CANADA Law and Practice Contributed by: Lorne MacLean, KC, Fraser MacLean, Sophie Bartholomew and Rana Yavari, MacLean Law
Status of Agreements Reached As with financial matters, agreements reached through mediation, collaborative law, or negotiation in child‑related disputes are generally treated as domestic contracts across Canada. Once deemed valid, these agreements are binding and enforceable in court. In many provinces, a signed agreement can be filed with the court and enforced as if it were a court order. This allows access to enforcement agen ‑ cies, such as Maintenance Enforcement Programmes. To be enforceable, such agreements typically must: • be in writing; • be signed by both parties; • be witnessed (in most provinces); • be based on full and honest financial disclosure; and • be entered into voluntarily, without duress or unconscionability. However, courts always retain the authority to vary or decline to enforce child‑related terms if they are not in the child’s best interests or if they do not comply with the Federal Child Support Guidelines. 3.5 Media Access and Transparency in Children Proceedings See 2.8 Media Access and Transparency in Financial Proceedings . The open‑court principle is significantly qualified in child‑related cases. Canadian courts consistently recognise that the best interests of the child are a paramount consideration and may justify limits on openness, including restrictions on publication and access to court records. Although there is no blanket prohibition on media reporting of child‑related family law proceedings in Canada, courts routinely restrict the publication of information that could identify a child, such as names, photographs, school details, or other identifying cir ‑ cumstances.
them at the centre of parental conflict. Instead, courts usually rely on alternative methods designed to under ‑ stand the child’s perspective while minimising harm, such as: • judicial or professional interviews; • written reports that convey the child’s views; • parenting or custody assessments; or • limited sworn or recorded statements where appro ‑ priate. When considering a child’s views, courts evaluate the child’s age, maturity, independence of thought, and the circumstances under which the views were expressed. They assess consistency, context, and possible influence. Although a child’s perspective can be influential, it is not decisive. Ultimately, responsibility for the out ‑ come rests with the judge, who must weigh the child’s views alongside all other evidence to determine what arrangement best serves the child’s interests. 3.4 ADR in Child Law Matters Much like the Canadian court’s approach in financial matters, the courts also encourage the use of Alter ‑ native Dispute Resolution (ADR) in child‑related fam ‑ ily law issues – such as parenting arrangements and child support – to reduce conflict and promote the child’s best interests. Under Section 7.3 of the Federal Divorce Act, par ‑ ties have a statutory obligation to attempt to resolve child‑related matters through family dispute resolution processes, such as mediation, unless doing so would be inappropriate. Courts retain the discretion to waive ADR requirements where circumstances such as fam ‑ ily violence, significant power imbalances, or urgent issues are present. Lawyers likewise have a statutory duty to encourage ADR and to inform their clients of the available dispute resolution options. ADR Mechanisms See 2.9 ADR in Financial Matters , for a summary of the available ADR mechanisms. The example pro ‑ vided there – such as British Columbia’s Notice to Mediate – applies equally to child‑related family law matters.
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