Legal Representation of Children in Canada

Appendix A: Legislation: Legal Representation, Amicus Curiae, Intervener Status

i. Federal

1. Legal Representation: Federal Court, Divorce, Youth Criminal Justice, Immigration

Federal Matters

Federal Courts Rules, SOR/98-106

Parties

Appointment of representatives

115. (1) The Court may appoint one or more persons to represent

(a) unborn or unascertained persons who may have a present, future, contingent or other interest in a proceeding; or

(b) a person under a legal disability against or by whom a proceeding is brought.

Who may be appointed

(2) The Court may appoint as a representative under subsection (1)

(a) a person who has already been appointed as such a representative under the laws of a province; or

(b) a person eligible to act as a representative in the jurisdiction in which the person to be represented is domiciled.

Order binding on represented person

(3) Unless the Court orders otherwise, a person for whom a representative is appointed under subsection (1) is bound by any order made in the proceeding.

Representation of Parties

General

Individuals

119. Subject to rule 121, an individual may act in person or be represented by a solicitor in a proceeding.

121. Unless the Court in special circumstances orders otherwise, a party who is under a legal disability or who acts or seeks to act in a representative capacity, including in a representative proceeding or a class proceeding, shall be represented by a solicitor.

Custody and Access

Divorce Act, RSC 1985, c 3 (2nd Supp)

CUSTODY ORDERS

Order for custody

16. (1) A court of competent jurisdiction may, on application by either or both spouses or by any other person, make an order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage.

Interim order for custody

(2) Where an application is made under subsection (1), the court may, on application by either or both spouses or by any other person, make an interim order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage pending determination of the application under subsection (1).

Application by other person

(3) A person, other than a spouse, may not make an application under subsection (1) or (2) without leave of the court.

VARIATION, RECISSION OR SUSPENSION OF ORDERS

Order for variation, rescission or suspension

17. (1) A court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively,

(a) a support order or any provision thereof on application by either or both former spouses; or

(b) a custody order or any provision thereof on application by either or both former spouses or by any other person.

Application by other person

(2) A person, other than a former spouse, may not make an application under paragraph (1)(b) without leave of the court.

Youth Criminal Justice

Youth Criminal Justice Act, SC 2002, c 1

PART 3: JUDICIAL MEASURES

Right to counsel

25. (1) A young person has the right to retain and instruct counsel without delay, and to exercise that right personally, at any stage of proceedings against the young person and before and during any consideration of whether, instead of starting or continuing judicial proceedings against the young person under this Act, to use an extrajudicial sanction to deal with the young person.

Arresting officer to advise young person of right to counsel

(2) Every young person who is arrested or detained shall, on being arrested or detained, be advised without delay by the arresting officer or the officer in charge, as the case may be, of the right to retain and instruct counsel, and be given an opportunity to obtain counsel.

Justice, youth justice court or review board to advise young person of right to counsel

(3) When a young person is not represented by counsel

(a) at a hearing at which it will be determined whether to release the young person or detain the young person in custody prior to sentencing,

(b) at a hearing held under section 71 (hearing — adult sentences),

(c) at trial,

(d) at any proceedings held under subsection 98(3) (continuation of custody), 103(1) (review by youth justice court), 104(1) (continuation of custody), 105(1) (conditional supervision) or 109(1) (review of decision),

(e) at a review of a youth sentence held before a youth justice court under this Act, or

(f) at a review of the level of custody under section 87,the justice or youth justice court before which the hearing, trial or review is held, or the review board before which the review is held, shall advise the young person of the right to retain and instruct counsel and shall give the young person a reasonable opportunity to obtain counsel.

Trial, hearing or review before youth justice court or review board

(4) When a young person at trial or at a hearing or review referred to in subsection (3) wishes to obtain counsel but is unable to do so, the youth justice court before which the hearing, trial or review is held or the review board before which the review is held

(a) shall, if there is a legal aid program or an assistance program available in the province where the hearing, trial or review is held, refer the young person to that program for the appointment of counsel; or

(b) if no legal aid program or assistance program is available or the young person is unable to obtain counsel through the program, may, and on the request of the young person shall, direct that the young person be represented by counsel.

Appointment of counsel

(5) When a direction is made under paragraph (4)(b) in respect of a young person, the Attorney General shall appoint counsel, or cause counsel to be appointed, to represent the young person.

Release hearing before justice

(6) When a young person, at a hearing referred to in paragraph (3)(a) that is held before a justice who is not a youth justice court judge, wishes to obtain counsel but is unable to do so, the justice shall

(a) if there is a legal aid program or an assistance program available in the province where the hearing is held,

(i) refer the young person to that program for the appointment of counsel, or

(ii) refer the matter to a youth justice court to be dealt with in accordance with paragraph (4)(a) or (b); or

(b) if no legal aid program or assistance program is available or the young person is unable to obtain counsel through the program, refer the matter without delay to a youth justice court to be dealt with in accordance with paragraph (4)(b).

Young person may be assisted by adult

(7) When a young person is not represented by counsel at trial or at a hearing or review referred to in subsection (3), the justice before whom or the youth justice court or review board before which the proceedings are held may, on the request of the young person, allow the young person to be assisted by an adult whom the justice, court or review board considers to be suitable.

Counsel independent of parents

(8) If it appears to a youth justice court judge or a justice that the interests of a young person and the interests of a parent are in conflict or that it would be in the best interests of the young person to be represented by his or her own counsel, the judge or justice shall ensure that the young person is represented by counsel independent of the parent.

Statement of right to counsel

(9) A statement that a young person has the right to be represented by counsel shall be included in

(a) any appearance notice or summons issued to the young person;

(b) any warrant to arrest the young person;

(c) any promise to appear given by the young person;

(d) any undertaking or recognizance entered into before an officer in charge by the young person;

(e) any notice given to the young person in relation to any proceedings held under subsection 98(3) (continuation of custody), 103(1) (review by youth justice court), 104(1) (continuation of custody), 105(1) (conditional supervision) or 109(1) (review of decision); or

(f) any notice of a review of a youth sentence given to the young person.

Recovery of costs of counsel

(10) Nothing in this Act prevents the lieutenant governor in council of a province or his or her delegate from establishing a program to authorize the recovery of the costs of a young person’s counsel from the young person or the parents of the young person. The costs may be recovered only after the proceedings are completed and the time allowed for the taking of an appeal has expired or, if an appeal is taken, all proceedings in respect of the appeal have been completed.

Exception for persons over the age of twenty

(11) Subsections (4) to (9) do not apply to a person who is alleged to have committed an offence while a young person, if the person has attained the age of twenty years at the time of his or her first appearance before a youth justice court in respect of the offence; however, this does not restrict any rights that a person has under the law applicable to adults.

ImmigrationFootnote 209

Immigration and Refugee Protection Act, SC 2001, c 27

PART 4: IMMIGRATION AND REFUGEE BOARD

PROVISIONS THAT APPLY TO ALL DIVISIONS

Right to counsel

167. (1) A person who is the subject of proceedings before any Division of the Board and the Minister may, at their own expense, be represented by legal or other counsel.

Representation

(2) If a person who is the subject of proceedings is under 18 years of age or unable, in the opinion of the applicable Division, to appreciate the nature of the proceedings, the Division shall designate a person to represent the person.

2. Amicus Curiae

Rules of the Supreme Court of Canada, SOR/2002-156

Appointment of Amicus Curiae

92. The Court or a judge may appoint an amicus curiae in an appeal.

ii. ALBERTA

1. Legal Representation

Family Law

Family Law Act, SA 2003, c F-4.5

Part 4 General Powers of Court

Child as party

95(1) Subject to subsection (2), where a child is a party to an application under this Act, the application may be brought or defended

(a) by a guardian of the child in the name of the child, or

(b) by a litigation representative or any individual appointed by the court to act on behalf of the child.

(2) A child who is or has been a spouse or adult interdependent partner may make, conduct or defend an application under this Act without the intervention of a litigation representative.

(3) The court may at any time appoint an individual to represent the interests of a child in a proceeding under this Act.

(4) Where the court appoints an individual under this section, the court shall allocate the costs relating to the appointment among the parties, including the child, if appropriate.

Child Protection

Child, Youth and Family Enhancement Act, RSA 2000, c C-12

Legal representative

112(1) If an application is made for a supervision order, a private guardianship order or a temporary or permanent guardianship order, or a child is the subject of a supervision order or a temporary or permanent guardianship order or a permanent guardianship agreement, and the child is not represented by a lawyer in a proceeding under Part 1, Division 3, 4 or 5Footnote 210, the Court may direct that the child be represented by a lawyer if

(a) the child, the guardian of the child or a director requests the Court to do so, and

(b) the Court is satisfied that the interests or views of the child would not be otherwise adequately represented.

(2) If the Court directs that a child be represented by a lawyer pursuant to subsection (1),

(a) it shall refer the child to the Child and Youth Advocate.

(b) repealed 2008 c31 s50.

(3) If a referral is made under subsection (2), the Child and Youth Advocate shall appoint or cause to be appointed a lawyer to represent the child.

(4) If a referral is made under subsection (2), the Court may make an order directing that the costs of the lawyer be paid by the child, the guardian of the child or a director or apportioned among all or any of them, having regard to the means of the child and the guardian.

Part 4: General

Appeal to an Appeal Panel

Power of the Appeal Panel

119(1) Any Appeal Panel may hear an appeal made pursuant to section 120.

(1.1) An Appeal Panel may

(a) determine whether representations will be oral or by written submission, and

(b) consider any new evidence that is raised or presented in a hearing.

(2) If an appeal is made from a director’s decision referred to in section 120(2)(a) to (a.4) or (f.3), the Appeal Panel may, subject to this Act and the regulations, confirm the decision or refer the matter back to the director for further consideration.

(2.1) If an appeal is made from a director’s decision referred to in section 120(2)(b) to (f.2), (g) or (5), the Appeal Panel may, subject to this Act and the regulations, confirm, reverse or vary the decision.

(3) Subject to subsection (1.1), the Administrative Procedures Act applies to the proceedings of the Appeal Panel.

(4) An appellant or a child who is the subject of an appeal may be represented at the hearing of the appeal by a lawyer or by any other person.

(5) If no one is present at the hearing of an appeal to represent the interests of a child who is the subject of the appeal, the Appeal Panel may direct that the child be represented at the hearing.

Appeal to the Appeal Panel

120(2) An appeal may be made from a decision of a director that has been reviewed under section 117.1 respecting the following:

(a) the removal from or placement in a residential facility of a child who is the subject of a temporary guardianship order or a permanent guardianship agreement or order;

(a.1) terms and conditions imposed on a renewal of, but not on the original issuance of, a residential facility licence under section 105.3;

(a.2) a refusal to renew a residential facility licence under section 105.3;

(a.3) an order made under section 105.6;

(a.4) the variation, suspension or cancellation of a residential facility licence under section 105.7;

(b) the permitting or refusing to permit any person who has a significant relationship with the child to visit a child who is the subject of a permanent guardianship agreement;

(c), (d) repealed 2003 c16 s105;

(e) the refusal or failure of a director to enter into an agreement under Part 1, Division 2 or 6 or to apply to the Court under Part 1, Division 3 in respect of a child who, in the opinion of that director, is in need of intervention;

(f) repealed 2003 cF-5.3 s12;

(f.1) the refusal to provide financial assistance pursuant to section 56.1 or 81;

(f.2) the refusal to provide support or financial assistance pursuant to section 57.3;

(f.3) a matter prescribed in the regulations as being

(i) subject to an appeal to an Appeal Panel, and

(ii) a matter in respect of which the Appeal Panel may only make a decision referred to in section 119(2);

(g) any other matter prescribed in the regulations as being subject to an appeal to an Appeal Panel.

