How a Child's Views Are Heard in British Columbia Family Court

When parents separate and cannot agree on parenting, many ask the same thing: what will the judge actually hear from my child? Some parents worry their child will be put on the spot. Others worry their child's voice will be missed.

In British Columbia the Family Law Act gives the court several ways to learn what a child thinks, and none of them makes the child the decision-maker. This article explains the options in plain language so you can talk them through with a lawyer.

This article covers the law of British Columbia.

The starting point: best interests only

In making an agreement or order about guardianship, parenting arrangements or contact, the parties and the court must consider the best interests of the child only. The child's views are part of that picture, not a replacement for it.

The list of best interests factors includes the child's views, unless it would be inappropriate to consider them, alongside the child's health and emotional well-being, the strength of the child's relationships, the history of care and the child's need for stability. The Act sets no age at which a child chooses, so the views are weighed with the other factors. Government guidance describes best interests as a test of what best protects a child's physical, psychological and emotional safety.

Ways a court can learn what a child thinks

There is no single method. Which one is used depends on the case, and the court has to decide what is appropriate. The main tools are compared below.

A views of the child report is distinct from a s. 211 report. The first passes on what the child says; the second can go further and assess needs or a party's ability to meet them.

Does a child have to testify?

The Act gives the court some flexibility about how a child's evidence is received, rather than one fixed method. Having regard to the child's best interests, a court may admit reliable hearsay evidence from an absent child or give other directions about how the child's evidence is received.

Whether a particular child would be asked to speak to anyone, and how, depends on the court's directions in that case. Parents should not coach a child or ask a child to pick a side. A lawyer can explain which route suits your situation.

Reports, lawyers for children and who pays

• A s. 211 report goes to the court and, unless the court orders otherwise, to each party.
• The court can allocate the fees for a s. 211 report to a party.
• A court may appoint a lawyer for the child if the conflict between the parties significantly impairs their capacity to act in the child's best interests and the appointment is necessary to protect those interests.
• The court may allocate that lawyer's fees among the parties.

The cost of a views of the child report depends on who provides it, so ask before agreeing to one. Parents sometimes assume a lawyer for the child is routine. The test is high: it turns on serious conflict between the parties and necessity.

What to do next

• Write down the child's routine, schooling, health and relationships, since these are best interests factors.
• Keep conversations with your child calm and neutral; avoid discussing the court case.
• Ask a lawyer whether a views of the child report, a s. 211 report or neither suits your case.
• Raise any family violence concerns early, because the court must consider them.
• Ask who would pay for any report before you agree to one.

Get legal advice before you ask the court for any of these steps, because the right choice depends on your child's age, the level of conflict and what is being decided.

Frequently asked questions