The new Family Law Act in B.C. requires that the court take into consideration the views of a child in a custody application unless it would be inappropriate to do so.
Section 37 of the Family Law Act states:
37 (1) In making an agreement or order under this Part respecting guardianship, parenting arrangements or contact with a child, the parties and the court must consider the best interests of the child only.
(2) To determine what is in the best interests of a child, all of the child’s needs and circumstances must be considered, including the following:
(a) the child’s health and emotional well-being;
(b) the child’s views, unless it would be inappropriate to consider them;
(c) the nature and strength of the relationships between the child and significant persons in the child’s life;
(d) the history of the child’s care;
(e) the child’s need for stability, given the child’s age and stage of development;
(f) the ability of each person who is a guardian or seeks guardianship of the child, or who has or seeks parental responsibilities, parenting time or contact with the child, to exercise his or her responsibilities;
(g) the impact of any family violence on the child’s safety, security or well-being, whether the family violence is directed toward the child or another family member;
(h) whether the actions of a person responsible for family violence indicate that the person may be impaired in his or her ability to care for the child and meet the child’s needs;
(i) the appropriateness of an arrangement that would require the child’s guardians to cooperate on issues affecting the child, including whether requiring cooperation would increase any risks to the safety, security or well-being of the child or other family members;
(j) any civil or criminal proceeding relevant to the child’s safety, security or well-being.
(3) An agreement or order is not in the best interests of a child unless it protects, to the greatest extent possible, the child’s physical, psychological and emotional safety, security and well-being.
(4) In making an order under this Part, a court may consider a person’s conduct only if it substantially affects a factor set out in subsection (2), and only to the extent that it affects that factor.
The Family Law Act does not say how old a child must be before their views are considered but the older the child is the more weight will be given to their views and usually a child will need to be at least 10 years old for their views to be given much weight.
There are several ways to obtain the views of a child. One is to have the child testify in court or speak to a judge in their chambers. The more usual method is to have the child interviewed by a counsellor, a child psychologist or a lawyer who has been trained in how to record the child’s answers. It is important that the child not be asked leading questions and that they not be interviewed in the presence of either of their parents.
The interviewer must take careful notes to record both the questions they have asked the child and the child’s responses. They should also screen to determine what has previously been discussed with the child to ensure the child has not been coached by one parent.