(2.1) Notwithstanding subsection (2)(a), a child who is receiving treatment in a residential facility may not appeal a decision of a director to place the child in that residential facility.

Child and Youth Advocate Act, SA 2011, c C-11.5

Part 2

Advocate’s Role, Functions and General Powers

Role and functions of Advocate

9(1) The role of the Advocate is to represent the rights, interests and viewpoints of children.

(2) In carrying out the role of the Advocate under subsection (1), the Advocate may

(a) communicate and visit with a child, or with a guardian or other person who represents a child;

(b) on the Advocate’s own initiative, or at the request of a child, assist in appealing or reviewing a decision relating to a designated service;

(c) appoint, or cause to be appointed, lawyers to represent children with respect to any matter or proceeding under the Child, Youth and Family Enhancement Act or the Protection of Sexually Exploited Children Act or any matter or proceeding prescribed by regulation;

Child and Youth Advocate Regulation, Alta Reg 53/2012

Appointment of lawyer to represent child

1(1) If a child is the subject of a permanent guardianship order or a permanent guardianship agreement under the Child, Youth and Family Enhancement Act, the Child and Youth Advocate may appoint or cause to be appointed a lawyer to represent the child where

(a) the child is the subject of a guardianship application under the Family Law Act,

(b) the child is the subject of a guardianship application, a trusteeship application, or both, under the Adult Guardianship and Trusteeship Act, or

(c) the child is the subject of an application, proceeding or other matter under the Citizenship Act (Canada).

(2) If a child is receiving any intervention services under the Child, Youth and Family Enhancement Act or any services under the Protection of Sexually Exploited Children Act, the Child and Youth Advocate may appoint or cause to be appointed a lawyer to represent the child

(a) where the child wishes to apply for an order under the Protection Against Family Violence Act, or

(b) for matters, other than those under the Youth Criminal Justice Act (Canada) or the Youth Justice Act, where the Child and Youth Advocate is of the opinion that the child requires independent representation.

2. Intervenor Status

Alberta Rules of Court, Alta Reg 124/2010

Part 2 The Parties to Litigation

Division 1 Facilitating Legal Actions

Intervenor status

2.10 On application, a Court may grant status to a person to intervene in an action subject to any terms and conditions and with the rights and privileges specified by the Court.

Part 14 Appeals

Division 1 The Right to Appeal

Subdivision 2

Parties to an Appeal

Adding, removing or substituting parties to an appeal

14.57 A party or person may be added, removed or substituted as a party to an appeal in accordance with rule 3.74.

Intervenor status on appeal

14.58(1) In addition to persons having a right to intervene in law, a single appeal judge may grant status to a person to intervene in an appeal, subject to any terms and conditions and with the rights and privileges specified by the judge.

(2) A person granted intervenor status in the court appealed from must apply again to obtain intervenor status on an appeal.

(3) Unless otherwise ordered, an intervenor may not raise or argue issues not raised by the other parties to the appeal.

3. Amicus Curiae: No statutory provisions

iii. BRITISH COLUMBIA

Legal Representative

Family Law

Family Law Act, SBC 2011, c 25

Part 10: Court Processes

Division 2 Procedural Matters

Children's lawyer

203 (1) The court may at any time appoint a lawyer to represent the interests of a child in a proceeding under this Act if the court is satisfied that

(a) the degree of conflict between the parties is so severe that it significantly impairs the capacity of the parties to act in the best interests of the child, and

(b) it is necessary to protect the best interests of the child.

(2) If the court appoints a lawyer under this section, the court may allocate among the parties, or require one party alone to pay, the lawyer's fees and disbursements.

Child Protection

Child, Family and Community Service Act, RSBC 1996, c 46

Part 4 — Children in Care

Rights of children in care

70 (1) Children in care have the following rights:

(a) to be fed, clothed and nurtured according to community standards and to be given the same quality of care as other children in the placement;

(b) to be informed about their plans of care;

(c) to be consulted and to express their views, according to their abilities, about significant decisions affecting them;

(d) to reasonable privacy and to possession of their personal belongings;

(e) to be free from corporal punishment;

(f) to be informed of the standard of behaviour expected by their caregivers or prospective adoptive parents and of the consequences of not meeting the expectations of their caregivers or prospective adoptive parents, as applicable;

(g) to receive medical and dental care when required;

(h) to participate in social and recreational activities if available and appropriate and according to their abilities and interests;

(i) to receive the religious instruction and to participate in the religious activities of their choice;

(j) to receive guidance and encouragement to maintain their cultural heritage;

(k) to be provided with an interpreter if language or disability is a barrier to consulting with them on decisions affecting their custody or care;

(l) to privacy during discussions with members of their families, subject to subsection (2);

(m) to privacy during discussions with a lawyer, the representative or a person employed or retained by the representative under the Representative for Children and Youth Act, the Ombudsperson, a member of the Legislative Assembly or a member of Parliament;

(n) to be informed about and to be assisted in contacting the representative under the Representative for Children and Youth Act, or the Ombudsperson;

(o) to be informed of their rights, and the procedures available for enforcing their rights, under

(i) this Act, or

(ii) the Freedom of Information and Protection of Privacy Act.

(2) A child who is removed under Part 3 is entitled to exercise the right in subsection (1) (l), subject to any court order made after the court has had an opportunity to consider the question of access to the child.

(3) This section, except with respect to the Representative for Children and Youth as set out in subsection (1) (m) and (n), does not apply to a child who is in a place of confinement.

2. Intervenor Status

Court of Appeal Rules, BC Reg 297/2001

Part 6 Applications

Applications for intervenor status

36 (1) Any person interested in an appeal may apply to a justice for leave to intervene on any terms and conditions that the justice may determine.

(2) A party seeking leave under subrule (1) to intervene in an appeal must, within 14 days after the filing of the appellant's factum,

(a) prepare

(i) a notice of motion in Form 6, and

(ii) a memorandum of argument in Form 18,

(b) file 2 copies of that notice of motion and memorandum of argument for use by the court plus such additional copies of those documents as are required for the purposes of paragraph (c), and

(c) serve one filed copy of the notice of motion and memorandum of argument on each of the other parties.

(3) In any order granting leave to intervene, the justice

(a) is to specify the date by which the factum of the intervenor must be filed, and

(b) may make provisions as to additional disbursements incurred by the appellant or any respondent as a result of the intervention.

(4) An intervenor must file a factum in Form 10 on or before the date referred to in subrule (3) (a).

(5) Unless a justice otherwise orders, an intervenor

(a) must not file a factum that exceeds 20 pages,

(b) must include in the factum only those submissions that pertain to the facts and issues included in the factums of the parties, and

(c) is not to present oral argument.

3. Amicus Curiae: No statutory provisions

iv. MANITOBA

1. Legal Representation

Child Protection

The Child and Family Services Act, CCSM c C80

Part III: Child Protection

Legal counsel for parent who is a child

34(1.1) Where a parent of a child who is the subject of a hearing under section 27 is a child and is 12 years of age or older, the parent has the right to retain and instruct legal counsel in respect of the hearing without having a litigation guardian appointed for the parent.

Counsel for child

34(2) In the case of the child who is the subject of the hearing, a judge or master may order that legal counsel be appointed to represent the interests of the child and, if the child is 12 years of age or older, may order that the child have the right to instruct the legal counsel.

Factors affecting need for counsel for child

34(3) In making an order under subsection (2), the judge or master shall consider all relevant matters including,

(a) any difference in the view of the child and the views of the other parties to the hearing;

(b) any difference in the interests of the child and the interests of the other parties to the hearing;

(c) the nature of the hearing, including the seriousness and complexity of the issues and whether the agency is requesting that the child be removed from the home;

(d) the capacity of the child to express his or her views to the court;

(e) the views of the child regarding separate representation, where such views can reasonably be ascertained; and

(f) the presence of parents or guardians at the hearing.

2. Intervenor

Court of Queen's Bench Rules, Man Reg 553/88

Leave to Intervene as an Added Party

Motion for Leave

13.01(1) Where a person who is not a party to a proceeding claims,

(a) an interest in the subject matter of the proceeding;

(b) that the person may be adversely affected by a judgment in the proceeding; or

(c) that there exists between the person and one or more of the parties to the proceeding a question of law or fact in common with a question in issue in the proceeding;

the person may move for leave to intervene as an added party

The Child and Family Services Act, CCSM c C80

Part III: Child Protection

Application to intervene

31(1) Prior to the commencement of a hearing under subsection 27(1) and upon giving two clear days notice to the persons entitled to notice under subsection 30(1) any person may apply to court to intervene in the proceedings.

Order

31(2) Upon being satisfied that the person applying under subsection (1)

(a) has or has had a significant relationship with the child; and

(b) can make a significant contribution to the hearing which will be in the child's best interests;

a judge or master may order that the person intervene in the proceedings upon the terms and conditions and with the rights and privileges the judge or master determines.

3. Amicus Curiae

Court of Queen's Bench Rules, Man Reg 553/88

Leave to Intervene as a Friend of the Court

13.02 Any person may, with leave of the court or at the invitation of the court and without becoming a party to the proceeding, intervene as a friend of the court for the purpose of rendering assistance to the court by way of argument.

Leave to Intervene as an Added Party Motion for Leave

13.01(1) Where a person who is not a party to a proceeding claims,

(a) an interest in the subject matter of the proceeding;

(b) that the person may be adversely affected by a judgment in the proceeding; or

(c) that there exists between the person and one or more of the parties to the proceeding a question of law or fact in common with a question in issue in the proceeding;

the person may move for leave to intervene as an added party

v. NEW BRUNSWICK

1. Legal Representation

Child Protection

Family Services Act, SNB 1980, c F-2.2

6(4) In any matter or proceeding under this Act affecting a child, whether before a court or any person having authority to make a decision that affects a child, the child has the right to be heard either on his own behalf or through his parent or another responsible spokesman.

6(5) In any proceeding under this Act the court may waive any requirement that the child appear before the court where it is of the opinion that it would be in the best interests of the child to do so and the court is satisfied that the interests and concerns of the child with respect to the matter before the court will not be thereby prejudiced.

7 In any proceeding with respect to the custody of a child, whether under this or any other Act, the court shall,

(a) if the Minister is not a party to the proceeding, advise the Minister of the proceeding, in which case the Minister may intervene in the proceeding and may take whatever steps he considers necessary to ensure that the interests and concerns of the child are properly represented separate from those of any other person, including the appointment of counsel or a responsible spokesman to assist in the representation of the interests and concerns of the child, and

(b) where the Minister is a party to the proceeding and the court is of the opinion that the interests and concerns of the child should be represented by counsel or by a responsible spokesman, advise the Attorney-General that in his opinion counsel or a responsible spokesman should be made available to assist in the representation of the child’s interests and concerns.

7.1(1) The court shall consider the following in order to determine whether counsel should be made available under paragraph 7(b):

(a) whether the child is 12 years of age or older;

(b) whether the child’s wishes, where they can be expressed and where the child is capable of understanding the nature of any choices that may be available to him or her, have been given consideration in determining his or her interests and concerns;

(c) whether the Minister has been able to identify the child’s interests and concerns;

(d) whether the interests and concerns of the child and those of the Minister differ;

(e) whether counsel is better able to identify the child’s interests and concerns; and

(f) any other factors the court considers relevant.

7.1(2) Upon advising the Attorney General that counsel should be made available under paragraph 7(b), the court shall provide the reasons justifying the decision.

