Legal Representation of Children in Canada

2. Legal Representation of Children in Canada: Legislative Authority

In this section of the paper, federal legislation, in addition to the legislation of all ten provinces and three territories, is analyzed to determine the extent to which children are afforded legal representation by statute. At Appendix “A”, the reader will find the legislative provisions, which provide for the appointment of legal counsel for the child in Canada (federally and then by jurisdiction), as well as provisions for the appointment of amicus curiae and for intervener status. The areas of divorce, criminal law and immigration in the federal context will first be examined. This will be followed by a comparative analysis of provincial legislation in the areas of child protection, family law, as well as mental health and secure treatment.

As noted above, there is little uniformity between jurisdictions and sometimes even within a jurisdiction regarding the appointment of legal counsel to the child. Variances are not only evident between provinces but also between areas of law.  This has not escaped the scrutiny of academics, such as Fleishman, who writes that “[t]he interests of the children involved in family law proceedings are somehow seen as less deserving of representation than those of a child who has been accused of a crime.”Footnote 16

a. Federal legislation

i. Divorce

The Divorce ActFootnote 17 provides that “any…person” can apply for a custody or access order, or the variation of such an order, with leave of the court.Footnote 18 As the Alberta Court of Appeal noted in Puszczak v. Puszczak in obiter, this language is broad enough that it could include a child of the marriage who brings his or her own application for a custody or access order.Footnote 19 As a party to the case, the child would be able to retain legal representation (assuming the child had the capacity to do so). However, to date there are no known decisions where a child has brought an application regarding their own custody or access pursuant to these statutory provisions.  Where courts have appointed legal counsel for a child in a custody and access case, this has been done pursuant to provincial legislation and/or via the court’s parens patriae jurisdiction as will be further discussed below.

ii. Criminal law

The Youth Criminal Justice ActFootnote 20 unequivocally affirms the right of a child to legal representation both before and during criminal proceedings:

s. 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.

As can be seen from the above, the young person’s participation as a party with decision-making capacity is presumed.Footnote 21 Note that some jurisdictions provide for similar provisions for the appointment of counsel in the criminal context.  For example, New Brunswick and the Northwest Territories have similar statutory procedures for children who are accused of provincial offenses.Footnote 22 Nunavut’s Young Offenders Act contains a similar provision that applies to all children before its youth court.Footnote 23

The importance of the obligation to advise the child of the right to retain and instruct counsel is reflected by the inadmissibility of any statements made to police where the police fail to explain this right or fail to provide the young person with the opportunity to consult with counsel.Footnote 24 The child may privately retain a lawyer if they have the means to do so, or they may receive legal aid. While the availability of legal aid is beyond the scope of this paper, the author points the reader to Wilson’s text which provides an appendix that lists by province, the eligibility requirements for legal aid, the method of delivery of legal services, and the application process and procedures for legal aid assistance.Footnote 25

Importantly, s. 25(4)(b) of the Youth Criminal Justice Act states that “if no legal aid program or assistance program is available or the young person is unable to obtain counsel through the program, [the youth justice court] may, and on the request of the young person shall, direct that the young person be represented by counsel” [emphasis added], making it clear that a child’s right to state-funded legal counsel trumps. That being said, courts have interpreted the language “unable to obtain counsel” to either provide or deny the appointment of legal counsel.  For example, the Ontario Court of Appeal in R. v. J. (H.)Footnote 26, held that to determine if a young person was “unable” to obtain a lawyer, the court must examine the reasons why legal counsel was denied and held that parents’ resources were relevant to such inquiry. In contrast, the Alberta Court of Queen’s Bench held that courts have no discretion to decline to direct that legal counsel be appointed where the youth has been unable to obtain counsel due to the unavailability of legal aid.Footnote 27 Significant for the purposes of this paper, is the fact that even in the criminal context, where a child’s right to counsel receives heightened support and protections, a lawyer will not be appointed for a youth in every circumstance.

Notable, is the court’s authority, when the young person is not represented by counsel to allow the young person to be assisted by an adult.Footnote 28 However, such authority is to be used in limited circumstances, as noted by Cohen J. when dismissing the application by a young person for an order permitting a paralegal to assist him in R. v. K.P.D.Footnote 29 Cohen J.’s comments are telling regarding the importance of representation by legal counsel in protecting the rights of young people:

[41]  These limited entitlements speak to parliament’s intention that “assistance” be carefully circumscribed, such that assistants will not be mistaken for lawyers by unsophisticated youth and their families. The Act and the jurisprudence are clear: youth are vulnerable and lacking in knowledge or understanding of the justice system. Since a paralegal is permitted to provide legal services in some circumstances, he/she may be perceived as an inexpensive equivalent to a lawyer by a young person and his family. Difficulties in accessing legal aid, such as occurred in this case, compound the risk.  If assistance is treated as the equivalent of representation in the youth context, there is no doubt that, over time, the statutory scheme intended to protect the rights of young people will be eroded.

