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Difference between revisions of "The Rights of Children and Youth in Family Law Matters"
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The Rights of Children and Youth in Family Law Matters (view source)
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{{JP Boyd on Family Law TOC|expanded = children}}{{JPBOFL Editor Badge | {{JP Boyd on Family Law TOC|expanded = children}}{{JPBOFL Editor Badge | ||
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}}Neither the ''Divorce Act'' nor the ''Family Law Act'' talk about parenting after separation in terms of the rights of ''parents'', ''guardians'' or ''spouses''. While adults who fit into these categories are entitled to ask for orders about decision-making and parenting time, if they can't reach an agreement about those things on their own, decisions about parenting after separation must be made taking into account only the best interests of the children, including the children's views and preferences. | }}Neither the ''Divorce Act'' nor the ''Family Law Act'' talk about parenting after separation in terms of the rights of ''parents'', ''guardians'' or ''spouses''. While adults who fit into these categories are entitled to ask for orders about decision-making and parenting time, if they can't reach an agreement about those things on their own, decisions about parenting after separation must be made taking into account only the best interests of the children, including the children's views and preferences. | ||
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==Introduction== | ==Introduction== | ||
The rights children and youth have in family law disputes can be boiled down into two categories: the ''human rights'' children and youth have, under Canada's human rights laws and the [https://www.ohchr.org/en/instruments-mechanisms/instruments/convention-rights-child United Nations Convention on the Rights of the Child]; and, the ''legal rights'' children and youth have as people who are impacted by their parents' dispute, under the federal ''[[Divorce Act]]'' and the provincial ''[[Family Law Act]]''. Of course, it's important to remember that in British Columbia a "child" is someone who is younger than 19, the age of majority in this province under the aptly-named ''[https://canlii.ca/t/84gw Age of Majority Act]''. As a result, someone who is a ''child'' can also be a parent, a guardian or a spouse. The rights of youth who are parents, guardians or spouses are the same rights | The rights children and youth have in family law disputes can be boiled down into two categories: the ''human rights'' children and youth have, under Canada's human rights laws and the [https://www.ohchr.org/en/instruments-mechanisms/instruments/convention-rights-child United Nations Convention on the Rights of the Child]; and, the ''legal rights'' children and youth have as people who are impacted by their parents' dispute, under the federal ''[[Divorce Act]]'' and the provincial ''[[Family Law Act]]''. Of course, it's important to remember that in British Columbia a "child" is someone who is younger than 19, the age of majority in this province under the aptly-named ''[https://canlii.ca/t/84gw Age of Majority Act]''. As a result, someone who is technically a ''child'' can also be a parent, a guardian or be a spouse. The rights of youth who are parents, guardians or spouses are the same rights adults who are parents, guardians or spouses have. | ||
The human and legal rights of children and youth are just as important as the human and legal rights of adults, perhaps even more important because of the vulnerability resulting from their age. However, it's really important that adults remember that the human and legal rights of children exist for the benefit of children. I have too often seen parents running the "rights" of their children up the flagpole in their family law dispute, trying to use their children's rights to benefit their own position in court or before an arbitrator. This happens most frequently when parents are engaged in an extraordinary degree of conflict with each other. | The human and legal rights of children and youth are just as important as the human and legal rights of adults, perhaps even more important because of the vulnerability resulting from their age. However, it's really important that adults remember that the human and legal rights of children exist for the benefit of children. I have too often seen parents running the "rights" of their children up the flagpole in their family law dispute, trying to use their children's rights to benefit their own position in court or before an arbitrator. This happens most frequently when parents are engaged in an extraordinary degree of conflict with each other. | ||
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Children's basic human rights are described in the [https://www.ohchr.org/en/professionalinterest/pages/crc.aspx United Nations Convention on the Rights of the Child]. This international agreement was passed by the United Nations General Assembly — the parliament of the United Nations — in 1989 and was signed by Canada in 1991. The convention has the force of law in Canada, and Canadian laws must be interpreted and applied in a way that fits with the rules and requirements of the convention. | Children's basic human rights are described in the [https://www.ohchr.org/en/professionalinterest/pages/crc.aspx United Nations Convention on the Rights of the Child]. This international agreement was passed by the United Nations General Assembly — the parliament of the United Nations — in 1989 and was signed by Canada in 1991. The convention has the force of law in Canada, and Canadian laws must be interpreted and applied in a way that fits with the rules and requirements of the convention. | ||
The convention describes the basic human rights that all children have, the | The convention describes the basic human rights that all children have, the way that human rights are described in British Columbia's ''[https://canlii.ca/t/843q Human Rights Code]'' and in the federal ''[https://canlii.ca/t/7vh5 Canadian Human Rights Act]''. In addition to the rights that adults have, the convention says that children also have the right to: | ||
*be free from physical and mental violence, abuse and mistreatment, | *be free from physical and mental violence, abuse and mistreatment, | ||
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*be told about both the result reached and the way in which their views have been taken into account. | *be told about both the result reached and the way in which their views have been taken into account. | ||
Needless to say, the number of times these things don't happen is much, much greater than the number of times they do. | |||
==The ''Divorce Act''== | ==The ''Divorce Act''== | ||
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<blockquote><tt>In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.</tt></blockquote> | <blockquote><tt>In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.</tt></blockquote> | ||
Children have the right to be raised as well as possible, while their parents are together and after they separate. Parenting apart can be challenging, but the fact that a child's parents have separated doesn't deprive | Children have the right to be raised as well as possible, while their parents are together and after they separate. Parenting apart can be challenging, but the fact that a child's parents have separated doesn't deprive children of their right to good parenting. The best-interests factors described in the ''Divorce Act'' are more than a simple shopping list. If you think about them, each factor is vitally important to the quality of life and the quality of care of children whose parents are living apart. They're not a shopping list, they're a guide to parenting after separation. | ||
Remember that it's the children who have the right to be raised and cared for in the best possible way, and it's the children who have the right to the best possible arrangements for their parenting. | Remember that it's the children who have the right to be raised and cared for in the best possible way, and it's the children who have the right to the best possible arrangements for their parenting. | ||
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==The ''Family Law Act''== | ==The ''Family Law Act''== | ||
The provincial ''[[Family Law Act]]'' takes the same child-centred approach as the ''Divorce Act'', using the terms ''parental responsibilities'' and ''parenting time''. | The provincial ''[[Family Law Act]]'' takes the same child-centred approach as the ''Divorce Act'', using the terms ''parental responsibilities'' and ''parenting time''. It also says, at section 37(1), that when making decisions about parenting after separation, "the parties and the court must consider the best interests of the child only," and provides a list of specific factors to consider at section 37(2). The factors that must be considered when family violence is an issue are listed in section 38. | ||
It's important to know that the duty to make decisions that are in the best interests of children falls on both judges and parents under section 37 of the ''Family Law Act''. (Section 19.10(6) imposes the same duty on arbitrators.) Parents have this duty whether they're resolving their disagreements in court or trying to negotiate a resolution out of court. | It's important to know that the duty to make decisions that are in the best interests of children falls on both judges and parents under section 37 of the ''Family Law Act''. (Section 19.10(6) imposes the same duty on arbitrators.) Parents have this duty whether they're resolving their disagreements in court or trying to negotiate a resolution out of court. | ||