Youth Criminal Offences

Provincial Offences Procedure for Young Persons Act, SNB 1987, c P-22.2

RIGHT TO RETAIN AND INSTRUCT COUNSEL

12(1) A young person has the right to retain and instruct counsel without delay, and to exercise that right personally, at any stage of proceedings against the young person and prior to and during any consideration of whether, instead of commencing or continuing judicial proceedings against the young person, to use alternative measures to deal with the young person.

12(1.1) Notwithstanding subsection (1), a ticket may be served on a young person before a young person has been advised of or given the opportunity to exercise the rights given under subsection (1).

12(2) Every young person who is arrested or detained shall, forthwith on arrest or detention, be advised by the arresting officer or the officer in charge, as the case may be, of the young person’s right to retain and instruct counsel and shall be given a reasonable opportunity to do so.

12(3) If a young person is not represented by counsel

(a) at a hearing at which it will be determined whether to release the young person or detain the young person in custody prior to disposition of the young person’s case,

(b) at the young person’s trial,

(c) on sentencing of the young person, or

(d) on an appeal the youth court judge before whom the hearing, trial or sentencing is held or the judge before whom the appeal is heard shall advise the young person of the young person’s right to retain and instruct counsel and shall give the young person a reasonable opportunity to do so.

12(4) If a young person is unable to retain and instruct counsel either through a legal aid program or otherwise and the youth court judge or the judge on appeal before whom the young person appears is of the opinion that the young person should be represented by counsel or by a responsible spokesperson, the judge may advise the Attorney General that, in the judge’s opinion, counsel or a responsible spokesperson should be made available to assist in representing the young person.

12(5) If a young person is not represented by counsel at a hearing, trial, sentencing or appeal referred to in subsection (3), the youth court judge or the judge on appeal before whom the proceedings are held may, on the request of the young person, allow the young person to be assisted by an adult whom the judge considers to be suitable.

12(6) In any case where it appears to a youth court judge or a judge on appeal that the interests of a young person and the young person’s parents are in conflict or that it would be in the best interests of the young person to be represented by separate counsel, the judge shall advise the young person that the young person is entitled to retain and instruct counsel or to be assisted by a suitable adult independent of the young person’s parents.

12(7) Subject to subsection 6(7), notwithstanding that a young person is represented by counsel or agent, no proceedings in relation to a young person as a defendant shall be conducted in the absence of the young person.

2. Intervenor: No statutory provisions

3. Amicus Curiae

Rules of Court, NB Reg 82-73

15.03 Leave to Intervene as Friend of the Court 15.03 Permission

Any person may, with leave of the court or at the invitation of the court, and without becoming a party to the proceeding, intervene as a friend of the court for the purpose of rendering assistance to the court by way of argument.

vi. NEWFOUNDLAND AND LABRADOR

1. Legal Representation

Family and Law

Note that the Children's Law Act, RSNL 1990, c C-13 recognizes that a child may have counsel (addresses things such as notice to “counsel representing the child” but there are no provisions for appointment of counsel for the child)

Child Protection

Children and Youth Care and Protection Act, SNL 2010, c C-12.2

PART III: PROTECTIVE INTERVENTION

Determining the need for protective intervention

12. (1) Where a manager or social worker receives information in the form of

(a) a request for protective intervention services;

(b) a report under section 11 ; or

(c) other evidence that a child may be in need of protective intervention, the manager or social worker shall investigate whether the child is in need of protective intervention unless, upon assessment, the manager or social worker is satisfied that the information provided was without merit or without reasonable grounds.

(b) after an investigation referred to in subsection (1), a manager or social worker has determined that the child is not in need of protective intervention, the manager or social worker may, where appropriate, refer the child or the child's parent to health care, social, legal or other services which may assist the child or the child's parent and may, in exceptional circumstances, enter into a written agreement outlining the plan for the child and the child's parent with respect to the required services.

(4) An agreement under this section shall set out the responsibilities of each party to the agreement.

PART V: GENERAL COURT MATTERS

53. Where a child who is the subject of a proceeding under this Act requests that his or her views be known at the proceeding, a judge shall

(a) meet with the child with or without the other parties and their legal counsel;

(b) permit the child to testify at the proceeding;

(c) consider written material submitted by the child; or

(d) allow the child to express his or her views in some other way.

Appeals

Judicature Act, RSNL 1990, c J-4

Part I: The Court of Appeal

Appointment of counsel

18. Where a person or class of persons affected by a reference are not represented by counsel, the court may appoint counsel to represent the person or class and the reasonable expenses occasioned shall be paid by the Minister of Finance out of the Consolidated Revenue Fund.

2. Intervenor

Rules of the Supreme Court, 1986, SNL 1986, c 42, Sch D

RULE 7 CAUSES OF ACTION AND PARTIES

Intervenor becoming a party

7.05. (1) Any person may, with leave of the court, intervene in a proceeding and become a party thereto if

  • that person claims an interest in the subject matter of the proceeding, including any property seized or attached in the proceeding, whether as an incident to the relie
  • f claimed, enforcement of the order therein, or otherwise;

(b) that person's claim or defence and the proceeding have a question of law or fact in common; or

(c) that person has a right to intervene under a statute or rule.

(2) The application for leave to intervene shall be supported by an affidavit containing the grounds thereof and shall have attached thereto, when practical, a pleading setting forth the claim or defence for which intervention is sought.

(3) On the application, the Court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the parties to the proceeding and it may grant such order as it thinks just.

3. Amicus Curiae

Rules of the Supreme Court, 1986, SNL 1986, c 42, Sch D

Intervenor as amicus curiae

7.06. Any person may, with the leave of the Court and without becoming a party to a proceeding, intervene in the proceeding as a friend of the Court for the purpose of assisting it.

Provincial Court Family Rules, 2007, N.L.R. 28/07

RULE 1 CITATION, APPLICATION AND INTERPRETATION

Citation

1.01 These rules may be cited as the Provincial Court Family Rules, 2007.

Application

1.02 (1) These rules govern all proceedings in the court under the

(a) Adoption Act, 2013;

(b) Change of Name Act, 2009;

(c) Child, Youth and Family Services Act;

(d) Children's Law Act;

(e) Family Law Act;

(f) Interjurisdictional Support Orders Act;

(g) Neglected Adults Welfare Act;

(h) Solemnization of Marriage Act; and

(i) Support Orders Enforcement Act.

Friend of the court

5.10 A person may, with leave of the court and without becoming a party to a proceeding, intervene in the proceeding as a friend of the court for the purpose of assisting the court.

vii. NORTHWEST TERRITORIES

1. Legal Representation

Family Law

Children's Law Act, SNWT 1997, c 14

PART V: General

Procedure

83(1) Child entitled to be heard

In considering an application under Part IIIFootnote 211, a court where possible shall take into consideration the views and preferences of the child to the extent that the child is able to express them.

83(2) Interview by court

The court may interview the child to determine the views and preferences of the child.

83(3) Conduct of interview

Where the court interviews the child, the interview shall be recorded.

83(4) Counsel

The child is entitled to be advised by and to have his or her counsel, if any, present during the interview.

Child Protection

Child and Family Services Act, SNWT 1997, c 13

* NOTE s. 3.1(1)-(2) are set to come into force on April 1, 2016*

Principles

3.1(1) Notice of right to legal counsel

The following persons are entitled to be informed of the right to be represented by legal counsel throughout the child protection process:

(a) a parent or person having lawful custody or actual care of a child;

(b) a child who is able to express his or her views and preferences respecting decisions affecting him or her.

3.1(2) Facilitating access to legal counsel

After advising a person of the right to be represented by legal counsel, the Director or a Child Protection Worker shall endeavor, to the extent that it is practicable, to facilitate that person's access to legal counsel and, where appropriate, the services of an interpreter.

PART IV: GENERAL

Procedure

86(1) Counsel for child

The court shall ensure that a child who is the subject of a hearing before the court is represented by counsel independent of his or her parents where it appears to the court that

(a) the interests of the child and the child's parents are in conflict; or

(b) it would be in the best interests of the child to be represented by his or her own counsel.

Youth Criminal Justice

Youth Justice Act, SNWT 2003, c 31

14 (5) If a young person at a hearing or proceeding referred to in subsection (4) wishes to obtain counsel but is unable to do so, the youth justice court before which or the justice before whom the hearing or proceeding is held

(a) shall refer the young person to the legal services program established under the Legal Services Act; or

(b) if the young person is unable to obtain counsel through the program referred to in paragraph (a)

(i) may direct that the young person be represented by counsel, and

(ii) except in the case of a hearing or proceeding in respect of an offence for which a ticket has been issued under the Summary Conviction Procedures Act, shall, on the request of the young person, direct that the young person be represented by counsel.

(6) If a direction is made under paragraph (5)(b) in respect of a young person, the Minister shall appoint counsel, or cause counsel to be appointed, to represent the young person.

(7) If a young person is not represented by counsel at a hearing or proceeding against the young person, the justice before whom or the youth justice court before which the hearing or proceeding is held may, on the request of the young person, allow the young person to be assisted by a parent or another adult whom the justice or court considers to be suitable.

(8) If it appears to a youth justice court judge or a justice that the interests of a young person and the interests of a parent are in conflict or that it would be in the best interests of the young person to be represented by his or her own counsel, the judge or justice shall ensure that the young person is represented by counsel independent of the parent

2. Intervenor

Rules of Practice and Procedure, NWT Reg 047-96

Part III: Procedure

Intervention

14. (1) Any interested person or organization may give notice of its desire to intervene in a proceeding by filing with the secretary and serving on the applicant, on or before the date specified in the notice, a written request to intervene.

3. Amicus Curiae

Rules of the Supreme Court of the Northwest Territories, N.W.T. Reg. 010-96

PART 7 PARTIES AND JOINDER OF CAUSES OF ACTION

Amicus curiae

92. With leave of the Court, a person may intervene in a proceeding, without becoming a party to the proceeding, as amicus curiae for the purpose of rendering assistance to the Court by way of argument or by presentation of evidence, on such terms as to costs or otherwise as the Court may impose.

viii. NOVA SCOTIA

1. Legal Representation

Family Law

Family Court Rules, NS Reg 20/93

Guardian ad litem

5.05 (1) Subject to subrule (2) a person under disability shall commence or defend a proceeding by a guardian ad litem unless the court otherwise orders.

(2) A person under the age of majority is not required to commence or defend a proceeding by a guardian ad litem unless the court so orders.

(3) Unless a Rule otherwise provides, anything in a proceeding that is required or authorized by the Rules to be done by a party shall or may, if the party is a person under disability, be done on the person’s behalf by the guardian ad litem.

Child Protection

Children and Family Services Act, SNS 1990, c 5

Child as party and appointment of guardian

37 (1) A child who is sixteen years of age or more is a party to a proceeding unless the court otherwise orders and, if a party, is, upon the request of the child, entitled to counsel for the purposes of a proceeding.

(2) A child who is twelve years of age or more shall receive notice of a proceeding and, upon request by the child at any stage of the proceeding, the court may order that the child be made a party to the proceeding and be represented by counsel, where the court determines that such status and representation is desirable to protect the child's interests.

(3) Upon the application of a party or on its own motion, the court may, at any stage of a proceeding, order that a guardian ad litem be appointed for a child who is the subject of the proceeding and, where the child is not a party to the proceeding, that the child be made a party to the proceeding, if the court determines that such a guardian is desirable to protect the child's interests and, where the child is twelve years of age or more, that the child is not capable of instructing counsel.

(4) Where a child is represented by counsel or a guardian ad litem pursuant to this Section, the Minister shall in accordance with the regulations, pay the reasonable fees and disbursements of the counsel or guardian as the case may be, including the reasonable fees and disbursements of counsel for the guardian.

