In the recent case of S.S.C.M v. A.C.W., 2024 BCSC 1694, Mr. Justice Morley refused to recognize a Texas court’s order that the children reside in Texas (rather than their current home of B.C.) on the basis, in part, that:
The Texas Order principally at issue here was made without hearing the Children’s views. Having their views considered in decisions of fundamental importance to them is a right of children in Canada. Recognizing the Texas Order would therefore be contrary to public policy in British Columbia.
Justice Morley’s detailed analysis of this issue can be found in paragraphs 52 through 71 of the judgment rendered September 11, 2024. He confirms that this finding is based on the United Nations Convention on the Rights of the Child (in particular Article 12), ratified by Canada and signed, but not ratified, by the U.S.
He concludes:
[70] On the evidence before me, both Children are capable of forming their own views and both oppose moving to Dallas. When they expressed their opposition, they may not have known that this would mean they would no longer have more than visitation with their Mother, but I can reasonably infer that this would only increase their level of opposition.
[71] The fact that evidence of the Children’s views was rendered inadmissible in the July 19 hearing demonstrates that those views were not considered. Since the principle that children have the right to be heard is not a mere question of convenience or practice, but one of fundamental importance in British Columbia, it would be contrary to public policy to recognize an extraprovincial order if the tribunal or court did not abide by this principle.
This is a right of the child and not a privilege granted by parents or other adults. It is very unusual for a B.C. court to refuse to recognize a court decision from another jurisdiction. This is a heartbreaking case but encouraging to have the B.C. Supreme Court confirm that it is a fundamentally important principle.
FJIL and its Youth Voices Initiative is fighting for the right of children and youth who experience parental separation or divorce to have their views sought, heard and acted on. We are also collaborating with the Transform the Family Justice Collaborative to protect this important right for kids across the B.C. family justice system including those dealing with the foster care system.
If you would like to join us reach out to kari@bcfjil.ca.