[43] Lawyers have the widest right of audience in the courts. As Justice Fuerst points out in  R. v. Lippa, [2013] O.J. No. 3003 (Ont. S.C.J.) at paragraph 15.

…licensed paralegals are not barristers and solicitors. The fact that paralegals are regulated and licensed by the Law Society of Upper Canada and that they provide certain legal services to the public does not make them lawyers. They are not required to obtain a law degree, or to complete articles of clerkship, in order to become licensed. They are not required to write the same licensing examination as lawyers. They are not authorized to provide the broad scope of legal services performed by lawyers.

[46] It is important that courts recognize the inherent limitations imposed on a person providing assistance under section 25(7). Counsel play a crucial role in protecting not only the rights and interests of the young people they represent, but in maintaining the edifice of the Act itself. The court cannot sanction the use of section 25(7) by professionals purporting to offer what can only be a modicum of legal services, in the guise of assistance.Footnote 30

iii. Immigration

In the immigration context, although there is a right to counsel, there is no requirement that a child have legal counsel appointed for them. More often than not, the child will be represented by a designated representative, who is often a relative. This is despite the recognition, as noted by Justice Cohen above, of the importance of legal representation for children and youth.

Children continue to have no independent standing in proceedings under the Immigration and Refugee Protection Act (“IRPA”).Footnote 31 Under the IRPA, all individuals have a right to counsel, including children but, as noted, there are no provisions for such appointment for minors:

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.

Thus, children are required to have a designated representative (similar to a litigation guardian) before the Immigration and Refugee Board. The IRPA states that “[i]f 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.”Footnote 32 Although the best interests of the child must be considered under the IRPA, there is no corresponding requirement that the child’s own personal views and wishes be considered.Footnote 33

In most cases where a child’s claim is heard with a parent or adult relative, that adult will be the designated representative of the child. The role of the designated representative is similar to a litigation guardian and is not that of counsel.Footnote 34 The Immigration and Refugee Board has created guidelines regarding child refugee claimants.Footnote 35 Those guidelines state that the duties of the designated representative are as follows:

  • to retain counsel;
  • to instruct counsel or to assist the child in instructing counsel;
  • to make other decisions with respect to the proceedings or to help the child make those decisions;
  • to inform the child about the various stages and proceedings of the claim;
  • to assist in obtaining evidence in support of the claim;
  • to provide evidence and be a witness in the claim;
  • to act in the best interests of the child.

As of 2013, there was no national policy on designating representatives and the lack of a standard procedure regarding same was noted as a concern by the U.N. Committee on the Rights of the Child.Footnote 36 The three provinces that receive the greatest volume of separated children have each developed their own means of providing a designated representative:

  • In Quebec, Service d’aide aux réfugiés et aux immigrants du Montréal métropolitain (SARIMM), a group of community service centre personnel with expertise in services for refugees and immigrants, is notified by the federal government when an unaccompanied minor arrives. Each minor is assigned two caseworkers: one for the Immigration and Refugee Board process, and one for settlement services.
  • In British Columbia, the Ministry of Children and Family Development has a Migrant Services team that provides representation at Immigration and Refugee Board hearings as well as reception, screening and placement services for unaccompanied minors.
  • In Ontario, a panel composed primarily of immigration lawyers acts as the designated representative for unaccompanied minors before the Immigration and Refugee Board.Footnote 37

Given the importance of representation by legal counsel, it is questionable how the designated representative in the absence of legal counsel, can act in the best interests of the child. As Justice for Children and Youth notes, “immigration-related decisions are another example of administrative decisions in which respect for the child’s views and wishes is sorely lacking.”Footnote 38

b. Provincial Legislation

For the purposes of comparing the appointment of legal representation for a child, this paper focuses on three areas, namely, child protection, family law (custody and access), and mental health and secure treatment.  It will also touch on the area of civil proceedings and estates.  As will be detailed below, there is little consistency between provinces in terms of how and when legal counsel is appointed for a child.Footnote 39

i. Child protection

In the area of child protection, all provinces and territories, with the exception of British ColumbiaFootnote 40 and Newfoundland and LabradorFootnote 41, have legislation that provides for the appointment of legal counsel for a child.  A chart comparing the applicable provisions of such legislation is found at Appendix “B” to this paper.  Only in Ontario, and in the case of a minor parent, is such appointment mandatory.Footnote 42 What is notable when comparing legislation across the country, are the discrepancies as to who can make such appointment, the listed criteria to be considered before such appointment is made, and the type of lawyer (i.e. independent or government) that provides the legal service.  In most provinces and territories, such discretion is in the hands of the court.  With respect to the criteria to be considered prior to making an appointment, five jurisdictions provide extensive criteria for consideration in their legislation, whereas the other six jurisdictions provide much more narrow guidance.  Whether broad or narrow, the listed criteria to be considered before legal counsel is appointed for a child differs between jurisdictions. The lawyer that is appointed is almost always an independent lawyer. Whether or not the independent lawyer is funded through legal aid is not clear on the face of the applicable legislation and is beyond the scope of this paper. Only three jurisdictions, namely Alberta, Ontario, and the Northwest Territories have separate government bodies that provide legal counsel to the child either from its own in-house department or from its designated roster of lawyers.