Family Court Rules, NS Reg 20/93

Rule 21 - Proceedings under the Children and Family Services Act

Interim Hearings

21.08 (7) At the interim hearing, as soon as is practicable in the circumstances, the court shall determine whether the child is a party and entitled to representation in accordance with Section 37 and shall make such directions respecting the child’s party status, representation, presence at hearings, participation and service of documents upon the child as are just and necessary in the circumstances, having regard to the child’s best interests.

2. Intervenor

Nova Scotia Civil Procedure Rules, Nova Scotia Civil Procedure Rules, Royal Gaz Nov 19, 2008

Part 8: Counsel, Parties, and Claims

Rule 35: Parties

The following persons may do the following things, in accordance with this Rule: 35.01 (e) a person may make a motion to be added as a party, including as an intervenor.

Person intervening

35.10 A person who is not a party to a proceeding and wishes to be joined may move for an order joining the person as an intervenor.

Part 18: Proceedings in the Court of Appeal

Intervention

A person may intervene in an appeal with leave of a judge of the Court of Appeal.

90.19 (1)

3. Amicus Curiae

Family Court Rules, NS Reg 20/93

As amicus curiae

5.10 Any person may, with the leave of the court and without becoming a party to a proceeding, intervene in the proceeding as a friend of the court for the purpose of assisting the court.

ix. NUNAVUT

1. Legal Representation

Family Law

Children's Law Act, SNWT (Nu) 1997, c 14

PART V: General

Procedure

83(1) Child entitled to be heard

In considering an application under Part IIIFootnote 212, a court where possible shall take into consideration the views and preferences of the child to the extent that the child is able to express them.

83(2) Interview by court

The court may interview the child to determine the views and preferences of the child.

83(3) Conduct of interview

Where the court interviews the child, the interview shall be recorded.

83(4) Counsel

The child is entitled to be advised by and to have his or her counsel, if any, present during the interview.

Child Protection

Child and Family Services Act, SNWT (Nu) 1997, c 13

Procedure

86(1) Counsel for child

The court shall ensure that a child who is the subject of a hearing before the court is represented by counsel independent of his or her parents where it appears to the court that

(a) the interests of the child and the child's parents are in conflict; or

(b) it would be in the best interests of the child to be represented by his or her own counsel.

Youth Criminal Justice

Young Offenders Act, RSNWT (Nu) 1988

Trial or review before Youth Court or review board

11(2) Where a young person at his or her trial or review referred to in subsection (1) wishes to obtain counsel but is unable to do so, the Youth Court before which the trial or review is held or the review board before which the review is held

(a) shall refer the young person to the legal services program established under the Legal Services Act; or

(b) where the young person is unable to obtain counsel through the program referred to in paragraph (a), may, and on the request of the young person shall, direct that the young person be represented by counsel.

Appointment of counsel

(3) Where a direction is made under paragraph (2)(b) in respect of a young person, the Minister shall appoint counsel, or cause counsel to be appointed, to represent the young person.

Counsel independent of parents

12. In any case where it appears to a youth court judge or a justice that the interests of a young person and his or her parents are in conflict or that it would be in the best interest of the young person to be represented by his or her own counsel, the judge or justice shall ensure that the young person is represented by counsel independent of his or her parents.

2. Intervenor: N/A (statute repealed)

3. Amicus Curiae

Rules of the Supreme Court of the Northwest Territories, NWT Reg (Nu)

PART 7 PARTIES AND JOINDER OF CAUSES OF ACTION

Amicus curiae

92. With leave of the Court, a person may intervene in a proceeding, without becoming a party to the proceeding, as amicus curiae for the purpose of rendering assistance to the Court by way of argument or by presentation of evidence, on such terms as to costs or otherwise as the Court may impose.

x. ONTARIO

1. Legal Representation

Generally

Courts of Justice Act, R.S.O. 1990, Chap. C. 43

PART VI – JUDGES AND OFFICERS

Children’s Lawyer

Duties

89(3) Where required to do so by an Act or the rules of court, the Children’s Lawyer shall act as litigation guardian of a minor or other person who is a party to a proceeding.

Same

(3.1) At the request of a court, the Children’s Lawyer may act as the legal representative of a minor or other person who is not a party to a proceeding.

Rules of Civil Procedure, RRO 1990, Reg 194

RULE 7 PARTIES UNDER DISABILITY

REPRESENTATION BY LITIGATION GUARDIAN

Party under Disability

7.01 (1) Unless the court orders or a statute provides otherwise, a proceeding shall be commenced, continued or defended on behalf of a party under disability by a litigation guardian. O. Reg. 69/95, s. 2.

REPRESENTATION OF PERSONS UNDER DISABILITY

LITIGATION GUARDIAN FOR DEFENDANT OR RESPONDENT

Legal representative for minor who is not a party

7.04(2) Where, in the opinion of the court, the interests of a minor who is not a party require separate representation in a proceeding, the court may request and may by order authorize the Children’s Lawyer, or some other proper person who is willing and able to act, to act as the person’s legal representative.

RULE 15 REPRESENTATION BY LAWYER

WHERE LAWYER IS REQUIRED

15.01 (1) A party to a proceeding who is under disability or acts in a representative capacity shall be represented by a lawyer.

Family Law

Family Law Rules, O Reg 114/99

RULE 2: INTERPRETATION

2(1) In these rules, “special party” means a party who is a child or who is or appears to be mentally incapable for the purposes of the Substitute Decisions Act, 1992 in respect of an issue in the case and who, as a result, requires legal representation, but does not include a child in a custody, access, child protection, adoption or child support case

RULE 4: REPRESENTATION

PRIVATE REPRESENTATION OF SPECIAL PARTY

(2) The court may authorize a person to represent a special party if the person is,

(a) appropriate for the task; and

(b) willing to act as representative. O. Reg. 114/99, r. 4 (2).

PUBLIC LAW OFFICER TO REPRESENT SPECIAL PARTY (3) If there is no appropriate person willing to act as a special party’s representative, the court may authorize the Children’s Lawyer or the Public Guardian and Trustee to act as representative, but only with that official’s consent.

LAWYER FOR CHILD

4(7) In a case that involves a child who is not a party, the court may authorize a lawyer to represent the child, and then the child has the rights of a party, unless the court orders otherwise.

CHILD’S RIGHTS SUBJECT TO STATUTE

(8) Subrule (7) is subject to section 38 (legal representation of child, protection hearing) and subsection 114 (6) (legal representation of child, secure treatment hearing) of the Child and Family Services Act. O. Reg. 114/99, r. 4 (8).

RULE 21: REPORT OF CHILDREN’S LAWYER

REPORT OF CHILDREN’S LAWYER

21. When the Children’s Lawyer investigates and reports on custody of or access to a child under section 112 of the Courts of Justice Act,

(a) the Children’s Lawyer shall first serve notice on the parties and file it;

(b) the parties shall, from the time they are served with the notice, serve the Children’s Lawyer with every document in the case that involves the child’s custody, access, support, health or education, as if the Children’s Lawyer were a party in the case;

(c) the Children’s Lawyer has the same rights as a party to document disclosure (rule 19) and questioning witnesses (rule 20) about any matter involving the child’s custody, access, support, health or education;

(d) within 90 days after serving the notice under clause (a), the Children’s Lawyer shall serve a report on the parties and file it;

(e) within 30 days after being served with the report, a party may serve and file a statement disputing anything in it; and

(f) the trial shall not be held and the court shall not make a final order in the case until the 30 days referred to in clause (e) expire or the parties file a statement giving up their right to that time.

Courts of Justice Act, R.S.O. 1990, Chap. C. 43

Part VII: Court Proceedings

Investigation and report of Children’s Lawyer

112. (1) In a proceeding under the Divorce Act (Canada) or the Children’s Law Reform Act in which a question concerning custody of or access to a child is before the court, the Children’s Lawyer may cause an investigation to be made and may report and make recommendations to the court on all matters concerning custody of or access to the child and the child’s support and education.

Idem

(2) The Children’s Lawyer may act under subsection (1) on his or her own initiative, at the request of a court or at the request of any person.

Report as evidence

(3) An affidavit of the person making the investigation, verifying the report as to facts that are within the person’s knowledge and setting out the source of the person’s information and belief as to other facts, with the report attached as an exhibit thereto, shall be served on the parties and filed and on being filed shall form part of the evidence at the hearing of the proceeding.

Attendance on report

(4) Where a party to the proceeding disputes the facts set out in the report, the Children’s Lawyer shall if directed by the court, and may when not so directed, attend the hearing on behalf of the child and cause the person who made the investigation to attend as a witness.

Adoption

Family Law Rules, O Reg 114/99

RULE 34: ADOPTION

INDEPENDENT LEGAL ADVICE, CHILD’S CONSENT

34(11) The consent of a child to be adopted (Form 34) shall be witnessed by a representative of the Children’s Lawyer, who shall complete the affidavit of execution and independent legal advice contained in the form.

INDEPENDENT LEGAL ADVICE, CONSENT OF PARENT UNDER 18

(11.1) The consent of a person under the age of 18 years who is a parent of the child to be adopted (Form 34F) shall be witnessed by a representative of the Children’s Lawyer, who shall complete an affidavit of execution and independent legal advice (Form 34J).

COPY OF CONSENT FOR PERSON SIGNING

(13) A person who signs a consent to an adoption shall be given a copy of the consent and of the affidavit of execution and independent legal advice.

WITHDRAWAL OF CONSENT BY PARENT

(13.1) A parent who has given consent to an adoption under subsection 137 (2) of the Act may withdraw the consent under subsection 137 (8) of the Act in accordance with the following:

1. If the child is placed for adoption by a children’s aid society, the parent who wishes to withdraw the consent shall ensure that the children’s aid society receives the written withdrawal within 21 days after the consent was given.

2. If the child is placed for adoption by a licensee, the parent who wishes to withdraw the consent shall ensure that the licensee receives the written withdrawal within 21 days after the consent was given.

3. If a relative of the child or a spouse of a parent proposes to apply to adopt the child, the parent who wishes to withdraw the consent shall ensure that the relative or spouse receives the written withdrawal within 21 days after the consent was given.

WITHDRAWAL OF CONSENT BY CHILD AGED SEVEN OR OLDER

(13.2) A child who has given consent to an adoption under subsection 137 (6) of the Act may withdraw the consent under subsection 137 (8) of the Act in accordance with the following:

1. The withdrawal shall be signed within 21 days after the consent was given, and witnessed by the person who witnessed the consent under subrule (11) or by another representative of the Children’s Lawyer.

2. The person who witnesses the withdrawal shall give the original withdrawal document to the child and promptly serve a copy on the children’s aid society, licensee, relative or spouse, as the case may be. O. Reg. 337/02, s. 3 (9); O. Reg. 140/15, s. 5.

Child and Family Services Act, RSO 1990, c C.11

PART VII: ADOPTION

Consent to Adoption

Consent of parent, etc.

137 (2) An order for the adoption of a child who is less than sixteen years of age, or is sixteen years of age or more but has not withdrawn from parental control, shall not be made without,

(a) the written consent of every parent; or

Consents by minors: role of Children’s Lawyer

137(11) Where a person who gives a consent under clause (2) (a) is less than eighteen years of age, the consent is not valid unless the Children’s Lawyer is satisfied that the consent is fully informed and reflects the person’s true wishes.

Affidavits of execution

(12) An affidavit of execution in the prescribed form shall be attached to a consent and a withdrawal of a consent under this section.

Form of foreign consents

(13) A consent required under this section that is given outside Ontario and whose form does not comply with the requirements of subsection (12) and the regulations is not invalid for that reason alone, if its form complies with the laws of the jurisdiction where it is given.

