Legal Representation of Children in Canada
4. Children as Interveners
While there are many cases in which organizations have been granted leave to intervene in litigation so as to advocate a position believed to be in the interests of children generally,Footnote 179 there is only one case in Canada where a child himself was granted leave to intervene as a party. That case is B. (S.G.) v. L. (S.J.),Footnote 180 which involved a motion by the child for leave to intervene as an added party to the custody and access appeal brought by his father. The mother opposed the motion. The Ontario Court of Appeal noted that:
A motion of this kind is highly unusual in a custody dispute. Typically, if the child is to be heard, an application would be made for the appointment of the Children's Lawyer to represent the child. That was not done here, and we can only presume that the reason was tactical.Footnote 181
The Court cited the relevant rule of civil procedure governing leave to intervene, which states that a party may be added as an intervener if (1) they have an interest in the subject matter of the proceeding; (2) they may be adversely affected by a judgment in the proceedings; or (3) 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.
The Court noted that the child met all of the requirements of the rule, any one of which would be sufficient. The Court pointed out that the child obviously had an interest in his own custody. He could be adversely impacted by the judgment. The questions of fact and law in the proceeding were common to his parents and him. The Court also pointed out that it had the discretion to refuse to make the intervention order despite the above, and opined that “[o]rdinarily, in a custody case we would think an order permitting a child who is the subject of the dispute to be added as a party would rarely be made.”Footnote 182
However, in this particular case, the Court decided to grant the child’s motion to be added as an intervener, citing the child’s age (sixteen) and the significant impact that the custodial order would have on his life. The Court cited no other decisions where a child has been granted leave to intervene and there have been no subsequent decisions relying on this case where a child has been granted leave to intervene.
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