The first notable difference regarding the appointment of legal counsel for a child in a protection proceeding is who can make such appointment.  In Manitoba, the Northwest Territories, Nova Scotia, Nunavut, and Prince Edward Island, and Quebec, this decision falls to the court.  While this is a common feature to these seven jurisdictions, there are nuanced differences as to how such appointment is made as noted below.  In Manitoba, in the case of a child that is subject to a hearing, the court may order that legal counsel be appointed to represent the interests of the child.Footnote 43 If the child is twelve years of age or older, the court may further order that the child have the right to instruct legal counsel.Footnote 44 In Nova Scotia, where a child is at least twelve years of age, upon request of the child, the court may order that a child be made a party to the proceeding and be represented by a lawyer.Footnote 45 Notably, the Nova Scotia Child and Family Services ActFootnote 46, provides that a child who is sixteen years old or over is a party unless otherwise ordered by the court and is entitled, upon request by the child, to legal representation, although there are no provisions mandating the court to appoint such counsel.Footnote 47 Footnote 48 In the Northwest Territories and in Nunavut, the court “shall ensure” that a child who is a subject of a hearing before the court is represented by legal counsel where it appears that the interests of the child and the parents are in conflict or where it would be in the child’s best interest to have her own lawyer.Footnote 49 Although the Office of the Children’s Lawyer in the Northwest Territories (“NWT OCL”) does not feature in the legislation, it is under s. 86 of the Child and Family Services Act, that the Territorial Court appoint the NWT OCL.Footnote 50 In Prince Edward Island and Quebec, the court may order that any child under the age of eighteen be represented by counsel.Footnote 51

In Alberta, Saskatchewan, New Brunswick, Ontario and the Yukon, the appointment of legal counsel differs from the provinces and territories noted above.  In Alberta, such appointment can be by court order or at the discretion of the Child and Youth Advocate (“OCYA”).  In particular, a court may direct that a lawyer represent a child by referring the child to the OCYA pursuant to the Child, Youth and Family Enhancement Act.Footnote 52 Such referral cannot be made by motion of the court and can only be made if the child, the guardian of the child or a director requests the court to do soFootnote 53 and if “the Court is satisfied that the interests or views of the child would not be otherwise adequately represented.”Footnote 54 Upon such referral the OCYA is mandated to provide legal counsel to the child.Footnote 55 The OCYA, on its own initiative, can also appoint legal counsel for a child in specific circumstances in the absence of a court order.  In particular, the OCYA is authorized by the Child and Youth Advocate ActFootnote 56 and its regulations,Footnote 57 to appoint lawyers “to represent children with respect to any matter under the Child, Youth and Family Enhancement Act or the Protection of Sexually Exploited Children Act or any matter or proceeding prescribed by regulation.”Footnote 58 Footnote 59

In Saskatchewan, the process for appointment of counsel is similar to that in Alberta. If an application for a protection hearing is made, the court may direct that a child be represented by legal counsel and must refer the child to the public guardian and trustee. The public guardian and trustee is then mandated to appoint a lawyer for the child.Footnote 60 In addition to receiving referrals from the court, the public guardian and trustee, upon referral “from anyone other than the court” may appoint a lawyer to represent a child with respect to all matters regarding the protection of the child.Footnote 61

In New Brunswick, the appointment of counsel is made by referral by the Court to the Minister or the Attorney General. Such appointment by either the Minister or the Attorney General seems to be discretionary. Note that although the Family Services ActFootnote 62 acknowledges the child’s right to be heard in any proceeding under that Act affecting a child, the right to appointment of counsel is limited to proceedings in respect of custody.Footnote 63 In these circumstances the court shall, if the Minister is not a party to the proceeding, advise the Minister of the proceeding and it is the Minister that may appoint counsel to “assist in the representation of the interests and concerns of the child”.Footnote 64 Where the Minister is a party and the court is of the view that counsel “should” represent the interests and concerns of the child, the court shall advise the Attorney General that counsel “should” be made available.Footnote 65 The use of the word “should” seems to give the Attorney General discretion to decide if counsel will be appointed.Footnote 66

In Ontario, a child “may have legal representation at any stage” in a child protection proceeding.Footnote 67 Although there are no explicit provisions in the Child and Family Services Act, authorizing the Office of the Children’s Lawyer (“OCL”) to act on its own initiative to represent a child in a protection proceeding (as there is in Alberta, discussed above), there is nothing in the legislation that seems to preclude such initiative. The legislation provides that where the court determines that legal representation is desirable to protect the interests of a child under the age of eighteen, it “shall” direct that legal representation be provided for the child.Footnote 68 The OCL has no discretion to refuse to represent the child in this instance. As noted above, if a parent is under the age of eighteen in a child protection proceeding, it is mandatory that the OCL represents that parent.Footnote 69 Noteworthy is the fact that the Child and Family Services Act provides that where the OCL is of the opinion that a child has a cause of action or claim because such child has suffered abuse, the OCL may commence proceedings on behalf of the child for recovery or damages or other compensation.Footnote 70

