Legal Representation of Children in Canada

3. Legal Representation of Children in Canada: Parens Patriae Jurisdiction

If legislation does not provide for the appointment of independent legal representation for a child, or if existing statutory requirements are not met, superior courts may resort to their parens patriae jurisdiction to appoint counsel for a child. This jurisdiction empowers the court to “act in the stead of a parent for the protection of a child.”Footnote 162 However, as noted in Kerfoot v. Pritchard, “[i]t is in rare circumstances that the court will exercise its parens patriae jurisdiction to appoint separate legal counsel for a child.”Footnote 163 As there are many circumstances where legislation does not provide for the appointment of counsel for the child, the limited circumstances in which a child is provided counsel through the court’s exercise of its parens patriae jurisdiction, are noteworthy.

Notably, not all courts have parens patriae jurisdiction. Only courts with inherent authority of the Chancery Courts can exercise such jurisdiction. This necessarily includes judges of the superior courts, for example. Provincial courts and provincial appellate courts, as statutory courts, do not have inherent jurisdiction to use parens patriae power to appoint counsel for a child.Footnote 164

Because of its role of protecting the vulnerable, there is no clearly defined limit to the exercise of parens patriae jurisdiction. The case most frequently referred to regarding this jurisdiction is the unanimous Supreme Court of Canada decision of E. (Mrs.) v. Eve,Footnote 165 where the Court reviewed the history and application of parens patriae jurisdiction, explaining:

The parens patriae jurisdiction is, as I have said, founded on necessity, namely the need to act for the protection of those who cannot care for themselves. The courts have frequently stated that it is to be exercised in the “best interest” of the protected person, or again, for his or her “benefit” or “welfare”.

The situations under which it can be exercised are legion; the jurisdiction cannot be defined in that sense. As Lord MacDermott put it in J. v. C., [1970] A.C. 668, at p. 703, the authorities are not consistent and there are many twists and turns, but they have inexorably “moved towards a broader discretion, under the impact of changing social conditions and the weight of opinion … .” In other words, the categories under which the jurisdiction can be exercised are never closed. Thus I agree with Latey J. in Re X, supra, at p. 699, that the jurisdiction is of a very broad nature, and that it can be invoked in such matters as custody, protection of property, health problems, religious upbringing and protection against harmful associations. This list, as he notes, is not exhaustive.

Though the scope or sphere of operation of the parens patriae jurisdiction may be unlimited, it by no means follows that the discretion to exercise it is unlimited. It must be exercised in accordance with its underlying principle. Simply put, the discretion is to do what is necessary for the protection of the person for whose benefit it is exercised …Footnote 166

The Alberta Court of Appeal, in Puszczak v. Puszczak,Footnote 167 considered a chambers’ judge’s decision to exercise his parens patriae jurisdiction and appoint a lawyer for a child who was the subject of a custody and access dispute. The court cited a previous decision of the Ontario Court of AppealFootnote 168 which held that where the rights and best interests of a child may not be adequately represented by his or her parents, it may be appropriate to appoint a legal representative for the child. It also cited with approval an Australian decision suggesting that independent representation for the child is advisable when:

  1. there are allegations of child abuse,
  2. there is apparently intractable conflict between the parents,
  3. the child is apparently alienated from one or both parents,
  4. there are real issues of cultural or religious difference affecting the child,
  5. the sexual preferences of either or both of the parents or some other person having significant contact with the child are likely to impinge on the child's welfare,
  6. the conduct of either or both of the parents or some other person having significant contact with the child is alleged to be anti-social to the extent that it seriously impinges on the child's welfare,
  7. there are issues of significant medical, psychiatric or psychological illness or personality disorder in relation to either party or a child or other persons having significant contact with the child;
  8. on the material filed by the parents, neither seems a suitable custodian,
  9. a child of mature years is expressing strong views, the giving of effect to which would involve changing a long standing custodial arrangement or a complete denial of access to one parent,
  10. one of the parties proposes that the child will either be permanently removed from the jurisdiction or permanently removed to such a place within the jurisdiction as to greatly restrict or for all practical purposes exclude the other party from the possibility of access to the child,
  11. it is proposed to separate siblings,
  12. the case involves custody and none of the parties is legally represented, and
  13. the case involves child welfare (in particular, medical treatment) and the child's interests are not adequately represented by one of the parties.Footnote 169

Ultimately, the Court of Appeal in Puszczak overturned the chambers’ judge’s decision to appoint counsel for the child. It did so on the grounds that the chambers’ judge had not fully considered the appropriateness of appointing counsel for the child. It also questioned the perceived independence of the particular lawyer appointed by the court, who had previously been retained by the father and who had become involved in the case without the mother’s knowledge or consent.

