Family Law
#10 - Children
STANDARD
A lawyer must explain to the client that the best interest of the child is the test considered by the courts in all matters concerning an issue which may impact on a child.1
A lawyer must be aware that there are evidentiary issues that are specific to children.2
Where appropriate, a lawyer should advise a client of the legal requirement not to make a malicious report against a parent or third party. If the client persists in making such a report, the lawyer should consider withdrawing.3
Reference Materials
Notes:
1. Young v. Young, [1993] 4 S.C.R. 3; Divorce Act R.S.C. 1985, c. 3 (2nd Supp.), s. 17(5) - 16(8) Factors; Matrimonial Property Act, R.S., c. 275, s. 26 - The court may disregard any provision of a marriage contract or separation agreement affecting a child where, in the opinion of the court, it is in the best interests of the child to do so; Children and Family Services Act, S.N.S. 1990, c. 5, s. 2 - Best interest is the only test.
2. Fairchild (Ashe) v Ashe, (1991) 103 N.S.R. (2d) 231 (N.S.T.D.) at p.245; Strobridge v. Strobridge, 1994 CanLII 875, 18 O.R. (3d) 753 (C.A.); Wakaluk v Wakaluk, (1976) 25 R.F.L. 292 (Sask. C.A.) at p. 304; Harnish v Harnish, (1998) Carswell N.B. 381 (NBQB); Burgmaier v Burgmaier, (1986) 50 R.F.L. (2d) 1 (Sask. C.A.) at p. 14; Demeter v. Demeter, 1996 CanLII 8111 (ON S.C.); Uldrian v Uldrian, (1988) 14 R.F.L. 2 (d) 26 (Ont. C.A.); Reddin v Reddin, (1992) 32 R.F.L. (3d) 151 (PEI S.C.); Boukema v. Boukema, 1997 CanLII 12247, 31 R.F.L. (4th) 329 (Ont. Ct. J. (Gen. Div.)); Beck v Beck, (1993) 48 R.F.L. (3d) 303 (PEI S.C.); Evidence Act, R.S.N.S. 1989 c.154, s.63. - Children of Tender Years; Canada Evidence Act, R.S.C. 1985, c. C-5, s.16.
3. Children and Family Services Act, S.N.S. 1990, c. 5 s. 23(5), s. 24(8), s. 25(6); See also Wedsworth (2005), 229 N.S.R. (2d) 168 (S.C.) Aff’d at (2005), 229 N.S.R. (2d) 350 (C.A.); MacNeil v. MacNeil, 2005 NSSC 275 (CanLII), N.S.S.C. 275, 236 N.S.R. (2d) 378.
Related Legislation:
Proceedings in Family Division of the Supreme Court in the HRM & CBRM are governed generally by the Civil Procedure Rules but Civil Procedure Rule - Part 13) is of particular relevance.
(New) Civil Procedure Rule 60 - Child and Adult Protection
Children and Family Services Act, S.N.S. 1990, c. 5.
Evidence Act, R.S. c.154 s.63
Family Court Act, R.S.N.S. 1989, c. 159.
Maintenance and Custody Act, R.S.N.S. 1989, c. 160. (Nova Scotia Child Maintenance Guidelines)
Maintenance Enforcement Act, S.N.S. 1994-95, c. 6.
Reciprocal Enforcement of Custody Orders Act, R.S.N.S. 1989, c. 387.
International Agreements:
Hague Convention on the Civil Aspects of International Child Abduction, 25 October 1980 (entered into force 1 December 1983).
Federal Legislation:
Divorce Act R.S.C. 1985, c. 3 (2nd Supp.)
Family Orders and Agreements Enforcement Assistance Act, R.S.C. 1985, c. 4 (2nd Supp.).
Federal Child Support Guidelines, SOR/97-175.
Canada Evidence Act, C-5, s.16
Additional Commentary:
Foley v Foley, 1993 CanLII 3400 (NS S.C.), 124 N.S.R (2d) 198 at p. 201 - gives a nonexhaustive list of the factors to be taken into account when considering the best interest of the child.
Nova Scotia Community Service v S.C.P, 2006 NSFC 40 (CanLII), N.S.J. No. 567 (F.Crt) - Address issues relating to a child early on in the litigation process to avoid unnecessary delay – ethical considerations.
L.F. and C.F. v. C.A.S. of Halifax, (1984) 40 R.F.L. (2d) 402 (N.S. Co. Ct.) - Children and Family Services Act - Solicitor-client privilege – Expert report.
MacLean v. MacLean, 2002 NSSC 5 (CanLII) - Full financial disclosure will almost automatically have cost consequences because compliance of such a fundamental requirement should rarely require the Court's intervention - usually, only if there are major practical/time/confidential issues that need to be addressed.
Ways of getting a child’s views in front of a court:
Uldrian v Uldrian, (1988) 14 R.F.L. 2 (d) 26 (Ont. C.A.)
Reddin v Reddin, (1992) 32 R.F.L. (3d) 151 (PEI S.C.)
Boukema v. Boukema, 1997 CanLII 12247, 31 R.F.L. (4th) 329 (Ont. Ct. J. (Gen. Div.))
Beck v Beck, (1998) 48 R.F.L. (3d) 303 (P.E.I.S.C.)
Fairchild (Ashe) v Ashe, (1991) 103 N.S.R. (2d) 231 (N.S.T.D.)