In the Yukon, in contrast to New Brunswick, Alberta and Saskatchewan, the appointment of legal counsel in protection proceedings is in the hands of the official guardian pursuant to the Child and Family Services Act.Footnote 71 The official guardian is also authorized by the Child and Family Services Act, if it believes that the child’s representation is best achieved by the appointment of someone other than legal counsel, to so appoint someone other than a lawyer to represent the child.Footnote 72

Not only are there discrepancies across the country as to who can appoint legal counsel to a child in a protection proceeding, there are remarkable differences as to the listed criteria to be considered prior to such an appointment being made. The legislation of Alberta, Nova Scotia, Prince Edward Island, Quebec, the Northwest Territories and Nunavut contains very limited direction concerning such criteria. Despite the narrow guidance provided for in the legislation of these jurisdictions there is a remarkable lack of consistency between them.

In Prince Edward Island, the child must be twelve years old and “apparently capable of understanding the circumstances”.Footnote 73 Whereas in Alberta, where the appointment of counsel is being considered by the court, the court may direct that a lawyer represent the child if it is satisfied “that the interests or views of the child would not be otherwise adequately represented”.Footnote 74 Where the appointment for counsel is made directly by the OCYA, without a court referral, the legislation only speaks to the particular types of cases where the OCYA can appoint legal counsel and is silent as to criteria to be considered.Footnote 75 In Quebec pursuant to the Youth Protection Act,Footnote 76 where the court establishes that the interests of the child are opposed to a parent, “it must see that an advocate is specifically assigned” to represent the child.Footnote 77 Similarly, in the Northwest Territories and Nunavut, the court shall ensure that counsel represents the child where it appears to the court that the interests of the child and that of the parents are in conflict.Footnote 78 The legislation in these two territories adds the criteria that it would be in the child’s best interest to have her own lawyer.Footnote 79 The latter is the only criteria provided in Nova Scotia for a child who is twelve years old or over and less than sixteen.Footnote 80

In contrast to the limited criteria noted above, the legislation from Manitoba, New Brunswick, Ontario, Saskatchewan and the Yukon provide more detailed direction as to the factors to be considered for the appointment of legal counsel for a child in a protection proceeding. However, once again, there is a lack of consistency between these jurisdictions in terms of such criteria. Even where there are similarities as to the factors to be taken into account, there are nuanced differences in language which impact how each factor might be understood or applied.

The one common criteria between these five jurisdictions is that there is a difference in views and/or interests between the child and the other parties to the proceeding. As noted above, there are nuanced differences as to how this is articulated in the legislation depending on the jurisdiction. The legislation in New Brunswick, Manitoba and Saskatchewan provide for a consideration of both the views and interests of the parties,Footnote 81 though in New Brunswick the term “concerns” is used instead of “views”.Footnote 82 In the Yukon, a consideration of any conflict of “interests” between the parties must be considered but the legislation is silent as to a consideration of a conflict between “views”.Footnote 83 For Ontario, consideration is to be given for the appointment of counsel to a child if there is a difference of “views” (the legislation is silent as to interests) and if the society proposed that the child be removed from a person’s care or be made a Crown Ward.Footnote 84 Notable is the fact that the legislation of all these jurisdictions does not define the terms “views” or “interests”.

As for the other criteria listed in the legislation that is to be considered before an appointment of legal counsel is made, there is little uniformity between these five jurisdictions. For example, only the legislation in Manitoba and Saskatchewan mandate a consideration of the capacity of the child to express her views to the court, the views of the child regarding separate representation,Footnote 85 and consideration of the nature of the hearing including the seriousness and complexity of the issues to be determined.Footnote 86 Manitoba’s legislation adds to this criterion, as to whether an agency is requesting the child be removed from the home.Footnote 87 With the exception of the latter, Ontario’s legislation does not provide for any of the criteria noted above.Footnote 88 Only Manitoba and Ontario require consideration as to whether or not the parents or guardians are present at the hearing.Footnote 89 In the Yukon, consideration must be given to the ability of the child to comprehend the proceeding and to any advice or recommendations from the judge and any party to the proceeding.Footnote 90 The legislation from the Yukon and New Brunswick, but not others, takes into account whether the parties to the proceeding will put or are putting before the court the relevant evidence regarding the interests of the child that can be reasonably adduced.Footnote 91

New Brunswick’s legislation includes the following factors that are not found in the other four jurisdictions, which may be particular to the unique procedure by which a child may have a lawyer appointed (detailed above). In particular, the court shall consider whether the child is twelve years old or older, whether the child’s wishes have been given consideration in determining her interests or concerns, whether the Minister has been able to identify the child’s interests and concerns, and whether counsel is better able to identify the child’s interests and concerns.Footnote 92

The flexibility provided to the court by the legislation in its consideration of listed criteria is striking. For example, in Manitoba the judge or master “shall consider all relevant factors including” those listed in The Child and Family Services Act.Footnote 93 Similarly, in New Brunswick, the court shall consider the listed factors and “any other factors the court considers relevant”.Footnote 94 In sharp contrast, in Alberta, the court may direct that the child be represented by a lawyer if the child, the guardian of the child, or a director requests the Court to do so and the court is satisfied that the interests or views of the child would not otherwise adequately be represented.Footnote 95 The legislation is silent as to other factors the court can consider or whether or not the court can take into account any other considerations.