Dispensing with consent

138. The court may dispense with a consent required under section 137 for the adoption of a child, except the consent of the child or of a Director, where the court is satisfied that,

(a) it is in the child’s best interests to do so; and

(b) the person whose consent is required has received notice of the proposed adoption and of the application to dispense with consent, or a reasonable effort to give the notice has been made. R.S.O. 1990, c. C.11, s. 138.

Late withdrawal of consent

139. (1) The court may permit a person who gave a consent to the adoption of a child under section 137 to withdraw the consent after the twenty-one day period referred to in subsection 137 (8) where the court is satisfied that it is in the child’s best interests to do so, and where that person had custody of the child immediately before giving the consent, the child shall be returned to him or her as soon as the consent is withdrawn.

Exception: child placed for adoption

(2) Subsection (1) does not apply where the child has been placed with a person for adoption and remains in that person’s care. R.S.O. 1990, c. C.11, s. 139.

Child may participate

153.4 A child who receives notice of a proceeding under section 145.1, 145.1.2, 145.2, 153.1 or 153.2 is entitled to participate in the proceeding as if he or she were a party.

Legal representation of child

153.5 (1) A child may have legal representation at any stage in a proceeding under section 145.1, 145.1.2, 145.2 or 153.1 and subsection 38 (2) applies with necessary modifications to such a proceeding.Footnote 213

Children’s Lawyer

(2) Where the court determines that legal representation is desirable, the court may, with the consent of the Children’s Lawyer, authorize the Children’s Lawyer to represent the child. 2006, c. 5, s. 39.

Child Abuse

Child and Family Services Act, RSO 1990, c C.11

PART III: CHILD PROTECTION

Offences, Restraining Orders, Recovery on Child’s Behalf

Abuse, failure to provide for reasonable care, etc.

Definition

79. (1) In this section, “abuse” means a state or condition of being physically harmed, sexually molested or sexually exploited.

Recovery because of abuse

81. (1) In this section … “to suffer abuse”, when used in reference to a child, means to be in need of protection within the meaning of clause 37 (2) (a), (c), (e), (f), (f.1) or (h). R.S.O. 1990, c. C.11, s. 81 (1); 1999, c. 2, s. 29.

Recovery on child’s behalf

(2) When the Children’s Lawyer is of the opinion that a child has a cause of action or other claim because the child has suffered abuse, the Children’s Lawyer may, if he or she considers it to be in the child’s best interests, institute and conduct proceedings on the child’s behalf for the recovery of damages or other compensation.

Idem: society

(3) Where a child is in a society’s care and custody, subsection (2) also applies to the society with necessary modifications. R.S.O. 1990, c. C.11, s. 81 (3).

Child Protection

Family Law Rules, O Reg 114/99

RULE 4: REPRESENTATION

LAWYER FOR CHILD

4(7) In a case that involves a child who is not a party, the court may authorize a lawyer to represent the child, and then the child has the rights of a party, unless the court orders otherwise.

CHILD’S RIGHTS SUBJECT TO STATUTE

(8) Subrule (7) is subject to section 38 (legal representation of child, protection hearing) and subsection 114 (6) (legal representation of child, secure treatment hearing) of the Child and Family Services Act.

Child and Family Services Act, RSO 1990, c C.11

PART I: FLEXIBLE SERVICES

CHILDREN’S AID SOCIEITIES

Children’s Lawyer

20.2(3) If a society or a person, including a child, who is receiving child welfare services proposes that a prescribed method of alternative dispute resolution be undertaken to assist in resolving an issue relating to a child or a plan for the child’s care, the Children’s Lawyer may provide legal representation to the child if in the opinion of the Children’s Lawyer such legal representation is appropriate. 2006, c. 5, s. 5.

PART III: CHILD PROTECTION

Legal Representation

Legal representation of child

38. (1)A child may have legal representation at any stage in a proceeding under this Part.

Court to consider issue

(2)Where a child does not have legal representation in a proceeding under this Part, the court,

(a) shall, as soon as practicable after the commencement of the proceeding; and

(b) may, at any later stage in the proceeding, determine whether legal representation is desirable to protect the child’s interests.

Direction for legal representation

(3)Where the court determines that legal representation is desirable to protect a child’s interests, the court shall direct that legal representation be provided for the child.

Criteria

(4)Where,

(a) the court is of the opinion that there is a difference of views between the child and a parent or a society, and the society proposes that the child be removed from a person’s care or be made a society or Crown ward under paragraph 2 or 3 of subsection 57 (1);

(b) the child is in the society’s care and,

(i) no parent appears before the court, or

(ii) it is alleged that the child is in need of protection within the meaning of clause 37 (2) (a), (c), (f), (f.1) or (h); or

(c) the child is not permitted to be present at the hearing, legal representation shall be deemed to be desirable to protect the child’s interests, unless the court is satisfied, taking into account the child’s views and wishes if they can be reasonably ascertained, that the child’s interests are otherwise adequately protected.

Where parent a minor

(5)Where a child’s parent is less than eighteen years of age, the Children’s Lawyer shall represent the parent in a proceeding under this Part unless the court orders otherwise.

Consent order: special requirements

55. Where a child is brought before the court on consent as described in clause 37 (2) (l), the court shall, before making an order under section 57 or

57.1 that would remove the child from the parent’s care and custody,

(a) ask whether,

(i) the society has offered the parent and child services that would enable the child to remain with the parent, and

(ii) the parent and, where the child is twelve years of age or older, the child has consulted independent legal counsel in connection with the consent; and

(b) be satisfied that,

(i) the parent and, where the child is twelve years of age or older, the child understands the nature and consequences of the consent,

(ii) every consent is voluntary, and

(iii) the parent and, where the child is twelve years of age or older, the child consents to the order being sought.

Mental Health and Secure Treatment

Family Law Rules, O Reg 114/99

RULE 4: REPRESENTATION

LAWYER FOR CHILD

(7) In a case that involves a child who is not a party, the court may authorize a lawyer to represent the child, and then the child has the rights of a party, unless the court orders otherwise. O. Reg. 114/99, r. 4 (7).

CHILD’S RIGHTS SUBJECT TO STATUTE

(8) Subrule (7) is subject to section 38 (legal representation of child, protection hearing) and subsection 114 (6) (legal representation of child, secure treatment hearing) of the Child and Family Services Act. O. Reg. 114/99, r. 4 (8).

Child and Family Services Act, RSO 1990, c C.11

COMMITMENT TO SECURE TREATMENT

Application for order for child’s commitment

114. (1)Any one of the following persons may, with the administrator’s written consent, apply to the court for an order for the child’s commitment to a secure treatment program:

1. Where the child is less than sixteen years of age,

i. the child’s parent,

ii. a person other than an administrator who is caring for the child, if the child’s parent consents to the application, or

iii. a society that has custody of the child under an order made under Part III (Child Protection).

2. Where the child is sixteen years of age or more,

i. the child,

ii. the child’s parent, if the child consents to the application,

iii. a society that has custody of the child under an order made under Part III (Child Protection), if the child consents to the application, or

iv. a physician.

Time for hearing

(2) Where an application is made under subsection (1), the court shall deal with the matter within ten days of the making of an order under subsection (6) (legal representation) or, where no such order is made, within ten days of the making of the application.

Adjournments

(3) The court may adjourn the hearing of an application but shall not adjourn it for more than thirty days unless the applicant and the child consent to the longer adjournment.

Interim order

(4) Where a hearing is adjourned, the court may make a temporary order for the child’s commitment to a secure treatment program if the court is satisfied that the child meets the criteria for commitment set out in clauses 117 (1) (a) to (f) and, where the child is less than twelve years old, the Minister consents to the child’s admission.

Evidence on adjournments

(5) For the purpose of subsection (4), the court may admit and act on evidence that the court considers credible and trustworthy in the circumstances.

Legal representation of child

(6) Where an application is made under subsection (1) in respect of a child who does not have legal representation, the court shall, as soon as practicable and in any event before the hearing of the application, direct that legal representation be provided for the child.

PART VI: EXTRAORDINARY MEASURES

EMERGENCY ADMISSION

124. Criteria for admission

124(2) The administrator may admit a child to the secure treatment program on an application under subsection (1) for a period not to exceed thirty days where the administrator believes on reasonable grounds that,

(a) the child has a mental disorder;

(b) the child has, as a result of the mental disorder, caused, attempted to cause or by words or conduct made a substantial threat to cause serious bodily harm to himself, herself or another person;

(c) the secure treatment program would be effective to prevent the child from causing or attempting to cause serious bodily harm to himself, herself or another person;

(d) treatment appropriate for the child’s mental disorder is available at the place of secure treatment to which the application relates; and

(e) no less restrictive method of providing treatment appropriate for the child’s mental disorder is appropriate in the circumstances.

Admission on consent

(3) The administrator may admit the child under subsection (2) although the criterion set out in clause (2) (b) is not met, where,

(a) the other criteria set out in subsection (2) are met;

(b) the child, after obtaining legal advice, consents to his or her admission; and

(c) if the child is less than sixteen years of age, the child’s parent or, where the child is in a society’s lawful custody, the society consents to the child’s admission.

Where child under twelve

(4) Where the child is less than twelve years old, the administrator shall not admit the child under subsection (2) unless the Minister consents to the child’s admission.

Additional requirement where applicant is physician

(5) Where the applicant is a physician, the administrator shall not admit the child under subsection (2) unless the administrator is satisfied that the applicant believes the criteria set out in that subsection are met.

Notices required

(6) The administrator shall ensure that within twenty-four hours after a child is admitted to a secure treatment program under subsection (2),

(a) the child is given written notice of his or her right to a review under subsection (9); and

(b) the Provincial Advocate for Children and Youth and the Children’s Lawyer are given notice of the admission.

Mandatory advice

(7) The Provincial Advocate for Children and Youth shall ensure that forthwith after the notice is received a person who is not employed by the secure treatment facility explains to the child his or her right to a review in language suitable for the child’s level of understanding. R.S.O. 1990, c. C.11, s. 124 (7); 2007, c. 9, s. 25 (5).

Children’s Lawyer to ensure child represented

(8) The Children’s Lawyer shall represent the child at the earliest possible opportunity and in any event within five days after receiving a notice under subsection (6) unless the Children’s Lawyer is satisfied that another person will provide legal representation for the child within that time.

Application for review

(9) Where a child is admitted to a secure treatment program under this section, any person, including the child, may apply to the Board for an order releasing the child from the secure treatment program. R.S.O. 1990, c. C.11, s. 124 (9).

Child may be kept in program while application pending

(10) Where an application is made under subsection (9), the child may be kept in the secure treatment program until the application is disposed of. R.S.O. 1990, c. C.11, s. 124 (10).

Procedure

(11) Subsections 114 (7), (8) and (9) (hearing) and section 115 (waive oral evidence) apply with necessary modifications to an application made under subsection (9).

Time for review

(12) Where an application is made under subsection (9), the Board shall dispose of the matter within five days of the making of the application. R.S.O. 1990, c. C.11, s. 124 (12).

Order

(13) The Board shall make an order releasing the child from the secure treatment program unless the Board is satisfied that the child meets the criteria for emergency admission set out in clauses 124 (2) (a) to (e).

Mental Health Act, RSO 1990, c M.7, s.43

Counsel for patient under 16

43. If a patient who is less than 16 years old is a party to a proceeding before the Board under section 13 or 39 and does not have legal representation,

(a) the Board may direct the Children’s Lawyer to arrange for legal representation to be provided for the patient; and

(b) the patient shall be deemed to have capacity to retain and instruct counsel.

