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| Marvin Zuker |
This text is not an official version of the UNCRC. It was developed with young people in Canada to help others know these rights:
Article 2
All children have all these rights, no matter who they are, where they live, what language they speak, what their religion is, what they think, what they look like, what their gender is, if they have a disability, if they are rich or poor, and no matter who their parents or families are or what their parents or families believe or do. No child should be treated unfairly for any reason.
Article 3
When adults make decisions, they should think about how their decisions will affect you. All adults should do what is best for children. Governments should help the people and places responsible for looking after children.
Article 8
You have the right to your own identity — an official record of who you are. This includes your name, nationality and family relations. No one should take this away from you, but if this happens, governments must help to quickly get your identity back.
Article 12
You have the right to give your opinions freely on issues that affect you. Adults should listen and take your views seriously.
Article 13
You have the right to share freely with others what you learn, think and feel, by talking, drawing, writing or in any other way unless it harms other people.
Article 14
You have the right to choose your own thoughts, opinions and religion, but this should not stop other people from enjoying their rights. Parents can guide children so that as they grow up, they learn to use this right in positive ways.
Article 41
If the laws of your country protect your rights better than this Convention, then those laws should be used.
Article 42
You have the right to know your rights. Adults should know these rights and help you to learn about them.
Children, as full rights bearers, are entitled to the benefit of this fundamental aspect of Canada’s legal system. See, for example, Justice for Children and Youth v. J.G., [2020] O.J. No. 3490, which states that access to legal advice is a fundamental right in Canada and there is nothing to limit that right to adults.
In S.K. v. D.G. 2022 ABQB 425 the Alberta Court of Queen’s Bench described children as full rights bearers and access to justice for children as a fundamental right. The court’s comments reinforce the need to have a child lawyer to advance and protect child rights, including the right to have their views taken seriously:
• Access to justice for children is a fundamental right and a prerequisite to the protection of their human rights pursuant to the UN Convention …
• Children are now recognized as “full rights bearers” who merit society’s full protection. This foundational principle goes beyond simply allowing children to express their views in court proceedings; it includes the right to have those views taken seriously: … (Citing General Comment 14, at paras. 40 & 43 and providing cases where the UN Commentary have been used by courts to interpret Canada’s obligations.)
• Children are now recognized as “full rights bearers” who merit society’s full protection. This foundational principle goes beyond simply allowing children to express their views in court proceedings; it includes the right to have those views taken seriously: … (Citing General Comment 14, at paras. 40 & 43 and providing cases where the UN Commentary have been used by courts to interpret Canada’s obligations.)
There is significant judicial support for the conclusion that the right to participate applies to all children and all cases; no exception is made for cases involving violence and/or children resist/refuse contact. See, for example, B.J.G. v. D.L.G. 2010 YKSC 44; N.J.K. v. R.W.F. 2011 BCSC 1666, Medjuck v. Medjuck 2019 ONSC 3254; and in M. v. F. 2022 ONSC 505. Yet, children are too often silenced in these cases.
Children’s rights apply to all children, all cases
The UN Convention applies to all children and all cases. All children have the rights set out in it, including their fundamental right to participate, in all types of cases.
Independent legal representation is especially important in ongoing, contentious court proceedings. These are the cases in which:
(1) Both court processes and court outcomes can have a particularly profound impact on children’s daily lives and their short- and long-term well-being; and
(2) It is even more likely that children’s rights will be overlooked or undermined.
(2) It is even more likely that children’s rights will be overlooked or undermined.
Among the rights at stake are:
- The right to participate in decisions that affect them, which is particularly important in violence cases;
- The right to be free of violence of all kinds, including psychological, emotional and physical violence, which could lead to serious injury or even death;
- The right to life and healthy development;
- The right to health;
- The right to have a relationship with both “parents” but only when it is safe to do so;
- The right to education; and
- The right to privacy.
As any survivor will tell you, the pathway toward healing is not linear.
Everyone deserves to feel safe and supported in their home, but many children face a very different and dangerous reality. As many as one in four girls and one in 13 boys in the United States experience sexual abuse. These numbers are likely much higher given the number of cases that go unreported or resurface decades after they happen.
The right to human dignity includes the right to make decisions about your own body. The right to freedom of religion or conscience includes the right to one’s own moral values and beliefs, and the legislature must both protect and refrain from imposing religions and beliefs on individuals.
This decision will impact on lives, health and well-being.
Litigation has a power for the people. It allows them to speak. If you can get yourself to a courtroom in which everyone has to stay still and listen to them.
Power, not reason, is the currency of this government’s decision-making.
Ontario’s child protection legislation, the Child, Youth and Family Services Act, 2017, focuses on child rights principles, including the child’s right to be heard. The preamble to the Act, acknowledges that “children are individuals with rights to be respected and voices to be heard.” The preamble also states that the aim of the Act “is to be consistent with and build upon the principles expressed in the United Nations Convention on the Rights of the Child.”
Specifically, at s. 3, every child and young person receiving services under the Act has the following rights:
1. To express their own views freely and safely about matters that affect them.
2. To be engaged through an honest and respectful dialogue about how and why decisions affecting them are made and to have their views given due weight, in accordance with their age and maturity.
3. To be consulted on the nature of the services provided or to be provided to them, to participate in decisions about the services provided or to be provided to them and to be advised of the decisions made in respect of those services.
4. To raise concerns or recommend changes with respect to the services provided or to be provided to them without interference or fear of coercion, discrimination or reprisal and to receive a response to their concerns or recommended changes.
5. To be informed, in language suitable to their understanding, of their rights.
2. To be engaged through an honest and respectful dialogue about how and why decisions affecting them are made and to have their views given due weight, in accordance with their age and maturity.
3. To be consulted on the nature of the services provided or to be provided to them, to participate in decisions about the services provided or to be provided to them and to be advised of the decisions made in respect of those services.
4. To raise concerns or recommend changes with respect to the services provided or to be provided to them without interference or fear of coercion, discrimination or reprisal and to receive a response to their concerns or recommended changes.
5. To be informed, in language suitable to their understanding, of their rights.
In the context of judicial decision-making, where courts are directed to make an order in the best interests of a child, the child’s views and wishes shall be considered and given due weight in accordance with the child’s age and maturity, unless they cannot be ascertained. This is now mandatory. Under the previous incarnation of the Act, discretion was left to the decision-maker to consider the child’s views if deemed relevant.
This is the second instalment of a four-part series. Part one: Notwithstanding, Premier Moe: Children’s day or shredding day. Your choice.
Marvin Zuker was a judge of the Ontario Court of Justice, where he presided over the small claims, family and criminal courts from 1978 until his retirement in 2016. He is a professor at Ontario Institute for Studies in Education/University of Toronto, where he has been teaching education law for 42 years. Zuker is the author and co-author of many books and publications, including The Law is Not for Women and The Law is (Not) for Kids.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author's firm, its clients, Law360 Canada, LexisNexis Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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