Regarding the lawyer to be appointed, in most jurisdictions, the lawyer that is appointed is almost always an independent lawyer. Whether or not the independent lawyer is funded through legal aid is not clear on the face of the applicable legislation and beyond the scope of this paper. Only three provinces, namely Alberta, Ontario and the Northwest Territories, have separate government bodies that provide legal counsel to the child either from its own in-house department or from its designated roster of lawyers. In particular, these are the Legal Representation for Children and Youth through OCYA in Alberta and the Office of the Children’s Lawyer in Ontario and the Office of the Children’s Lawyer in the Northwest Territories.

ii. Family law

Although there is no custody or access legislation in the country that gives the child party status, a court can appoint a lawyer to a child in this context.Footnote 96 However, and as is the case in child protection, there is little consistency between provinces regarding the appointment of legal representation of children involved in domestic family law disputes. The legislation in Alberta, British Columbia, Ontario, Quebec and the Yukon provide for discretion for the appointment of legal counsel. Of these five jurisdictions, only the statutes of British Columbia, Quebec and the Yukon provide factors to be considered in the making of such appointment. The legislation of the remaining eight jurisdictions do not contain provisions authorizing the appointment of a lawyer for a child, although the legislation of six of these eight jurisdictions recognizes that the child might have a lawyer.

As noted above, the legislation of Alberta, British Columbia, Ontario, Quebec and the Yukon provide for the discretion to appoint legal counsel to a child in a family law dispute. Alberta’s legislation provides that “[t]he court may at any time appoint an individual to represent the interests of a child” in a proceeding under the Family Law Act.Footnote 97 The individual does not have to be a lawyer,Footnote 98 and there are no provisions regarding the payment of such an individual.  In contrast to the provisions in Alberta for the appointment of a lawyer in protection matters, there are no listed criteria in the legislation for the court to consider when making such appointment.

Similarly, in Ontario, there are no guidelines provided in the legislation for the making of such appointment in family disputes, whereas in the child protection context Ontario’s Child and Family Services Act provides a detailed list of factors for the court to consider. Authority to appoint a lawyer for the child in a family matter is found in the Courts of Justice Act and the Family Law Rules. In particular, courts may request, pursuant to the Courts of Justice Act, that the Office of the Children’s Lawyer (“OCL”) “act as the legal representative of a minor […] who is not a party to a proceeding.”Footnote 99 Ontario’s Family Law Rules are broader and state that “in a case that involves a child who is not a party, the court may authorize a lawyer (i.e. not just the OCL) to represent the child, and then the child has the rights of a party, unless the court orders otherwise.”Footnote 100 In contrast to child protection and property cases, the OCL is not required to provide such representation when a custody and access case is referred to it by the court.Footnote 101 Where the custody of or access to a child is before the court, the Children’s Lawyer can also, of its own initiative or on the request of a court or any other person, investigate and make recommendations to the court on these issuesFootnote 102 — though the Children’s Lawyer acting in such a capacity is not necessarily advocating for the child’s own views.

In Quebec and British Columbia, a lawyer may be appointed to represent a child involved in family law proceedings. Regarding criteria to be considered, the court in British Columbia may make such appointment at any time if the court is satisfied that the degree of conflict between the parties is so severe that it significantly impairs the capacity of the parties to act in the child’s best interest, and that such appointment is necessary to protect the child’s best interests.Footnote 103 In British Columbia, the legislation goes further and states that if the court appoints a lawyer for the child, “the court may allocate among the parties, or require one party alone to pay, the lawyer’s fees and disbursements.”Footnote 104 It would thus appear that in British Columbia, the parties themselves must have the means to pay the child’s lawyer.

