INTRODUCTION

Social science research and the Convention on the Rights of the Child (CRC) support Children’s participation in post-separation disputes about their care, whether the disputes are resolved by the parents themselves, through negotiation, mediation, or litigation. In Canada, there is significant variation between jurisdictions in philosophy and resources (e.g., private and public) for involving children in family dispute resolution. Methods used include: having a mental health professional prepare a report of a full assessment of the parents and child; or a briefer report prepared by a professional based solely on a couple of interviews with the child; child legal representation; having a child meet with the judge or the mediator or parenting coordinator; a letter or other communication from the child with the court; or through witnesses testifying about what the children told them. There are special concerns in determining how to involve children in cases where there is high conflict, or there are allegations of domestic violence, or a child is refusing to visit their other parent. While it is important for children to be heard, and for them to say what they want, it is also important they should not feel pressured by the court process to ‘take sides’.

This contribution explores the different methods of involving children in post-separation disputes between parents, the advantages and disadvantages of each, and the empirical research about the use of different methods of involving children in the family justice system in Canada. While there is no one method that is suitable for all cases, and for some cases it may be appropriate to use more than one method as the case evolves, children continue to experience challenges in being heard in the family justice system. Our central thesis and focus is that children should be involved in the decision-making process about the plans for their care in a way that respects their needs, interests, and wishes. Including children promotes their long-term welfare by ensuring that decision-makers are properly informed and by giving children a sense of agency and respecting their rights as recognized in the CRC. Hearing from children may also facilitate settlement of the parental dispute, reducing the financial and emotional costs of decision-making.