INTRODUCTION

While traditionally Canadian courts and legislatures discouraged involvement of children in family proceedings, there is growing acceptance that children's views and wishes must be considered by decision-makers in these proceedings. However, while Canadian law now requires that the perspectives and preferences of children ‘shall’ be considered, children do not have a ‘right of participation’, and there is great variation in how, and indeed whether, their views are considered in family proceedings.

Canada has 10 provinces and three territories with an estimated population of 38,008,005 people as of 31 December 2020. There are no national statistics on the number of marriages, divorces or parental separations in Canada, or regarding the number of children involved in family disputes, and only limited provincial data on family proceedings, with no systemic information about how children's views are considered. However, census and tax data reveals that the marriage and divorce rates have been falling and that over one fifth of couples cohabit outside of marriage rather than marrying. While the number of children affected by parental separation is not known, a 2011 General Social Survey (GSS) found that 24% of separated or divorced parents in Canada had children under the age of 18 years.

In an 18-month longitudinal study of parents in Ontario and Quebec involved in family proceedings involving children (both represented by legal counsel and self-represented), researchers found that approximately 12 months after an initial in-person survey, only 13 out of 113 cases had an assessment by a mental health professional, a report from a social worker on the child's views, or child legal representation ordered by the court. In other words, only 12% of parenting disputes that resulted in continued court proceedings had a mental health professional or lawyer obtain children's views and preferences.

Another Ontario study of 1,000 court files involving parental disputes found that the Ontario Office of the Children's Lawyer 6 was only involved in 3.1% of court cases, which resulted in child legal representation being provided in 2.2% of cases and a clinical investigation report (e.g. publicly paid report) in 0.9% of cases. Mental health professionals in private practice prepared evaluation reports in only 0.5% of cases in the court sample.