When it comes to custody battles over children is it in the best interest of the child for parents to be so embattled over their offspring?
This is what courts all over Canada have mulled over for decades.
Family law is in the jurisdiction of the provinces and territories; often they will adapt similar rules or laws.
When it comes to children having their own lawyer, in cases that affect custody and access, many provinces and territories allow children to have their own legal representation. The law allows for it because the most important principle in these proceedings is the best interest of the child.
Some jurisdictions allow the lawyer to assume some court powers and make decisions that are binding on the parties. Other jurisdictions see the children’s lawyer more as an advocate for the child.
How do lawyers represent children in different Canadian jurisdictions? Let’s have a look at a few:
In Ontario, the Child and Family Services Act talks about the right of children to be represented by their own lawyer.
s. 38 of the act states:
38. (1) A child may have legal representation at any stage in a proceeding under this Part.
(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.
(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.
Usually a court determines whether a child needs the Office of the Children’s Lawyer to step in for difficult cases.
The office of the Children’s Lawyer’s role is dual;
- It fulfills the role of children’s representative; and
- It also fulfills somewhat of a social worker role through investigation and assessment of cases.
So, in Ontario, yes the child does have a right to a lawyer. In cases of custody and access the child has the right to ask for the Office of the Children’s lawyer to get involved. That doesn’t necessarily mean it will get involved though.
When it comes to child custody cases in Quebec, children are allowed to have their own lawyer in these three scenarios:
- The child is mature enough and has reached a certain age, and more importantly, the child wants to tell a judge of his or her views. In these cases it is in the child’s best interest to have their own lawyer representing them;
- If the child’s interests need to be protected separately from the parents, then the child has the right to their own lawyer;
- The parents are too involved in their own problems and are not aware of the child’s wants and needs, or they cannot impartially decide what is best for the child.
As in the case with Ontario, in Quebec, too a child can ask for their own lawyer to represent their interest in a custody case. That doesn’t necessarily mean one will be assigned and the request should fit into the above framework.
Judges have enough discretion to appoint a lawyer on the child’s behalf if the judge believes the child’s need a lawyer to protect his or her interests. In addition, if one of the parents believes the child needs her or his own lawyer, then they can request this of the court.
Legal Representation for Children in Divorce, Custody and Access Proceedings
When Children Can Have Their Own Lawyers Quebec