Health Care Consent Act, 1996, SO 1996, c 2, Sch A

PART V: CONSENT AND CAPACITY BOARD

Counsel for incapable person

81. (1) If a person who is or may be incapable with respect to a treatment, managing property, admission to a care facility or a personal assistance service is a party to a proceeding before the Board and does not have legal representation,

(a) the Board may direct Legal Aid Ontario to arrange for legal representation to be provided for the person; and

(b) the person shall be deemed to have capacity to retain and instruct counsel.

Responsibility for legal fees

(2) If legal representation is provided for a person in accordance with clause (1) (a) and no certificate is issued under the Legal Aid Services Act, 1998 in connection with the proceeding, the person is responsible for the legal fees.

Same

(2.1) Nothing in subsection (2) affects any right of the person to an assessment of a solicitor’s bill under the Solicitors Act or other review of the legal fees and, if it is determined that the person is incapable of managing property, the assessment or other review may be sought on behalf of the person by,

(a) the person’s guardian of property appointed under the Substitute Decisions Act, 1992; or

(b) the person’s attorney under a continuing power of attorney for property given under the Substitute Decisions Act, 1992.

Child in secure treatment program

(3) If a child who has been admitted to a secure treatment program under section 124 of the Child and Family Services Act is a party to a proceeding before the Board, the Children’s Lawyer shall provide legal representation for the child unless the Children’s Lawyer is satisfied that another person will provide legal representation for the child.

Estates

Estates Act, RSO 1990, c E.21

Right of appeal

10. (1) Any party or person taking part in a proceeding under this Act may appeal to the Divisional Court from an order, determination or judgment of the Superior Court of Justice if the value of the property affected by such order, determination or judgment exceeds $200.

Rights of persons interested to appeal

(2) Where the claimant or personal representative having a right of appeal does not appeal from the order, judgment or determination, the Children’s Lawyer or any person beneficially interested in the estate may, by leave of a judge of the Divisional Court, appeal therefrom. R.S.O. 1990, c. E.21, s. 10 (2); 1994, c. 27, s. 43 (2).

Rights of persons interested to be heard at appeal

(3) The Children’s Lawyer or any person beneficially interested in the estate, may, by leave of a judge of the Divisional Court, appear and be heard upon any such appeal.

Contestation of claims against estate

44. (1) Where a claim or demand is made against the estate of a deceased person or where the personal representative has notice of such claim or demand, they may serve the claimant with a notice in writing that they contest the same in whole or in part, and, if in part, stating what part, and also referring to this section. R.S.O. 1990, c. E.21, s. 44 (1).

Application for order allowing claim

(2) Within thirty days after the receipt of such notice of contestation or within three months thereafter if the judge of the Superior Court of Justice on application so allows, the claimant may, upon filing with the registrar a statement of their claim verified by affidavit and a copy of the notice of contestation, apply to the judge of the Superior Court of Justice for an order allowing the claim and determining the amount of it, and the judge shall hear the parties and their witnesses and shall make such order upon the application as the judge considers just, and if the claimant does not make such application, the claimant shall be deemed to have abandoned the claim and it is forever barred.

Claim within jurisdiction of Small Claims Court

(3) Where the claim is within the jurisdiction of the Small Claims Court, an application for the extension of time referred to in subsection (2) and the application for the order shall be made to the judge of a Small Claims Court in which an action for the recovery of the claim might be brought, and the application for the order shall be heard by the judge at the sittings of such court, but where the claimant and the personal representative consent, the applications may be made to the judge of the Superior Court of Justice. R

Notice in such cases

(4) Not less than seven days notice of the application shall be given to the personal representative, and where the application is to be made to the judge of the Superior Court of Justice, shall also be given to the Children’s Lawyer if minors are concerned, and to such, if any, of the persons beneficially interested in the estate as the judge may direct.

Right of persons interested to be heard

(5) Where the application is made to the judge of the Superior Court of Justice, in addition to the persons to whom notice has been given, any other person who is interested in the estate has the right to be heard and to take part in the proceeding.

Notice of contestation of unliquidated claims

45. (1) Where any claim or demand not within the meaning of subsection 44 (1) is made against the estate of a deceased person or where the personal representative has notice or knowledge of the claim or demand, they may serve the claimant with the notice prescribed in the said subsection. R.S.O. 1990, c. E.21, s. 45 (1).

Application by claimant for order for directions

(2) Within the time limits mentioned in subsection 44 (2), the claimant may, upon filing with the registrar a statement of their claim verified by affidavit and a copy of the notice of contestation, apply to the judge of the Superior Court of Justice for an order for directions as to the disposition of the claim or demand, and if the claimant does not make the application, the claimant shall be deemed to have abandoned the claim, and it is forever barred.

Notice in such cases

(3) Not less than seven days notice of the application shall be given to the personal representative and to the Children’s Lawyer if minors are concerned and to such, if any, of the persons beneficially interested in the estate as the judge may direct.

Powers of judge

(4) The judge shall make such order upon the application for directions as he or she considers just and, in particular but without limiting the generality of the foregoing, the judge may,

(a) direct the claimant to bring an action for the recovery or establishment of their claim on such terms and conditions as the judge considers just; and

(b) where the claim or demand is not presently recoverable, prescribe the time after which the claimant shall proceed pursuant to the directions. R.S.O. 1990, c. E.21, s. 45 (4).

Application of parts of s. 44

(5) When an order is made under subsection (4), subsections 44 (9), (10), (11) and (12) apply.

Right of persons interested to appeal

(6) If the personal representative does not appeal from an order made under subsection (2) or (4), the Children’s Lawyer or any person beneficially interested in the estate may, by leave of a judge of the Divisional Court, appeal therefrom.

Right of persons interested to be heard on appeal

(7) Where the claimant or the personal representative appeals from an order made under subsection (2) or (4), the Children’s Lawyer and any person beneficially interested in the estate may, by leave of the court that hears the appeal, appear and be heard.

Rules of Civil Procedure, RRO 1990, Reg 194

RULE 74 – ESTATES – NON-CONTENTIIOUS PROCEEDINGS

APPLICATION TO PASS ACCOUNTS

Material to be Filed

Appointment of Person to Represent Interest

74.18(6) Where a person who has a financial interest in an estate is under a disability or is unknown and the Public Guardian and Trustee or Children’s Lawyer is not authorized to represent the interest under any Act and there is no guardian or other person to represent the interest on the passing of the accounts, the court may appoint a person for the purpose.

Land Titles

Land Titles Act, RSO 1990, c L.5

PART VII: SUBSEQUENT REGISTRATIONS

Guardian

73. (1) The guardian of the property of a minor or of a mentally incapable person may make an application, give consent, do an act or be party to a proceeding under this Act if the minor or mentally incapable person could have done so if free from disability. 1992, c. 32, s. 18.

Same

(2) The guardian shall represent the minor or mentally incapable person for the purposes of this Act.

Same

(3) If a minor or a mentally incapable person has no guardian of property, the Children’s Lawyer has power to act under subsections (1) and (2), or the land registrar may appoint a person with power to act under those subsections.

Note: On a day to be named by proclamation of the Lieutenant Governor, subsection (3) is repealed and the following substituted:

If no guardian

(3) If a minor or a mentally incapable person has no guardian of property, the Children’s Lawyer or a person appointed by a court has power to act under subsections (1) and (2). 2012, c. 8, Sched. 28, s. 46.

Workplace Safety and Insurance

Workplace Safety and Insurance Act, 1997, SO 1997, c 16, Sch A

PART III: INSURANCE PLAN

Election, concurrent entitlements

30. (1) This section applies when a worker or a survivor of a deceased worker is entitled to benefits under the insurance plan with respect to an injury or disease and is also entitled to commence an action against a person in respect of the injury or disease.

Election

(2) The worker or survivor shall elect whether to claim the benefits or to commence the action and shall notify the Board of the option elected. 1997, c. 16, Sched. A, s. 30 (2).

Same

(3) If the worker is or was employed by a Schedule 2 employer, the worker or survivor shall also notify the employer.

Same

(4) The election must be made within three months after the accident occurs or, if the accident results in death, within three months after the date of death.

Same

(5) The Board may permit the election to be made within a longer period if, in the opinion of the Board, it is just to do so.

Same

(6) If an election is not made or if notice of election is not given, the worker or survivor shall be deemed, in the absence of evidence to the contrary, to have elected not to receive benefits under the insurance plan. 1

Same, minor

(7) If the worker or survivor is less than 18 years of age, his or her parent or guardian or the Children’s Lawyer may make the election on his or her behalf.

Intervenor

Courts of Justice Act, R.S.O. 1990, Chap. C. 43

RULE 13 INTERVENTION

LEAVE TO INTERVENE AS ADDED PARTY

13.01 (1) A person who is not a party to a proceeding may move for leave to intervene as an added party if the person claims,

(a) an interest in the subject matter of the proceeding;

(b) that the person may be adversely affected by a judgment in the proceeding; or

(c) that there exists between the person and one or more of the parties to the proceeding a question of law or fact in common with one or more of the questions in issue in the proceeding. R.R.O. 1990, Reg. 194, r. 13.01 (1).

(2) On the motion, the court shall consider whether the intervention will unduly delay or prejudice the determination of the rights of the parties to the proceeding and the court may add the person as a party to the proceeding and may make such order as is just. R.R.O. 1990, Reg. 194, r. 13.01 (2).

LEAVE TO INTERVENE IN DIVISIONAL COURT OR COURT OF APPEAL

13.03 (1) Leave to intervene in the Divisional Court as an added party or as a friend of the court may be granted by a panel of the court, the Chief Justice or Associate Chief Justice of the Superior Court of Justice or a judge designated by either of them.

(2) Leave to intervene as an added party or as a friend of the court in the Court of Appeal may be granted by a panel of the court, the Chief Justice or Associate Chief Justice of Ontario or a judge designated by either of them.

Amicus Curiae

Courts of Justice Act, R.S.O. 1990, Chap. C. 43

LEAVE TO INTERVENE AS FRIEND OF THE COURT

13.02 Any person may, with leave of a judge or at the invitation of the presiding judge or master, and without becoming a party to the proceeding, intervene as a friend of the court for the purpose of rendering assistance to the court by way of argument. R.R.O. 1990, Reg. 194, r. 13.02; O. Reg. 186/10, s. 1.

LEAVE TO INTERVENE IN DIVISIONAL COURT OR COURT OF APPEAL

13.03 (1) Leave to intervene in the Divisional Court as an added party or as a friend of the court may be granted by a panel of the court, the Chief Justice or Associate Chief Justice of the Superior Court of Justice or a judge designated by either of them. R.R.O. 1990, Reg. 194, r. 13.03 (1); O. Reg. 292/99, s. 4; O. Reg. 186/10, s. 2.

(2) Leave to intervene as an added party or as a friend of the court in the Court of Appeal may be granted by a panel of the court, the Chief Justice or Associate Chief Justice of Ontario or a judge designated by either of them. R.R.O. 1990, Reg. 194, r. 13.03 (2); O. Reg. 186/10, s. 2; O. Reg. 55/12, s. 1.

xi. PRINCE EDWARD ISLAND

Legal Representation

Generally

Rules of Civil Procedure (PEI)

PARTIES AND JOINDER

RULE 7 PARTIES UNDER DISABILITY

REPRESENTATION

7.01 A proceeding shall be commenced, continued or defended on behalf of,

(a) a minor, by a litigation guardian;

COMMENCEMENT OF PROCEEDINGS

RULE 15 REPRESENTATION BY SOLICITOR

WHERE SOLICITOR IS REQUIRED

15.01 (a) Subject to the provisions of the Legal Profession Act and sub-rule 4 of Rule 74.11 governing proceedings in the small claims section, a party to a proceeding who is under disability or acts in a representative capacity shall be represented by a solicitor.