In Bhajan v. Bhajan,Footnote 170 a Superior Court judge ordered the Office of the Children's Lawyer ("OCL") to become involved in the proceedings, exercising his parens patriae jurisdiction instead of requesting the OCL to provide the particular services under ss. 89(3.1) and 112 of the Courts of Justice Act. This decision was appealed to the Ontario Court of Appeal, which joined the case with five other similar appeals, all from orders of the same Superior Court judge. All of the appeals were allowed, with the Court stating:

Assuming, without deciding, that Superior Court judges can, in the appropriate circumstances, exercise their parens patriae jurisdiction to order the OCL to act, that jurisdiction ought not to have been exercised in these six appeals. The Superior Court judge ought to have respected the structure of ss. 89(3.1) and 112 in the CJA, which give the OCL discretion in considering requests for their involvement. He ought not to have circumvented the existing statutory structure for engaging the OCL. Prior to exercising his parens patriae jurisdiction to make an order, it was incumbent on the Superior Court judge to consider and avail himself of the other available avenues for assistance that were responsive to the specific factual problems before him.Footnote 171

In Wagner v. Melton,Footnote 172 the Northwest Territories Supreme Court noted that before exercising its parens patriae jurisdiction to appoint legal representation for a child, courts must consider whether doing so would be in the best interests of the child and whether the child is capable of providing instructions to a lawyer. The Court noted that the discretion to appoint counsel should be used sparingly and only where the adult litigants cannot adequately represent the child's views to the court.Footnote 173

In M. B.-W. v R.Q,Footnote 174 the Newfoundland and Labrador Court of Appeal recognized that the appointment of legal counsel for the child in a custody and access case is usually limited to high conflict situations. However, the Court emphasized the importance of the exercise of a court’s parens patriae jurisdiction to appoint counsel to a child and held that it was appropriate for the exercise of such jurisdiction at the case management stage:

Even more fundamentally, however, the making of a child representation order is integral to the exercise of the parens patriae jurisdiction of the court. That is a jurisdiction that is not to be cut down or restricted unless there is clear legislative intent to do so [internal citations omitted]

The issue of whether a child should have his or her own legal representation can arise at virtually any point in the litigation. Given the emphasis on ensuring that the best interests of the child are protected, there is no reason in principle why the issue could not be appropriately dealt with at any stage in the process, including at case management or even at a trial readiness inquiry just prior to trial. Clearly, if the circumstances are such that protection of the child’s interests requires appointment of separate counsel even just before trial, that is something that can and should be addressed. I see no reason, therefore, why the necessity of such an appointment could not be raised during case management or trial readiness discussions. It is integral to the process of managing the case and getting it ready for trial.

It has been suggested that the process of case management is not appropriate to determining the issue of legal representation of a child and that such an issue should only be dealt with on a formal application brought in applications court outside of the case management process. I disagree.  The prime imperative of ensuring that the best interests of a child, both procedurally and substantively, are advanced dictates that the courts can and should intervene at any stage of the process to appoint counsel for a child if such a step is warranted. It is true, of course, that considerations of fairness to all parties may, in most cases, require the filing of further documentation and the conduct of a separate hearing to determine the question.  While it may usually be preferable that the issue of legal representation for a child be dealt with in a separate hearing, the manner of dealing with the issues and the exact procedure to be followed must, in the last analysis, be determined by the court when the issue arises as the exigencies of the particular case dictate. As long as the matter can be dealt with fairly to all concerned, the issue should be dealt with whenever it arises and in whatever forum that is engaged at the time. The fact that in most cases it might be better to deal with the matter outside of the case management process and upon a separate application does not mean that there is no jurisdiction to deal with it in an appropriate case as part of the case management or trial readiness process.Footnote 175

Despite the comments above, resorting to the court’s parens patriae jurisdiction is a last resort for many courts. The appointment of legal counsel for a child via parens patriae is fraught with challenges, including the question of when such an order should be made, who will pay for the child’s counsel, and what the proper role of counsel will be.Footnote 176 In Kalaserk v. Nelson,Footnote 177 the Northwest Territories Supreme Court explained that clear statutory guidelines for the legal representation of children are preferred over the much less defined parens patriae jurisdiction:

The lack of an express appointment power in the [Northwest Territories’] Children's Law Act means that a judge and the parties are left to rely on the court's parens patriae jurisdiction to appoint legal representation for a child. While this has been done in the past it would be preferable to have the parameters of such appointment power delineated expressly so that the role of the child's counsel is clearly understood. As Professor Christine Davies notes, independent legal representation for children is now seen as the favoured tool for relaying the child's views. But there are still differing opinions as to the role to be adopted by the legal representative, when such an appointment is appropriate, what skills and training a child's representative should have, and who should pay for the representation: see Davies, op.cit., at 164-165. There are public policy, legal and financial implications to these questions and, in my respectful opinion, it may be preferable to have these points addressed in legislation, after debate by the public's political representatives, as opposed to discretionary direction by judges in isolated cases.Footnote 178

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