cases like custody disputes.

Article 12 of the Convention is of particular interest:

1. [countries]…. 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. 

A lot of lawyers have taken the Convention to be consistent with the Children’s Law Reform Act (“CLRA”).  Section 24 of that Act requires the court, when assessing the best interests of a child in a custody dispute, to consider all the child’s needs and circumstances, including “the child’s views and preferences, if they can reasonably be ascertained”.

More recently, in the case of Bhajan v. Bhajan, the Court of Appeal has considered the issue of whether a court can give meaning to the right of the child to be heard by requiring the appointment of the Office of the Children’s Lawyer (“OCL”), even when the OCL declines to act.  In that case, the Court of Appeal held that judge’s should respect the OCL’s legislative framework, which permits the OCL to decline to act.

In the recent case of G. (B.J.) v. G. (D.L.), Justice Martinson of the Yukon Territory Supreme Court considered whether judges interviewing children was an appropriate way of having a child’s views heard.  Justice Martinson noted:

“More than just lip service must be paid to children’s legal rights to be heard. Because of the importance of children’s participation to the quality of the decision and to their short and long term best interests, the participation must be meaningful; children should:

1. be informed, at the beginning of the process, of their legal rights to be heard;

2. be given the opportunity to fully participate early and throughout the process, including being involved in judicial family case conferences, settlement conferences, and court hearings or trials;

3. have a say in the manner in which they participate so that they do so in a way that works effectively for them;

4. have their views considered in a substantive way; and

5. be informed of both the result reached and the way in which their views have been taken into account.”

Will Ontario courts follow suit?

The shift towards allowing children greater participation in disputes impacting on them, such as custody disputes, has greatly evolved over the past decade.  The trend is towards making the child’s right to be heard more meaningful, to the point where judges are considering the appropriateness of interviewing children — a rarity in the past.

Certainly, if judges are to respect the OCL’s power to decline involvement in a case (as directed by the Court of Appeal), conducting a judicial interview of a child may be the most appropriate method of hearing a child’s views.

The trial decision of the Ontario Superior Court in A.G.L. v. K.B.D., 2009 CanLII 943 (ON.S.C.) has created a lot of discussion about Parental Alienation Syndrome (PAS). The case is a sad one, and reminds us how upsetting and complex these disputes can be.

After 17 days of trial the court found that the mother had alienated the parties’ 3 daughters – aged 14, 11 and 9 – from their father. The court granted custody to the father despite an 8 year status quo in which the children were in the primary care of their mother. It did so after finding that the mother had engaged in an outrageous course of conduct which had alienated the children from their father. The trial judge found the mother’s conduct to be child abuse.

A cautionary note: the mother’s conduct in this case was so outrageous, and the father’s behaviour was beyond reproach, so there was little discussion about “realistic estrangement” – alienation that is reasonable or warranted between a child and parent. Given the dysfunctions faced by many families undergoing separation, “realistic estrangement” may arguably be more common than PAS.

PAS is not new. The term was coined in the mid-1980s by Richard Gardner. There is much debate about its meaning, and it appears to be more of a “phenomenon” than a disorder. Nonetheless, the court accepted the expert evidence of Dr. Barbara Jo Fidler regarding the warning signs of behaviours of “pathological alienation” (at pages 13-15 of the decision). The court relied on Dr. Fidler’s evidence that children are more susceptible to alienation in certain age ranges:

 

  • Dr. Fidler gave expert evidence that children can have shifting allegiances to parents from ages 5 to 8, and that children can become confused at that time in their development when they can hold both positive and negative views about a parent.
  • At age 10 or 11, children may choose to side with one parent over the other in order to free themselves from emotional conflict and the stress it causes.
  • In children of 12 years old and older the alienation can become extreme, to the point where the child can find his or her own reasons to dislike or hate the alienated parent, even ones which are not real.

The court accepted Dr. Fidler’s evidence that there was a broad range of effects of this type of alienation on a child:

  • Low self-esteem to self-hatred, guilt, feelings of abandonment, feeling of being unloved and unworthy;
  • Self-doubt and doubt about their ability to perceive reality;
  • Simplistic or rigid information processing;
  • Poor differentiation of self;
  • Aggressive and poor impulse control;
  • Where court orders are disobeyed, children learn that it is acceptable not to obey court orders; and
  • Alienated children can lack compassion and remorse and can also develop an ability not to feel guilt.