Similarly, in Quebec, where the court ascertains that it is necessary for the safeguard of the interests of the minor that a lawyer be represented, the court may make any order that is necessary to ensure such representation.Footnote 105 The court in Quebec may also rule on the fees to be payable to the lawyer and who will be responsible for such payment.Footnote 106

In the Yukon, under the Children’s Law Act, the official guardian has “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.”Footnote 107 The Children’s Law Act provides for the most extensive list of criteria, as compared to any other jurisdiction, to be considered in the appointment of counsel to a child in domestic family law disputes.  Interestingly, the criteria to be considered are the same as in the child protection context.  They include consideration of recommendations from the judge, the ability of the child to comprehend the proceeding, whether the interests of the child conflict with the interests of any other party to the proceeding, and whether the parties are putting the relevant evidence with respect to the child’s interests before the court.Footnote 108 As in Alberta, the person appointed to represent the child can be, but does not have to be, a lawyer.Footnote 109

In Manitoba, New Brunswick, Newfoundland, Nova Scotia, the Northwest Territories, Nunavut, Prince Edward Island and Saskatchewan, the legislation governing family law disputes does not contain any provisions authorizing the appointment of legal counsel for a child. With the exception of Manitoba and New Brunswick, the legislation of the remaining six jurisdictions has provisions that acknowledge that the child might have legal counsel. For example, Saskatchewan’s Queens Bench Rules state that “[a] minor may commence, continue or defend a family law proceeding as if of the age of majority.”Footnote 110 Thus, a child with capacity may retain and instruct a lawyer where they are party to a family law proceeding. This is similar to the situation in Nova Scotia, where the Family Court Rules allow children to commence or defend family law proceedings without a litigation guardian unless the court orders otherwise. However there are no provisions relating to the appointment of counsel for children.Footnote 111

In a similar vein, legislation from Nunavut and the Northwest Territories acknowledges that a child might have a lawyer but does not contain provisions for such appointment. In both territories, for example, in applications involving custody, access, or guardianship, the court may interview the child to determine the views of the child, and legislation recognizes that “the child is entitled to be advised by and to have his or her counsel, if any, present during the interview.”Footnote 112

In Newfoundland and Labrador and Prince Edward Island, family law legislation mentions “counsel representing the child” — suggesting that a child may in fact have independent counsel — but contains no provisions regarding the appointment or payment of same.Footnote 113 However, in divorce actions in Prince Edward Island, the Director of Child Protection can motion the court, pursuant to that province’s rules of civil procedure, to designate a lawyer as a child advocate who “may intervene for the purpose of protecting the interest of the children concerned.”Footnote 114 Footnote 115 The legislation provides no guidance as to the scope of the child advocate’s role. Furthermore, and practically speaking, the last case in which a “child advocate” was appointed in Prince Edward Island was in 1997.Footnote 116

Presumably, where there are no provisions that allow for the appointment of counsel, the court, assuming it has such jurisdiction, will rely on its parens patriae legislation to appoint a lawyer for the child. This is the case in the Northwest Territories where the Supreme Court relies on such jurisdiction to appoint the Office of the Children’s Lawyer in custody and access issues.Footnote 117 There is a standard order used in this context which speaks to the role played by the NWT OCL when appointed to act in custody and access cases.Footnote 118

As noted above, Ontario appears to have the most developed system for providing legal representation to children involved in domestic family law disputes. Even so, the number of children who receive representation is only a small percentage of the total number of children involved in the family law system. Of the 9907 open files in 2014-2015, 25% were access/custody cases.Footnote 119 Footnote 120 In 2015, the OCL reported that it accepts approximately 65% of the referrals received from the court in the area of custody and access.Footnote 121

Mamo, Jaffe, and Chiodo, in a comprehensive 2007 study on Ontario’s unified family courts, reviewed a sampling of files from five different cities within Ontario. Of the 330 cases that involved children, the OCL was involved in only 9% of those cases.Footnote 122 According to Ontario’s OCL, in 2011/2012, its lawyers represented children in 1,338 new custody and access matters and 2,365 new child protection matters. Clinicians investigated 1,358 new cases and provided assistance to lawyers in 678 new matters. The OCL states that at any given time, it carries a steady volume of over 10,000 files, serving approximately 20,000 children.Footnote 123

The availability of resources has deep implications for the availability of counsel to children, even where the legislation provides for the discretion of such appointment. Semple notes that pre-1987, publicly funded investigations were mandatory in every divorce case involving children in Ontario. However, public funding was unable to keep pace with the increasing number of custody and access cases and now the OCL declines approximately half of the requests for its involvement in custody and access cases.Footnote 124 Savoury also observes costs of independent legal representation and assessments for children are prohibitively high. She notes that of the 3% of children who are independently represented, only a portion of those children is represented (at no cost to the family) by the OCL.Footnote 125

iii. Mental Health and Secure Treatment

The discrepancies between jurisdictions for the appointment of legal counsel for children are also evident in the area of mental health. Only in Ontario, where a child is subject to a secure treatment order under the Child and Family Services Act,Footnote 126 is such appointment mandatory. However in Ontario, like Alberta, the appointment of legal counsel for the child will differ depending on the legislation pursuant to which the child is confined to a mental health program. In both provinces, a child can be confined to either a secure treatment program under that province’s child protection legislation or a mental health program under its general mental health statutes and regulations. In Nova Scotia, though a child can be similarly placed pursuant to two types of legislation, access to legal counsel is the same under both statutes. Only Alberta, Ontario and Nova Scotia have secure treatment programs, which are “programs for the treatment of children with mental disorders, in which continuous restrictions are imposed on the liberty of the children.”Footnote 127 In all remaining jurisdictions, if a child is confined to a mental health program it will be under that jurisdiction’s general mental health legislation and access to legal counsel will be the same for an adult as it is for a child. The result is a noticeable difference either within a jurisdiction or between jurisdictions regarding the appointment of legal counsel to a child. At Appendix “C” and “D” of this paper, charts comparing the provisions regarding the appointment of counsel in the context of a secure treatment order and under general mental health legislation can be found.

