Can a Child's Voice Be Heard in British Columbia Family Mediation?

Many parents ask whether their child should have a say during a separation, and whether the child should come to mediation. There is no simple answer, and the right approach depends on the child, the family and the professional you work with.

This article explains what British Columbia's Family Law Act says that matters for this question, what to ask a mediator, and the risks to think about before involving a child. How a child's views are gathered in a particular process varies, so confirm the details with the mediator or a lawyer.

This article covers the law of British Columbia.

Why the child's interests come first

Mediation is a form of family dispute resolution, a process parties use to try to resolve disputed issues outside court. Whatever process you choose, a family dispute resolution professional must tell you that agreements and orders about guardianship, parenting arrangements and contact with a child must be made in the best interests of the child only.

That rule is the starting point for any question about your child's voice. The focus is on what is best for the child, which is not always the same as what the child says they want.

How a child's perspective may come into the process

Parents sometimes bring a child's perspective into a dispute through the mediator, a counsellor or another professional, rather than having the child speak in the parents' meeting. The methods vary from one professional to another, so ask directly how a mediator handles a child's views, if at all.

Family justice counsellors help people reach agreements on guardianship, parenting arrangements and contact, and they also work as accredited mediators. They do not provide legal advice. Their services are free, and you do not have to start the court process to use them.

If you are in court, a judge at a Supreme Court judicial case conference may refer you to a family justice counsellor or, with consent, to another family dispute resolution professional.

Risks to think about

Involving a child carries real risks, and each is worth discussing with a professional before you decide.

• A child may feel pressure to choose between parents or feel responsible for the outcome.
• What a child says may be repeated to the other parent, which can strain the child's relationships.
• A child's wishes are one input only, since the decision must be made in the child's best interests.
• Where there is family violence, a child's exposure to it, direct or indirect, is itself part of the legal definition.

Screening, qualifications and review of agreements

A family dispute resolution professional must assess whether family violence may be present and, if so, consider how far it affects the safety of a party or family member and the party's ability to negotiate a fair agreement. The professional must also discuss which types of family dispute resolution are advisable and tell you about other resources they know of.

Only a mediator qualified as a family dispute resolution professional may conduct a mediation in a family law dispute. Qualifications include being a member in good standing of the Law Society of British Columbia with its training and practice requirements, or meeting other listed qualifications, including at least 14 hours of family violence training.

Once you reach an agreement, a parenting-arrangements agreement is binding only if it was made after separation, or when the parties are about to separate and intend it to take effect on separation. If it is filed in court it is enforceable as if it were a court order. The court must still set aside or replace all or part of it if satisfied that it is not in the child's best interests.

What to do next

• Ask any mediator whether and how they take a child's views into account, and what the risks are for your child.
• Confirm the mediator is qualified as a family dispute resolution professional.
• Tell the mediator about any safety concerns at the start, since they are required to screen for family violence.
• Think about whether your child needs support from a counsellor outside the mediation.
• Talk to a family lawyer before you sign anything about parenting.

Frequently asked questions