CANADA Law and Practice Contributed by: Heather Hansen, Shannon Beddoe, Maureen Edwards and Victoria Lunetta, McCarthy Hansen & Company LLP
Views of the Child The child’s perspective, views and preferences are important factors for the court to consider in parenting cases. Although children are able to testify, it is widely accepted that it is harmful and not in the best interests of children to be brought into the courtroom. This reality must be balanced by the principle that children have a right to have their views heard on matters that concern them, as articulated under Article 12 of the United Nations Conventions on the Rights of the Child 1989 (to which Canada is a signatory). In order to protect children from the conflict between the parties, some provinces will order that judicial interviews take place. Frequently, provincial statute mandates that the interview be recorded and that the child be entitled to have counsel present during the interview. Depend - ing on the province, courts may appoint a chil - dren’s lawyer representative to evaluate and represent the child’s wishes or interests within the litigation. Generally, the court is obliged to – if possible – take into consideration the views and preference of the child to the extent that the child is able to express them and the views are deemed sufficiently independent and reli - able. Where applicable, the child’s views will be given weight proportionate to the child’s age and maturity, among other factors. 3.4 ADR Parties can decide to use ADR at any point in their separation, including before starting any proceedings in court. The ADR process can be used to resolve all issues, no matter how big or how small. The parties can even choose to have all interim issues dealt with by ADR yet have the final issues resolved in the courtroom. The most common forms of ADR for family law disputes are mediation, arbitration, mediation-arbitration,
lent concept in Canadian family law cases. It is premised on one parent choosing to damage the character of their spouse and this, in turn, dam - aging the child’s relationship with the “rejected” parent. Although there is no one approach taken by courts in evaluating alienation, courts tend to focus on the harmful impact alienation has on the alienated children. The courts have generally relied on the wide plethora of social science literature to guide their analysis of whether one party is exempli - fying alienating behaviour and whether children are exhibiting indicia of exposure to alienating conduct by a parent. The court will look to a variety of behavioural cues from both the alienat - ing parent and the alienated child as indicators of the presence of parental alienation, serving as predictors of future conflict and relationship dysfunction. Some factors that the court will consider include (but are not limited to): • a parent making derogatory statements about the other parent; • a parent including the children in the litigation; • a parent making the child feel guilty about spending time with the other parent; and • a parent falsifying allegations about emotion - al, physical and sexual abuse. The court will then look for a corresponding irra - tional and unfounded rejection of the alienated parent. The remedies order in a finding of alienation have included parental educational programmes, reconciliation therapy, and changes to custody arrangements. See MM(V) v CMV (2017) for an overview of alienation literature.
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