Legal Representation of Children in Canada

Appendix B: Appointment of Legal Counsel to the Child in a Child Protection Case

Alberta

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 5 , 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(b) repealed 2008 c31 s50.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.

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.

(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.

Manitoba

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.

New Brunswick

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.

Northwest Territories

Child and Family Services Act, SNWT 1997, c 13

Principles [3.1 not yet in force]

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 endeavour, 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.

Nova Scotia

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.

Nunavut

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

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.

Ontario

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

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.

Prince Edward Island

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.

Quebec

Youth Protection Act, CQLR c P-34.1

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.

Civil Code of Québec, CQLR c C-1991

CHAPTER V

JUDICIAL INTERVENTION

DIVISION I

JURISDICTION

§ 1. — Declaration and hearing

78. The tribunal must inform the parents and the child of their right to be represented by an advocate.

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.

Saskatchewan

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.

Yukon

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

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 the appointment.

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