Family Law

Custody Jurisdiction and Enforcement Act, RSPEI 1988, c C-33

CUSTODY AND ACCESS

4.1 (1) Assessment of needs of child

The court before which an application is brought in respect of custody of or access to a child, by order, may appoint a person who has technical or professional skill to assess and report to the court on the needs of the child and the ability and willingness of the parties or any of them to satisfy the needs of the child.

4.1 (10) Assessment may be witnessed

Any of the parties, and counsel, if any, representing the child, may require the person appointed under subsection (1) to attend as a witness at the hearing of the application.

Rules of Civil Procedure (PEI)

PARTICULAR PROCEEDINGS

RULE 70 – DIVORCE ACTIONS

CHILDREN AND DIRECTOR OF CHILD PROTECTION’S REPORT

CHILDREN AND DIRECTOR OF CHILD PROTECTION’S REPORT

Application of Rule

70.16 (1) Subrules (2) to (13) apply where there is a child of the marriage within the meaning of s. 2 of the Act.

Children to be Identified

(2) The name and birth date of every child of the marriage shall beset out in the petition or counterpetition.

Service of Documents on Director of Child Protection

(3) Where custody of or access to children is claimed, the petition or counterpetition shall be served on the Director of Child Protection in accordance with Rule 16, and the Director of Child Protection shall forward a letter to the registrar, with a copy to counsel for the petitioner indicating whether or not the Director intends to investigate the matter.

Notice of Intention to Investigate and Report

(4) Where the Director of Child Protection intends to investigate and report to the court concerning custody of or access to a child, he or she shall serve notice of that intention (Form 70M) on the parties and shall file a copy of the notice with proof of service.

(5) Service of the notice on a party who has been noted in default shall be effected by mail addressed to the party at his or her last known address, unless the court orders otherwise.

Service of Documents on Director of Child Protection

(6) Where the Director of Child Protection has served notice, a party who subsequently serves an answer, reply or notice of motion or any other document that relates to custody of or access to the child or relates to the child's support or education shall also serve it on the Director of Child Protection within the time prescribed for service on the parties.

Discovery by Director of Child Protection

(7) Where the Director of Child Protection has served notice, he or she has the right to discovery in respect of any matter that relates to custody of or access to the child or relates to the child's support or education.

Service of Report

(8) The Director of Child Protection shall serve his or her report on the parties interested in custody of or access to the child or in the child's support or education, within sixty days after serving notice under subrule (4), and shall then forthwith file a copy of the report and supporting affidavit, if any, with proof of service.

(9) Subrule (5) applies, with necessary modifications, to service of the report.

Dispute of Report

(10) A party on whom the report is served may dispute a statement in it or in any supporting affidavit by serving a concise statement of the nature of the dispute on every other party interested in custody of or access to the child or in the child's support or education, and on the Director of Child Protection, and filing the statement, with proof of service, within fifteen days after service of the report.

(11) Where the Director of Child Protection has served notice under subrule (4), the action shall not be tried and no motion for judgment shall be heard until,

(a) all disputes have been filed or the time for filing disputes has expired; or

(b) every party interested in custody of or access to the child or in the child's support or education has filed a waiver (Form 70N) of the right to dispute the report.

Court Appointment of Child Advocate

70.16 (12) On motion of the Director of Child Protection, a judge shall designate an attorney as a child advocate and direct that such child advocate may intervene for the purpose of protecting the interest of the children concerned.

RULE 71 – FAMILY LAW PROCEEDINGS

DIRECTOR OF CHILD PROTECTION'S REPORT

71.06 Subrules 70.16(1) to (8) (Director of Child Protection's Report) apply, with necessary modifications, to proceedings under the Custody Jurisdiction and Enforcement Act.

Child Protection

Child Protection Act, RSPEI 1988, c C-5.1

Court Applications

29(1) Application for order

The Director may apply to the court for an order for

(a) supervision;

(b) temporary custody and guardianship followed by supervision;

(c) temporary custody and guardianship; or

(d) permanent custody and guardianship, of a child in need of protection.

29(2) Two stage hearing

An application pursuant to subsection (1) shall be conducted in two stages

(a) a protection hearing pursuant to section 36; and

(b) a disposition hearing pursuant to section 37.

29(3) Dates for hearings

The date for a protection hearing shall be set in accordance with section 31.

34 (1) Explanation to child, counsel

Where the Director has made an application pursuant to section 29, and the child who is the subject of the proceedings is at least 12 years old and apparently capable of understanding the circumstances,

(a) the Director shall explain, to the degree that the child can understand, the nature of the proceedings and their possible implications to the child; and

(b) the court may order that the child be represented by counsel at the expense of the Director.

Intervenor

Rules of Civil Procedure (PEI)

RULE 13 INTERVENTION

LEAVE TO INTERVENE AS ADDED PARTY

13.01 (1) Where a person who is not a party to a proceeding claims,

(a) an interest in the subject matter of the proceeding;

(b) that he or she may be adversely affected by a judgment in the proceeding; or

(c) that there exists between him or her and one or more of the parties to the proceeding a question of law or fact in common with one or more of the questions in issue in the proceeding, the person may move for leave to intervene as an added party.

(2) On the motion the court shall consider whether the intervention will unduly delay or prejudice the determination of the rights of the parties to the proceeding and the court may add the person as a party to the proceeding and may make such order for pleadings and discovery as is just.

LEAVE TO INTERVENE IN COURT OF APPEAL

13.03 Leave to intervene as an added party or as a friend of the court in the Court of Appeal may be granted by a panel of the court or the Chief Justice of Prince Edward Island.

Amicus Curiae

Rules of Civil Procedure (PEI)

LEAVE TO INTERVENE AS FRIEND OF THE COURT

13.02 Any person may, with leave of a judge or at the invitation of the presiding judge, and without becoming a party to the proceeding, intervene as a friend of the court for the purpose of rendering assistance to the court by way of argument.

xii. QUEBEC

Legal Representation

Generally

Code of Civil Procedure, CQLR c C-25

BOOK I: GENERAL PROVISIONS

TITLE III RULES APPLICABLE TO ALL ACTIONS

CHAPTER I

ACTIONS, PARTIES TO ACTIONS AND ATTORNEYS

56. A person must be able to fully exercise his rights to be a party to an action in whatever form it may be, saving contrary provisions of law.

A person who is not able to fully exercise his rights must be represented, assisted or authorized, in the manner provided by the laws which govern his status and capacity or by this Code.

BOOK II: ORDINARY PROCEDURE IN COURTS OF FIRST INSTANCE

TITLE V: PROOF AND HEARING

CHAPTER II.1

REPRESENTATION AND HEARING OF A MINOR OR AN INCAPABLE PERSON OF FULL AGE

394.1. Where, in a proceeding, the court ascertains that the interest of a minor or of a person of full age it considers incapable is at stake and that it is necessary for the safeguard of his interest that the minor or incapable person of full age be represented, it may, even of its own motion, adjourn the hearing of the application until an attorney is appointed to represent him.

The court may also make any order necessary to ensure such representation, in particular, rule on the fees payable to the attorney and determine who will be responsible for their payment.

394.2. To ensure proper representation of a minor or incapable person of full age, the court must, even of its own motion, in all cases where the interest of the minor or incapable person of full age is opposed to the interest of his legal representative, appoint a tutor or curator ad hoc.

CHAPTER III

COSTS

478.1. The costs of joint actions are shared equally by the parties, unless they have agreed to the contrary or the court, by judgment giving reasons, orders otherwise.

Similarly, costs resulting from the decision of the court to allow a child to be represented by an attorney in family proceedings are shared equally by the parties, unless the court, by judgment giving reasons, orders otherwise.

In any proceedings other than family proceedings, the costs relating to the representation by an attorney of a minor, or a person of full age it considers incapable are awarded by the court according to the circumstances.

Child Protection

Youth Protection Act, CQLR c P-34.1

CHAPTER I

INTERPRETATION AND SCOPE

1. In this Act, unless the context indicates a different meaning,

(c) “child” means a person under 18 years of age;

2. This Act applies to any child whose security or development is or may be considered to be in danger.

CHAPTER II

GENERAL PRINCIPLES AND CHILDREN'S RIGHTS

6. The persons and courts called upon to take decisions respecting a child under this Act must give this child, his parents and every person wishing to intervene in the interest of the child an opportunity to be heard.

9. Any child placed in a foster family or by an institution which operates a rehabilitation centre or a hospital centre has the right to communicate in all confidentiality with his advocate, the director who has taken charge of his situations, the Commission and the judges and clerks of the tribunal.

CHAPTER V – JUDICIAL INTERVENTION

80. Where the tribunal establishes that the interests of the child are opposed to those of his parents, it must see that an advocate is specifically assigned to counsel and represent the child and that he does not act, at the same time, as counsel or attorney for the parents.

1977, c. 20, s. 80; 1988, c. 21, s. 119; 1989, c. 53, s. 11; 2006, c. 34, s. 48.

81. The tribunal shall hear the persons concerned and the advocates representing them.

The child, the child's parents and the director are parties to the hearing.

The Commission may, ex officio, intervene at the proof and hearing as if it were a party to it. The same applies to the Public Curator if a tutorship is concerned

For the requirements of the proof and hearing, the tribunal may grant any other person the status of party to the hearing if it considers it expedient to do so in the interest of the child. The status of party remains valid until withdrawn by a decision or order of the tribunal.

A person who has information likely to enlighten the tribunal in the interest of the child may, on request, be heard by the tribunal and be assisted by an advocate.

84. The tribunal may exclude the child or any other person from the hearing when the information produced could, in the opinion of the tribunal, cause prejudice to the child, if it were produced in the presence of the child or such other person. The advocate of the child must however remain at the hearing to represent him. If the child has no advocate, the tribunal shall appoint one to him ex officio.

The advocate of any other person excluded from the hearing may remain present to represent him.

Intervenor Status

Code of Civil Procedure, chapter C-25

BOOK II: ORDINARY PROCEDURE IN COURTS OF FIRST INSTANCE

CHAPTER II: PARTICIPATION OF THIRD PARTIES IN THE ACTION

SECTION I: VOLUNTARY INTERVENTION

An intervening party becomes a party to the proceeding.

1965 (1st sess.), c. 80, a. 210; 2002, c. 7, s. 37.

211. A third party may ask to intervene in order to make representations during the trial. The third party must inform the parties in writing of the purpose of and the grounds for the intervention. After hearing the parties, the court may authorize the intervention if it deems it expedient, having regard to the questions at issue.

Amicus Curiae: No statutory provisions

xiii. SASKATCHEWAN

Legal Representation

Generally

Queen’s Bench Rules

DIVISION 2 Litigation Representatives

Subdivision 1 Persons Under Disability

Minor may proceed as adult or by litigation guardian

2-14(1) A minor may commence, continue or defend a proceeding as if of the age of majority if:

(a) the minor is party to a proceeding as a spouse or a co-respondent and the proceeding is a family law proceeding;

(b) the minor has been granted a needy person’s certificate; or

(c) before or after commencing the proceeding, the minor obtains the leave of the Court.

(2) A minor may sue for wages as if of the age of majority.

(3) Except where otherwise provided, a minor may commence, continue or defend a proceeding by a litigation guardian.

Rules re appointment of litigation guardian for minor

2-15 (1) Unless the Court orders otherwise, any person who is not under disability may act as a litigation guardian for a minor without being appointed by the Court.

(2) No person other than the Public Guardian and Trustee acting pursuant to The Public Guardian and Trustee Act or a litigation guardian appointed by the Court shall act as litigation guardian for a minor until the person has filed an affidavit in Form 2-15.