In Alberta, a child can be confined to a mental health program under either of the Child, Youth and Family Enhancement ActFootnote 128 or the Mental Health Act.Footnote 129 The discretion to appoint a lawyer for a child who issubject to a secure services order under Division 4 of the Child, Youth and Family Enhancement ActFootnote 130 is in the hands of the court and the Office of the Child and Youth Advocate. Where the court makes a secure services order, the court is mandated under the legislation to provide a written statement to the child showing that the child may be represented by a lawyer at any application to the court, must provide the child with the address and telephone number of the Child and Youth Advocate and must provide the child’s guardian with the contact information of the nearest Legal Aid Society. Pursuant to section 112 of the Act, the Court may direct that a lawyer is appointed for a child but only if the child, the guardian of the child or the director requests the court to do so and only if the court is satisfied that the interests or views of the child would not be otherwise adequately represented.  If such referral is made, the Child and Youth Advocate is mandated to appoint a lawyer for the child.Footnote 131 The Child and Youth Advocate may, in the absence of a court order and on its own initiative, provide legal representation to the child.Footnote 132

In contrast, where a child is committed to a mental health facility under Alberta’s Mental Health Act,Footnote 133 there are no provisions specific to minors.  There are also no provisions which require that a patient be advised of the right to legal counsel, with the exception of a situation where the Patient Advocate, under the regulations, is in receipt of a complaint at which point the Patient Advocate is mandated to provide to the patient, “as far as it is reasonable”, information including how the patient may obtain legal counsel”.Footnote 134

Similarly, in Ontario, the right to counsel depends upon the Act under which the child is committed to a mental health facility. As noted above, if such commitment is made to a secure treatment facility under the Child and Family Services Act, the legislation mandates that a lawyer be provided for the child.Footnote 135 In contrast, under Ontario’s Mental Health Act, although there are provisions which specifically address the provision of legal counsel to minors, in contrast to all other jurisdictions in the country, the appointment of legal representation for the child is discretionary.Footnote 136 Wilson notes that the rights of children are better protected under the Child and Family Services Act, “but recourse to this statute in lieu of the more general Mental Health Act depends on the availability of resources within the particular child’s community”.Footnote 137 As the Child and Family Services Act only applies to designated “secure treatment program”, where such facilities are not available, the provisions of the Mental Health Act will necessarily apply.

Although, like Alberta and Ontario, Nova Scotia has provisions under its Children and Family Services Act for a child to be committed to a secure treatment program, the rights of a child as it relates to representation by counsel, do not appear to differ from those for general patients under Nova Scotia’s general mental health legislation. In Nova Scotia’s Children and Family Services Act, there are no provisions that mandate or provide discretion for the appointment of legal counsel to the childFootnote 138 though the legislation does require that the child be advised that she may be represented by counsel at any hearing and is to be provided with the address and phone number of the nearest legal aid office.Footnote 139 Similarly, under Nova Scotia’s Involuntary Psychiatric Treatment ActFootnote 140 and regulations,Footnote 141 patients must be advised about their right to legal counsel, but there are no provisions providing for such appointment.

In all other jurisdictions, when a child is confined to a mental health facility it will be pursuant to that jurisdiction’s general mental health legislation. An examination of the mental health legislation in each province reveals that, with the exception of Alberta, there is an obligation to notify a patient (and hence the child) about her right to counsel. Only British Columbia’s Mental Health Act has a specific provision regarding the obligation to notify a child of her right to legal counsel.Footnote 142 Only two jurisdictions, namely Ontario and the Yukon, have provisions in their general mental health legislation that specifically provide for the appointment of legal representation for a child. In both cases such appointment is discretionary. In particular, under Ontario’s Mental Health Act, if a patient who is less than sixteen years old and is party to a proceeding under the ActFootnote 143 does not have legal representation, the Consent and Capacity Board may direct the Children’s Lawyer to arrange for legal representation to be provided to the child, and the patient will be deemed to have the capacity to retain and instruct counsel.Footnote 144 In the Yukon, the “Minister may make available legal services or patient advisor services for persons who are detained as involuntary patients”.Footnote 145

Notably, six jurisdictions, though not child-specific, have provisions for the appointment of a mental health representative for patients. The range of service provided varies and it is unclear whether or not these advisors are or must be lawyers. These include the “Psychiatric Patient Advocate Services” and “Psychiatric Patient Advocates” in New BrunswickFootnote 146, the “Rights Advisor” in Newfoundland and Labrador,Footnote 147 Nova Scotia’s “Patient Advisor Service”,Footnote 148 Ontario’s “Rights Adviser”,Footnote 149 the “official representative” in Saskatchewan,Footnote 150 and “patient advisor services” in the Yukon.Footnote 151 The legislation in Alberta, British Columbia, Manitoba, the Northwest Territories, Nunavut, and Prince Edward Island do not appear to provide for such patient advocate services through their legislation. 

