Views, Perspectives and Experiences of Children in Family Cases

40 Pages Posted: 19 Dec 2016

See all articles by Nicholas Bala

Nicholas Bala

Queen's University - Faculty of Law

Patricia Hebert, Q.C.

Gordon Zwaenepoel Barristers and Solicitors; University of Alberta

Date Written: 2016

Abstract

There has been a dramatic increase over the past few decades in understandings of child development and a growing recognition of the importance of the rights of children, which has resulted in fundamental changes in the treatment of children in Canada’s justice system. Major legislative reforms have made the criminal justice system more sensitive to the capacities and needs of child witnesses. Unlike in the criminal area, there has not been substantial legislative reform regarding the evidence from children in family cases, though consistent with Article 12 of the Convention on the Rights of the Child there is increased recognition of the importance of this type of evidence. There is significant variation across Canada in how children’s evidence is received in these proceedings. The methods for receiving the evidence of children in family proceedings, including through hearsay from parents, reports from mental health professionals, judicial interviews with children, testimony in court, views of the child reports, and lawyers for children. There are different approaches depending on whether the matters at issue are factual (did abuse occur) or concern the wishes of children, as well as between family and child protection cases. A central argument of this paper is that there is not a single “best way” to receive this evidence, but that counsel and judges should take into account a range of factors and always ensure that, in some way, the evidence of children is considered by the court and given appropriate weight.

Keywords: Children's evidence, Divorce & Children, Rights of Children, Family Law & Children

Suggested Citation

Bala, Nicholas C. and Hebert, Patricia, Views, Perspectives and Experiences of Children in Family Cases (2016). Queen's University Legal Research Paper No. 082, Available at SSRN: https://ssrn.com/abstract=2887623 or http://dx.doi.org/10.2139/ssrn.2887623

Nicholas C. Bala (Contact Author)

Queen's University - Faculty of Law ( email )

Macdonald Hall
Kingston, Ontario K7L 3N6 K7L3N6
Canada
613-533-6000 ext 7-4275 (Phone)
613-533-6509 (Fax)

Patricia Hebert

Gordon Zwaenepoel Barristers and Solicitors ( email )

#104 Park Plaza 10611 - 98 Avenue
Edmonton, Alberta T5K 2P7
Canada

University of Alberta ( email )

Edmonton, Alberta T6G 2R3
Canada

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