Thank you very much.
I'm Lisa Wolff. I'm the director of policy and research at UNICEF Canada. You may know UNICEF as the United Nations International Children's Emergency Fund. We have a presence in more than 190 countries. What we do in low- and middle-income countries is different from our role in high-income countries, but the one thing that unites UNICEF everywhere is that we work to promote decision-making, including legislation, consistent with children's universal human rights, which are their entitlements and our obligations.
The Convention on the Rights of the Child is really a fundamental instrument that is a practical tool to help make decisions and make legislation that is truly in the best interests of children. It's 29 years old tomorrow on National Child Day in Canada. I've been working with the convention in policy for about 20 years. As I reflect on one of the greatest challenges around supporting the realization of children's rights, it's in the recognition that children have the ability to participate in decisions that affect them, that they have capacity even from a very young age. And when they do that, it's a really strong, protective factor and it makes decisions better.
I'm really pleased to be here because I think this bill, Bill C-78, proposes some improvements that really help Canada bring its obligations into alignment with legislation around divorce. Close to a quarter of Canada's children and youth are affected by divorce, as you know, so the efforts that you have under way to make this process better for them and make the outcomes better for them, at least in terms of the proposed changes, are significant.
UNICEF Canada very much welcomes, in particular, the measures that affirm that children's best interests are the priority, and that help define to some extent—at least better define—what those best interests entail. These measures expand protections for children, support parents to fulfill their roles and responsibilities, and reduce delays, costs and adversity for families, but more specifically go towards better outcomes.
Enacting the changes that are proposed in Bill C-78, by and large, we think, would bring Canada into greater alignment with children's human rights obligations and entitlements and with the intention of the Divorce Act, as stated in its preamble.
Essentially, I'm speaking to two things: the call on us to give priority as the decision-makers to children's best interests in all decisions that affect them, and to recognize that when young people have the opportunity to participate in decisions, the process and outcomes are, again, generally better for all of them.
I think that affirming, as the bill does, the best interests of the child as a common north star for all parties, for everyone involved in the process of divorce, is laudable. Few object, of course, to giving priority to the best interests of the child. I think you will not hear witnesses say we shouldn't do that, but the challenge has always been that there are very divergent views about what “best interests” is. It was used to justify residential schools in Canada.
What the convention does is give a definition of what “best interests” is. It actually offers three approaches that are really helpful in deciding best interests and establishing what those are.
One is that we can think about best interests as the option for the child or children that best supports all of their interconnected rights, their human rights that are in the convention. These are things like access to education or supports for disabilities or language and culture.
Second, the views of the child really indicate what is in their best interests. They are one of the strongest clues we have to what will actually be in their best interests.
The third approach is that a case-by-case assessment of best interests, wherever possible, tends to make the most sense in legislation. Sometimes, for administrative reasons, we have to set arbitrary minimum ages, such as for driving or marriage, but when it comes to children in cases of divorce we can make case-by-case decisions and those will look different for every child in terms of the balance of the rights that can best be realized to support them.
Fundamentally, we applaud the way that Bill C-78 creates new criteria for shared understanding to apply the best interests. We think it's a good move to offer some clear criteria. It supports an overall assessment and balancing of many different factors that are consistent with children's rights, as opposed to a hierarchy, which we often think of in terms of certain needs that have to be met first and other things that are less important. Taking the convention's approach, we look at many different interacting factors, and the balance will be different for different children. It's not a checklist of requirements in which we have to meet every single element of consideration for every single child.
I think that flexibility and a case-by-case situational approach are really key, and the criteria just help us to remember to think of certain things, and help decision-makers, the courts and the adjudicators remember what to think about when they're thinking about best interests.
The other aspect of best interests that I mentioned, the importance of children's views, is also really welcome in how the BIC criteria, and particularly proposed paragraph 16(3)(e), recognize that children's views and preferences are a factor to be considered. Importantly, the bill doesn't set an arbitrary minimum age for doing that. It also recognizes that some children may not wish to participate in expressing their views.
We have just a few changes in the bill, ways to better protect the rights of children to have their best interests considered and their views considered. I think there is a bit of a paradox in setting out best interest criteria, because then “best interest” does take on a certain meaning and weight based on what is included, and therefore what is not included also becomes important. We would recommend that explicit consideration be given to children's convention rights as other factors that can be brought in.
The best interest criteria mention stability, and they pay a lot of attention to violence and protection, which are critical, but rights to access education or, as I mentioned, special supports for disabilities and to continue language and culture could be brought into consideration if it were mentioned that the convention rights are important considerations in determining the best interests.
Second, in terms of the views of the child, currently those are just one of many considerations in the BIC criteria, and we have some challenges around consideration of due weight for maturity. That's language you often hear in legislation around children's voice: give due weight based on the age and maturity of the child. We would say that due weight has always been a problem, because children can offer views, which is one half of the equation, but they're not always given import. They're not always persuasive, and they can easily be ignored. I think we would want to emphasize that even the views of young children, who may not have maturity, should be considered and taken into account.
One way to correct for some of the challenges of actually taking kids' views into account is to consider elevating the views of the child as a primary consideration. I am careful in recommending that, because I feel that once you start elevating certain priorities, you again get into this hierarchy rather than a careful balancing, but if we were to elevate any consideration that is not currently there, it would be that the views of the child need to be given due weight and considered in decision-making.
I also think there's an onus that could be clearer around reducing barriers. We acknowledge that not all children may wish to express their views, and for good reason, but I think the onus is to reduce barriers, whether by helping to ensure that they are informed or through third parties that could help them, or through views of the child reports, to make it safe and to make it a good experience for them.
Thank you very much.