Demeter v. Demeter, 1996 CanLII 8111 (ON S.C.) - The parties to a proceeding can agree as to the manner in which a child witness should be dealt with.
Burgmaier v Burgmaier, (1986) 50 R.F.L. (2d) 1 (Sask. C.A.) – A child’s wishes were not considered at trial and this was determined to be an error of law.
Jandrisch v Jandrisch, (1980) 16 R.F.L. (2d) 239 (Man. C.A.) – possible determination of error of law if a child’s wishes are relied on at trial when the process of procuring the evidence is questionable.
Linton v Clarke, 1994 CanLII 8894, 21 O.R. (3d) 568, 76 O.A.C. 363, (ON S.C.D.C.) – Assessments should only be order if there are clinical issues and not just a vehicle to promote settlement.
Wakaluk v Wakaluk, (1976) 25 R.F.L. 292 (Sask. C.A.) at p. 304 – procedural - taking evidence from an expert who met with a child.
Strobridge v Strobridge, (1992) 42 R.F.L. (3d) 154 (Ont. Gen Div.) - One party objected to the child’s representative orally presenting the child’s view; - One party objected to the child’s representative orally presenting the child’s view; Strobridge v Strobridge, (1994) 18 O.R. (3d) 753 (Ont. C.A.) – Generally agreed that the child’s view can be presented to the Court by the child’s representative.
Harnish v Harnish, (1998) Carswell N.B. 381 (NBQB)
Paul v Paul, (1998) Carswell N.B. 84 (Q.B.)
Weaver v Tate, (1989) 24 R.F.L. (3d) 266 (Ont. H.C.) aff’d (1990) 28 R.F.L. (3d) 188 (Ont. C.A.)
DOWNLOADS
Related Ethics:
For the Family Division of the Supreme Court in the HRM & CBRM; while family law matters outside the HRM and CBRM (except for Divorce and Property) are dealt with in the Family Court. For Family Court Forms outside the HRM and CBRM when you are dealing with divorce or division of property, you will go to the Supreme Court.
Practice Memoranda:
Supreme Court Family Division (Jan 29, 2010)
Re: CPR Practice Memoranda
National Council of Juvenile and Family Court Judges
Legal Ethics and Professional Conduct: A Handbook for Lawyers in Nova Scotia, 2nd ed. (Halifax: Nova Scotia Barristers’ Society, 1998) c. 5-7, 18.
Resources:
Greene, Elizabeth / Children’s voices, children’s interests and children as litigants in family matters (August 2008) CBA Newsletter.
Federal Government / Parenting after separation and divorce
Parent Information Program - Nova Scotia Supreme Court: Family Division
Community Resources:
Legal Information Society website:
legalinfo.org
Directory of Nova Scotia Family Resource Centres
APNS Association of Psychologists - Frequently Asked Questions
About Child Abuse - Nova Scotia Department of Community Services
Loose Leaf Series:
McLeod, James G./ Child Custody Law and Practice, loose leaf (Scarborough, Ont.: Carswell, 1992). [KB 137 M165 1992]
Wilson, Jeffery. / Wilson on Children and the Law, (3d ed.), loose leaf (Markham, Ont.: Butterworths, 1994) [KB 137 W749 1994]
Family Law Resource list from Library & Information Services of the Nova Scotia Barristers' Society
ARTICLES and BOOKS
Chewter, C. / "Violence Against Women and Children: Some Legal Issues" (2003) 20 Can. J. Fam. L. 99.
Anderson, John; Bordage, Mona / When children lie - the S.A.I.D. syndrome (sexual allegations in divorce) (April 1993), in Family Law 1993. [KB 135 C760 1993]
Casey, Patrick L / Children's wishes (April 1993), in Family Law 1993. [KB 135 C760 1993]
McLeod, James G. / Child Custody Law and Practice, looseleaf (Scarborough, Ont.: Carswell, 1992) KB 137 M165 1992
Birnbaum, Rachel; Fidler, Barbara Jo; Kavassalis, Katherine / Child custody assessments : a resource guide for legal and mental health professionals -- Toronto : Thomson Carswell, 2008. [KB 137 B617 2008]
Continuing Legal Education Society Of British Columbia / Children's participation in family justice processes -- Vancouver, B.C. CLEBC, 2007. [KB 137 C762C 2007]
Grover, Sonja C. / The child's right to legal standing -- Markham, Ont. LexisNexis Butterworths, 2008 [KB 137 G883 2008]
Thompson, Rollie / Children Should be Heard but Not Seen: Children’s Evidence in Protection Hearings, (1991-1992) 8 C.F.L.Q. 1
Huddart, Justice C. and Ensminger, J.C. / Hearing the Voice of Children (1991-1992) 8 C.F.L.Q. 95
Let the Child Speak Out (February 1999) by Justice R. James Williams
The Duty to Report Child Abuse, 17 C.F.L.Q. 277.
Schmitz, Cristin. "Bullying spouse gets harsh reprimand", (July 2009) in The Lawyers' Weekly.
Borrowing books, online help, reference questions - For all information requests, members may contact Library & Information Services by telephone at 1-866-219-1202 (toll-free) or 902-425-BOOK (2665), by fax at 902-422-1697, or by email at nsbslib@nsbs.org web: Library
Approved by Council on March 25, 2011