iv. Civil Proceedings and Estates

As noted above, in civil proceedings throughout the country, children are generally required to act through a litigation guardian. For example the Alberta Rules of Court provide that an individual under the age of eighteen “must have a litigation representative to bring or defend an action or to continue or to participate in an action, or for an action be brought or to be continued against them.”Footnote 152 The Rules of the Supreme Court in Newfoundland and Labrador mandate that a person under disability (which would include a minor) “may not commence, defend, intervene or appear in any proceeding except by his or her guardian ad litem.”Footnote 153 Provincial legislation mandates that a lawyer represent the litigation guardian who acts for a minor.Footnote 154 Although the child is a party to the proceeding, it is the litigation guardian who instructs the lawyer. For example, in New Brunswick, a “litigation guardian or committee shall act through a solicitor and shall instruct that solicitor in the conduct of the proceeding”.Footnote 155 In the Northwest Territories “a party to a proceeding who is under disability or acts in a representative capacity shall be represented by a solicitor”.Footnote 156

Given the important role of the litigation guardian in advancing and defending claims concerning a minor, a comparative study of legislation pursuant to which a litigation guardian is appointed and acts would be an extremely useful exercise to determine to what extent children’s rights to representation are being properly advanced in Canada through this medium. Such inquiry would necessarily address the following questions: Under what statute are the provisions for the appointment of a litigation guardian found? Is the term minor used interchangeably with the term “person under disability”? What is the terminology used to describe the litigation guardian (litigation representative, litigation guardian, tutor, guardian ad litem?)?  Who is authorized to act as litigation guardian? What is the procedure for appointment (self-appointed, court-appointed, court-approved) of a litigation guardian? Under what circumstances is a lawyer appointed as litigation guardian? How do the role and duties of a lawyer acting as litigation representative differ from the role of lawyer representing a litigation guardian? What is the scope of duties of the litigation guardian? How does the legislation address any duty of the litigation guardian to act in the child’s best interest? Is the scope of participation of a litigation guardian defined by statute? If yes, what is the extent of participation of the litigation guardian in a proceeding (Can the litigation guardian do anything that another party in the proceeding would be authorized to do? Can the litigation guardian be examined for discovery? Can the litigation guardian submit evidence via affidavit? What are the obligations of disclosure?)? What is the extent of participation of the child in a proceeding when represented by a litigation guardian? What is the authority of the court as to the costs of the litigation guardian? If the legislation is silent as to costs, how are the costs of the litigation guardian addressed? How does the cost of the litigation guardian impact a child’s right or access to the court system? Are there guidelines for the role and responsibilities of the litigation guardian?

Any discussion and analysis of the appointment, role and duties of litigation guardian would necessarily include an analysis of the Public Guardian and Trustee (“PGT”).  Each jurisdiction has legislation that provides for the appointment of a PGT and, in the case of minors, the role of the PGT is to protect their legal and financial interests. The questions above would necessarily apply to such analysis and would also include an inquiry as to whether or not the PGT is required to act as litigation guardian or as legal counsel, and how the roles and responsibilities differ depending on such role.

A brief discussion of the role of Ontario’s OCL is worthwhile given its mandate to provide children with representation in not only child protection and custody and access disputes, but in the area of estates and civil litigation as well. This differs remarkably from the OCYA in Alberta, which is limited to representing children in matters under the Child, Youth and Family Enhancement Act and the Protection of Sexually Exploited Children Act, and the Office of the Children’s Lawyer in the Northwest Territories, which represents children in protection matters and custody and access disputes.

As is the case in child protection, when appointed by the court or when required by legislation in property cases, the OCL in Ontario must provide such legal representation.Footnote 157 As of July 2015, of the 23 in-house lawyers at the OCL, 11 are Property Rights lawyers (the remaining 12 are Personal Rights Lawyers).Footnote 158 Of the 9907 open files in 2014-2015, 20% of these were property rights cases, and 8% were minor’s funds cases.Footnote 159 In Ontario, the OCL represents minors who are involved in estate litigation, including applications by trustees for directions, applications for dependent’s relief, applications for the removal of trustees, will challenges/interpretations, and applications involving the sale or guardianship of a minor’s property.Footnote 160

The OCL also acts for minors in civil litigation cases as follows: acts as litigation guardian for a minor plaintiff or defendant where there is no other person willing and able to act; protects a minor’s interest in a proceeding where there is a litigation guardian other than the Children’s Lawyer; reviews minors’ settlements and makes recommendations to the court when directed by the court; and represents a minor’s interest in ensuring that settlement funds are appropriately managed on behalf of a minor.Footnote 161

Date modified: