2.1 Uncertainty Regarding the Appointment of Counsel for Children in Divorce, Custody and Access Proceedings

Legal representation for children in family law proceedings is a relatively new concept.  As children began to be perceived as persons with independent rights and interests in the 1970s and 1980s, the notion that young persons should be afforded legal representation to assert those rights and interests became a subject of debate.  In the past few decades, only a small number of children in Canada have had the opportunity to be represented by counsel in custody and access cases.[84]

Statements from the courts, law reform commission reports, documents from law societies and articles in academic journals are responsible for altering the view that children do not require legal counsel to articulate their wishes in divorce and custody proceedings.  For example in the U.S. decision Wendland v. Wendland,[85] the court stated that the children "are not to be buffeted around as mere chattels in a divorce controversy, but rather to be treated as interested and affected parties …" Similarly, the Supreme Court of Canada held in Racine and Racine  v. Woods[86] that "a child is not a chattel in which its parents have a proprietary interest…"

In 1974, the Law Reform Commission of Canada released a paper that stated that where the interests of a child will be directly or indirectly affected by a court proceeding, consideration should be given to the appointment of independent legal counsel to represent the child.[87]  Particular emphasis was placed on contested custody cases as legal proceedings in which "the interests of the child may require separate legal representation."[88]  The Law Reform Commission took the position that neither the judge, the child's parents, nor counsel for the child's parents should act as an advocate for the child in these matters.  It proposed that independent legal representation be provided to the child and that child's counsel be accorded the same rights and privileges as lawyers representing the adult parties in the family law proceedings.  Similar recommendations have been made by law reform bodies to the governments of British Columbia, Quebec and Alberta.[89]

Despite reports released on the virtues of legal representation of children in family law proceedings, the appropriate role of a child's lawyer in custody and access disputes remains controversial.[90]  Issues that remain unresolved include the following:[91]

  1. legal proceedings involve counsel other than those representing the adults/parents in cases of custody and access?
  2. If counsel for the child is to be appointed, should it be available only in exceptional circumstances, or should all children of divorcing or separating parents have access to legal representation?
  3. Should private counsel for the child be appointed or should a government lawyer represent the child?
  4. What is the precise role of the child's lawyer-to advocate the child's preferences and wishes, to put forth the child's best interests, or to assist the court in collecting evidence pertaining to the issues of custody and access?

The judiciary in this country has offered little guidance on the subject of child representation in family law cases.  The decisions rendered on this issue have been conflicting and, as a result, have exacerbated the confusion surrounding the circumstances in which a lawyer should be appointed for the child, as well as the precise function of child's counsel.  As one observer writes:[92]

There have been fractional divides in Canada with respect to the proper role of counsel who represent a child in custody and access proceedings.  Moreover, wavering judicial interpretations for the role of counsel has provided ambiguous and inconsistent precedence.

Another lawyer states:[93]

Compounding the difficulty is the environment in which decisions are made:  one that combines broad discretion with vague criteria, as well as a hybrid of the adversarial and inquisitorial processes.

Some courts have taken the position that separate legal representation for a child in a custody dispute is inappropriate as a general practice.  The Manitoba Court of Appeal stated in Lavitch  v. Lavitch,[94] the general rule is that there should not be separate representation of children in custody cases.  Mr. Justice Reid in Rowe v. Rowe[95] wrote the following in a divorce case before the Ontario Supreme Court:

Based on my experience in this case, I doubt the desirability of having children represented by counsel or advised by "their own" solicitor as a practice.  There may well be cases wherein the circumstances a trial judge considers it desirable for the children to have separate representation at trial.  If that is so, the office of the official guardian would appear to be available and can be called upon at that point.  Earlier involvement of solicitors for children can, I think, cause more harm than good.

The court in Laszlo v. Laszlo[96] refused to appoint counsel for the children on the grounds that the lawyers for the adult parties were capable of placing before the court the necessary evidence for an informed custody determination.

In other decisions, courts have been prepared to appoint counsel for children in exceptional circumstances.  As stated in Bonenfant v. Bonenfant:[97]

Unless and until the appropriate legislature enacts otherwise, the court should not as a routine matter impose upon the parties in a custody proceeding the compilation, expense, and enlargement of trial proceedings which must almost inevitably result from the appointment of additional counsel.  Such a step should not be taken unless it is made to appear that justice is otherwise unlikely to be achieved and that there is substantial risk that the court will be unable to carry out its duty to make a decision in the best interests of the children if the appointment is not made.

In some family proceedings, children have been permitted to have legal representation if it can be established that the children possess different interests than their parents.  In both Lavitch  v. Lavitch [98] and Morris and Morris v. Mitchell,[99] the courts held that separate legal representation was not appropriate unless it could be demonstrated that either the interests of the child and the parent were not congruent, or that the child had special interests.

Other courts have denounced this approach.  In Novic v. Novic,[100] for example, the Ontario Court of Appeal stated that it was not necessary for the child to possess interests separate from either or both parties in order to secure legal representation.  A legitimate ground for appointment of counsel is to ensure that the views and preferences of the child are adequately conveyed to judicial decision-makers.[101]  Similarly, in the 1997 decision Kerton v. Kerton,[102] a lawyer was appointed for a child in a supervised access dispute.  The court stated that the function of counsel was to convey the views of the child and to prevent the parties from interpreting the child's wishes and from attempting to remove her from the conflict.

Some judges have stated that separate legal representation should be provided to the child if it is the court's opinion that such appointment would assist it in ascertaining the best interests of the child.  Such an approach was taken in Reid v. Reid [103] and Ross v. Britton.[104]

In this section, the jurisdiction to appoint lawyers for children in divorce, custody and access proceedings will be described.  A discussion will be provided of the three traditional models of legal representation as well as the advantages and disadvantages of each of these approaches.  The capacity of children to instruct counsel will also be explored.  In addition, the question of whether the rules which govern solicitor/client privilege for adults should be applied with the same rigour for children represented by counsel will be canvassed.  The selection, professional training and sources of remuneration for children's counsel will be discussed, as well as the prospect of developing a code of ethics for lawyers who represent children.

2.2  Functions of the Child's Lawyer in Family Law Cases

The important functions performed by counsel for children deserve discussion.  A fundamental role of a legal representative is to ensure that the child's views and wishes are placed before the court.[105]  As an observer notes:[106]

It is false to assume that the evidence adduced by the parents and the points of view presented by them are exhaustive and accurate.  Very often the child's perspective is far different from that of either of his/her parents and far more realistic as to their strengths and weaknesses.  It must follow that counsel for the child is neither an extraneous role in the proceedings nor a mere subordinate to counsel for the parties.

It is also asserted that parents, disappointed or angry at their failed marriage, may not be able to adequately take into account their children's needs and interests.

The presence of independent counsel for children in custody disputes can be a "powerful catalyst" for settling cases and avoiding trials.[107]  A settlement generally results in less trauma for both the children and the parents than a highly contested court case.[108]  Counsel for the child may be perceived by the parents as a neutral party which may have the effect of reducing the "win/lose" mentality of the litigants.[109]  The parents may also be less inclined "to use their children as weapons in their personal conflict" and may be more willing to fully consider their children's needs, views and interests.[110]

Another important function of counsel is to protect the child during the course of the legal proceedings.  Counsel can ensure that the necessary measures are taken to expedite the proceedings and to accommodate children in the court process.  The reassurance of counsel on a child in the midst of a family breakdown cannot be overestimated.[111]  The child can freely express his or her concerns, anxieties and views to an impartial and unbiased person.  As a result, the child is protected as well as given a sense of empowerment, particularly if the child believes that his or her counsel may have an influence on the outcome of the dispute.

2.3 Jurisdiction to Appoint Independent Counsel for Children

2.3.1 Parens Patriae Jurisdiction of Superior Courts

The genesis of independent representation for children is the parens patriae jurisdiction of the courts.[112]  Parens patriae refers to the role of the state as guardian of persons under a legal disability.  As stated by Galligan J. in Reid v. Reid,[113] a court of equity has inherent power representing the Sovereign in its capacity as parens patriae to protect the rights of infants.  Courts have appointed counsel for children in custody proceedings under the parens patriae jurisdiction.

It is important to note, however, that only judges of Superior Courts have the parens patriae power to appoint counsel for children in custody and other legal proceedings.  As Judge Bean commented in Catholic Children's Aid Society of Metropolitan Toronto v. C.M. and D.L.,[114] there is no inherent jurisdiction in the Ontario Court Provincial Division to appoint counsel to represent the rights of children.  The Provincial Court is not a court of equity and does not have parens patriae jurisdiction.  The provincial courts have the authority to provide such representation only in circumstances in which the power to appoint counsel for children is specified in legislation.[115]

2.3.2 Statutory Power to Appoint Counsel for Children in Family Law Proceedings

Although many provinces have enacted legislation which permits counsel to be appointed for children in family law proceedings, the precise role of the lawyer is not delineated.  Moreover, the appointment of counsel is within the discretion of the court or government official.  For example, section 2 of the Family Relations Act of British Columbia[116] states that a family advocate may be appointed by the Attorney General to act as counsel "for the interests and welfare of the child" in proceedings involving the custody of, maintenance for, or access to the child.  Section 24 of the Act states that the judge must consider the views of the child "if appropriate" on issues of custody, access and guardianship.[117]  The Manitoba Family Maintenance Act [118] states the following:

When the court is satisfied that a child is able to understand the nature of the proceedings and the court considers that it would not be harmful to the child, the court may consider the views and preferences of the child (emphasis added).

According to the Children's Law Reform Act in Ontario[119]

24 (2)  In determining the best interests of a child for the purposes of an application under this Part in respect of custody of or access to a child, a court shall consider all the needs and circumstances of the child including,

  (b)  the views and preferences of the child, where such views and preferences can reasonably be ascertained

In Ontario, the Office of the Children's Lawyer has the authority to represent children in family law proceedings.  The Children's Lawyer is an independent Crown Law Office appointed by the Lieutenant Governor in Council on the recommendation of the Attorney General to represent children within the administration of justice.[120]  Pursuant to section 89(3) of the Courts of Justice Act,[121] the court can request that the Children's Lawyer represent the interests of the child in a custody and access dispute.  Section 112(1) of the Courts of Justice Act states:[122]

In a proceeding under the Divorce Act (Canada) or the Children's Law Reform Act in which a question concerning custody of or access to a child is before the court, the Children's Lawyer may cause an investigation to be made and may report and make recommendations to the court on all matters concerning custody of or access to the child and the child's support and education.

The Office of the Children's Lawyer will accept judicial referrals in custody and access disputes where the representation of the child will provide a meaningful contribution to the resolution of the matter and protect the child's interests in the proceedings.[123]

This brief review of Canadian legislation demonstrates that the child in divorce, custody and access proceedings, unlike criminal cases, does not have an automatic right to independent counsel.  It is the court or government officials who have the discretion to decide if the child will be afforded legal representation in a custody or access dispute.  Moreover, the precise role of counsel in such proceedings is ambiguous.  Mamo states that the confusion surrounding the function of counsel is the reason that "independent counsel has not succeeded in procuring its intended purpose of affording a child input into a proceeding that will affect the balance of the life of the child."[124]  He further states:[125]

… the institutionalization of independent counsel for children has not emancipated children from traditional paternalism, hidden in the legal process, which tends to muffle or veto the preferences of the child.  Children remain hapless concomitants to the unfettered discretion of both counsel and the courts.

An examination will now be undertaken of the different models of legal representation for children.

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