(3) No person may be appointed as a litigation guardian without that person’s consent.

Substitution of litigation guardian

2-21 (1) If, at any time, it appears to the Court that a litigation guardian is not acting in the best interests of the party under disability or if the litigation guardian wishes to resign, the Court may appoint and substitute another person as litigation guardian on any terms and conditions that the Court considers just.

(2) The Court may give any directions to protect a party under disability that the Court considers proper if, at any time:

(a) no person appears for a party under disability;

(b) the interests of the litigation guardian are, or may be, adverse to the interests of the party under disability; or

(c) the Court is satisfied for any other reason that the interests of the party under disability may require protection.

Family Law

Queens Bench Rules

Part 15: Family Law ProceedingsFootnote 214

Parties

15-9 (5) A minor may commence, continue or defend a family law proceeding as if of the age of majority.

Child Protection

Queen’s Bench Act, 1998, C.Q-1.01

PART VI: PROCEDURE

33.1 Appointment of lawyer in protection hearing

33.1 (1) In this section, “child” and “protection hearing” have the same meaning as in section 2 of The Child and Family Services Act.

(2) Notwithstanding any of the court’s other powers, if an application for a protection hearing is made, the court may direct that the child be represented by a lawyer if the court is satisfied that the interests or views of the child would not otherwise be adequately represented.

(3) If the court directs that a child be represented by a lawyer pursuant to subsection (2), the court shall refer the child to the public guardian and trustee in accordance with section 6.3 of The Public Guardian and Trustee Act, and the public guardian and trustee shall appoint a lawyer to represent the child.

(4) In making a direction pursuant to subsection (2), the court shall consider all relevant factors, including:

(a) any difference between the interests or views of the child and the interests or views of the parties to the protection hearing;

(b) the nature of the protection hearing, including the seriousness and complexity of the issues;

(c) the ability of the child to express his or her interests or views; and (d) the views of the child regarding representation.

(5) Notwithstanding that a child is represented by a lawyer, the child is not a party to the protection hearing

Public Guardian and Trustee Act, SS 1983, c P-36.3

PUBLIC TRUSTEE ESTABLISHED

6.3 Lawyer for child in protection hearing

6.3 (1) In this section, "child", "court" and "protection hearing" have the same meaning as in section 2 of The Child and Family Services Act.

6.3 (2) Notwithstanding any of the court's other powers, if an application for a protection hearing is made, the court may direct that the child be represented by a lawyer if the court is satisfied that the interests or views of the child would not otherwise be adequately represented.

6.3 (3) If the court directs that a child be represented by a lawyer pursuant to subsection (2), the court shall refer the child to the public guardian and trustee and the public guardian and trustee shall appoint a lawyer to represent the child.

6.3(4) On receiving a referral from anyone other than the court, the public guardian and trustee may appoint a lawyer to represent a child with respect to all matters relating to the protection of the child.

6.3 (5) If the public guardian and trustee has appointed a lawyer pursuant to subsection (3) or (4), the public guardian and trustee shall file a notice with the court that a lawyer has been appointed.

6.3 (6) For the purpose of making appointments pursuant to subsection (3) or (4), the public guardian and trustee may establish and maintain a list of lawyers and may enter into contracts with lawyers and law firms.

6.3 (7) The public guardian and trustee and a lawyer appointed pursuant to this section are entitled to do the following:

(a) have reasonable access to the child;

(b) obtain disclosure from parties to the protection hearing;

(c) participate in all matters relating to the protection hearing;

(d) address the court in a protection hearing;

(e) file written submissions in a protection hearing;

(f) call, examine, cross-examine and re-examine witnesses in a protection hearing.

6.3 (8) If any person fails to provide access or disclosure in accordance with clause (7)(a) or (b), the public guardian and trustee, or any person designated by the public guardian and trustee on an application ex parte, may request that the court grant an order requiring that person to immediately provide access or disclosure, as the case may be, and the court may make any other order that it considers necessary to enforce the provisions in subsection (7).

6.3 (9) Before making an appointment pursuant to subsection (4), the public guardian and trustee shall consider all relevant factors, including:

(a) any difference between the interests or views of the child and the interests or views of the parties to the protection hearing;

(b) the nature of the protection hearing, including the seriousness and complexity of the issues;

(c) the ability of the child to express his or her interests or views; and

(d) the views of the child regarding representation.

Provincial Court Act, 1988, SS 1998, c. P-30.11

Appointment of lawyer in protection hearing

64.1 (1) In this section, “child” and “protection hearing” have the same meaning as in section 2 of The Child and Family Services Act.

(2) If an application for a protection hearing is made, the court may direct that the child be represented by a lawyer if the court is satisfied that the interests or views of the child would not otherwise be adequately represented.

(3) If the court directs that a child be represented by a lawyer pursuant to subsection (2), the court shall refer the child to the public guardian and trustee in accordance with section 6.3 of The Public Guardian and Trustee Act, and the public guardian and trustee shall appoint a lawyer to represent the child.

(4) In making a direction pursuant to subsection (2), the court shall consider all relevant factors, including:

(a) any difference between the interests or views of the child and the interests or views of the parties to the protection hearing;

(b) the nature of the protection hearing, including the seriousness and complexity of the issues;

(c) the ability of the child to express his or her interests or views; and

(d) the views of the child regarding representation.

(5) Notwithstanding that a child is represented by a lawyer, the child is not a party to the protection hearing.

Intervenor

Queen’s Bench Act, 1998, C.Q-1.01

PART XII: PARTICULAR FAMILY LAW PROCEEDINGS

Allowing intervention on terms

108 A judge may allow a person to intervene in an action, on any terms that the judge considers appropriate, where:

(a) the person is charged with adultery with any party to the action; or

(b) the judge considers, in the interest of any person not already a party to the action, that the person should be made a party to the action.

Queen’s Bench Rules, Sask. Q.B. Rules

Subdivision 4 Intervenors

Intervenor status

2-12 On application, the Court may grant status to a person to intervene in an action subject to any terms and conditions and with the rights and privileges specified by the Court.

The Court of Appeal Rules

PART VII INTERVENTION

Intervention

17 (1) Any person interested in any proceeding before the court may, by leave of the court, intervene in the proceeding on the terms and conditions the court may direct.

(2) Any intervenor before the court appealed from shall be served with a notice of appeal and notice of cross-appeal, if any, but shall not have the status of an intervenor on appeal unless leave to intervene is first granted by the court.

(3) An application to intervene shall be made to the court on notice to all parties and other interveners in the proceeding.

Amicus Curiae

Queen’s Bench Rules, Sask. Q.B. Rules

Subdivision 4 Intervenors

Leave to intervene as a friend of the Court

2-13 (1) The Court may order that a person may, without becoming a party to the proceeding, intervene in the proceeding as a friend of the Court for the purpose of assisting the Court by way of argument or by presentation of evidence.

(2) The Court may make an order pursuant to subrule (1) on any terms as to costs or otherwise that the Court may impose.

R.2-13.

xiv. YUKON

Legal Representation

Divorce and Family Law

Rules of Court, Y.O.I.C. 2009/65

RULE 63: DIVORCE AND FAMILY LAW

Minors

Party who is a minor

(22) A minor who has attained the age of 16 years and who is a party to a family law proceeding may act without a litigation guardian and the provisions of Rule 6 do not apply to that party.

Appointment of litigation guardian

(23) Notwithstanding subrule (22), if the court considers that it is in the interest of a minor referred to in subrule (22) or of any child of the minor, it may, on application or on its own motion, appoint a litigation guardian for the minor or for the child of the minor.

Custody, Access and Guardianship

Children's Law Act, RSY 2002, c 31

4. Interpretation

PREAMBLE

In this Act,

"parent" means the father or mother of a child by birth, or because of an adoption order made or recognized under Part 5 of the Child and Family Services Act or any predecessor to that Part; ("père ou mère") "official guardian" means the Public Guardian and Trustee.

PART 5: PROCEDURAL AND GENERAL MATTERS

168. Separate representation of children

168 (1) In this section a reference to a child is a reference to a child while still a minor.

168 (2) In proceedings under this Act, the official guardian shall have the exclusive right to determine whether any child requires separate representation by a lawyer or any other person that will be paid for at public expense chargeable to the Yukon Consolidated Revenue Fund.

168 (3) In proceedings under this Act a child requiring separate representation may include

(a) a child for whom there is no guardian other than the official guardian;

(b) a child in the care of the director of family and children's services; or

(c) a child alleged to be in need of protection.

168 (4) The official guardian may act as guardian for the proceeding or appoint a guardian for the proceeding for a child needing separate representation.

168 (5) When determining whether separate representation or the appointment of a guardian for the proceeding for the child at public expense is required, the official guardian

(a) shall consider advice or recommendations from the judge before whom or court in which the proceedings are taking place and any party to the proceeding; and

(b) shall consider

(i) the ability of the child to comprehend the proceeding,

(ii) whether there exists and if so the nature of any conflict between the interests of the child and the interest of any party to the proceeding, and

(iii) whether the parties to the proceeding will put or are putting before the judge or court the relevant evidence in respect of the interests of the child that can reasonably be adduced.

168 (6) If the official guardian is of the opinion that separate representation of a child is required and is best achieved by the appointment of a person other than a lawyer the official guardian may appoint that other person.

168 (7) An official guardian who acts as or appoints a guardian for the proceeding pursuant to this section shall as soon a practicable inform the concerned parents or other person entitled to care and custody and cause the child to be informed if the child is of sufficient age and understanding to comprehend the appointment.

Child Protection

Child and Family Services Act, S.Y. 2008, c. 1

Part 1 – Introductory Provisions

1. Definitions

In this Act

"child" means a person who is under 19 years of age. ("enfant")

"official guardian" means the Public Guardian and Trustee. ("tuteur public")

"youth" means a person who is 16 years of age or over but is under 19 years of age. ("adolescent")

Part 3 — Protection of Children

Division 5 — Procedure and Evidence

76. Separate representation of children

76 (1) For the purposes of an application made or proposed by any person to a judge under this Part, the official guardian has the exclusive right to determine whether a child requires the appointment of a guardian, or separate representation by a lawyer or any other person, that will be paid for at public expense chargeable to the Government of Yukon's consolidated revenue fund.

76 (2) The official guardian may act as guardian for the proceeding or appoint a guardian for the proceeding for a child needing separate representation.

76 (3) When determining whether separate representation or the appointment of a guardian for the proceeding for the child at public expense is required, the official guardian

(a) shall consider advice or recommendations from the judge or from any party to the application; and

(b) shall consider

(i) the ability of the child to comprehend the application,

(ii) whether there exists a conflict between the interests of the child and the interests of any party to the application and, if so, the nature of the conflict, and

(iii) whether the parties to the application will put or are putting before the judge the relevant evidence in respect of the interests of the child that can reasonably be adduced.

76 (4) If the official guardian believes that separate representation of a child is required and is best achieved by the appointment of a person other than a lawyer, the official guardian may appoint that other person.

76 (5) An official guardian who acts as or appoints a guardian for the proceeding shall as soon as practicable inform the parents and the child, if the child is of sufficient age and understanding to comprehend

Intervenor

Child and Family Services Act, SY 2008, c 1

Parties

48 (2) A judge may grant party or intervener status to any person on such terms as the judge considers appropriate. S.Y. 2008, c.1, s.48

Court of Appeal Rules, 2005, 2005

PART 6: APPLICATIONS

Applications for intervenor status

36 (1) Any person interested in an appeal may apply to a justice for leave to intervene on any terms and conditions that the justice may determine.

Amicus Curiae: No statutory provisions

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