Background

The Convention on the Rights of the Child (Convention) was adopted by the United Nations in 1989 and ratified by Canada in 1991. According to the Convention, children have a right to participate and be heard in judicial and administrative proceedings that affect them. However, Canada has no specific legislation implementing the terms of the Convention, which means that it has not been incorporated directly into Canadian law. Rather, Canada takes the position that its laws, policies and practices already comply with its obligations under the Convention.

As a result, there is a lack of clarity and guidance on how to consider the voice of the child in court matters in Alberta and no standard approach to implementing children’s rights under the Convention.

Need for reform

Historically, children have not been involved in family dispute decisions or proceedings affecting them because conventional thought was that they lacked the ability to participate and needed to be protected from the turmoil of parental conflict.

It has now become clear that children not only have a right to express their views but that they may experience better outcomes if they feel that they have been heard. Participation in decisions affecting family dynamics can help children adapt to changing circumstances. Hearing their views also puts the focus back on the child’s best interests, and often reduces the intensity and duration of the conflict.

What is less clear is how to best present the voice of the child in family disputes and, in particular, what programs and services should be available to facilitate meaningful participation by children. There are also many factors that may affect the manner and extent of a child’s involvement including, but not limited to, the age and maturity of the child, the matters at issue, the willingness of the parents to consider the child’s views, and the availability of resources.

ALRI’s law reform project on the Voice of the Child will proceed in phases. Phase One will have a public legal education focus, and Phase Two will consider whether Alberta legislation should expressly recognize the child’s right to be heard in matters affecting them.