Voice of the Child in Court Proceedings
Services Available across Canada
In child protection matters, counsel is appointed with the help of the Department of Health / Social Services, but a child must be over the age of twelve in order to have this assistance. Otherwise, there appear to be few services available and almost no assessments are done in non-child protection custody and access matters.
In custody cases, children’s views generally are communicated to the Court by way of assessments. Assessments can be ordered and requested but usually, when requested, they are paid for by the parties themselves. There is some limited legal aid assistance and it is possible that counsel may be provided under subsection 7A of the Family Services Act. Subsection 6(4) of the Family Services Act allows a child the right to be heard, either on his or her own or through a parent or another responsible spokesperson. For further discussion on this, I refer the reader to the Burns, Goldberg article noted above. The turn-around time for assessments can be anywhere from four to six months. In child protection cases, the Court can appoint a lawyer for the child or a guardian ad litem if the child cannot instruct counsel.
Here in Nova Scotia, the Children and Family Services Act provides for counsel or a guardian ad litem if a child is unable to instruct counsel in child welfare proceedings. In non-child welfare proceedings however, counsel is rarely appointed although I expect the Supreme Court parens patriae jurisdiction would allow for this, if a Court chose to do so. In some circumstances, limited legal representation is available from legal aid offices.
In custody and access cases, children’s views are generally brought forward by way of assessments. Assessments are referred through the Supreme Court (Family Division) or the Supreme Court and are cost shared with the Department of Justice. Parents contribute on a sliding scale based on their income and they are exempt from making payment where their yearly income is below $20,000.00. The turn around time is generally six to eight weeks and the usefulness of the assessment depends on the skill of the given assessor.
It should also be noted that Nova Scotia has a unified Court which combines the jurisdictions of the provincial court (unmarried couples and separated, but not divorced, married couples) and the superior court (the Divorce Act and property matters) in only two locations: the Halifax Regional Municipality and the Cape Breton Regional Municipality . However, assessments are generally available in all other areas that are serviced by a local Family Court.
Newfoundland and Labrador
Newfoundland and Labrador’s legislation relating to child welfare is similar to Nova Scotia’s. There is a unified Court system in St. John’s that has jurisdiction over child welfare. Subsection 71(2) of the Children’s Law Act enables a judge to interview a child to ascertain the child’s preferences and subsection 71(4) of the Act enables the child to be advised by and to have counsel present during the judicial interview. As far as I know, this practice only exists in St. John’s.
In child welfare proceedings, legal aid is available to children, but the service is rarely used. In the last year or so, only forty to fifty legal aid certificates were used, even though there were some four hundred children in care.
For custody and access disputes that involve no element of child welfare, legal aid has taken the view that children are not parties and therefore legal assistance is not made available to children. This is due, in no small measure, to the recent significant budget cuts that legal aid in British Columbia suffered. The independent Child’s Advocate Office closed but there are Family Justice counsellors who occasionally prepare Custody and Access Reports, which is generally how input is obtained from children. There are otherwise few services available for representing children outside of child welfare proceedings.
There is, however, an interesting pilot project in Kelowna that provides limited assistance to ensure a child’s wishes are before the Court by providing a one time report fairly early in the proceeding.
There used to be an amicus curiae program available in Alberta but this no longer exists. There are provisions for appointment of counsel in child welfare matters but there is no legislation that provides for child representation in custody/access cases. The situation is under review and the recent decision of the Alberta Court of Appeal in Puszczak limits a parent’s right to independently obtain counsel or representation for a child.
Article 34 of the Civil Code requires that the child be offered the opportunity to be heard, if appropriate. Essentially, as soon as the child says he or she wants to be heard, a lawyer is appointed, regardless of the matter. The service might be paid for by legal aid, depending on the circumstances.
Assessments are also commonly introduced in Court. Again, for further discussion I would refer the reader to the Schirm paper.
Prince Edward Island
There is no statutory provision in Prince Edward Island that provides for the appointment of child’s counsel in custody and access cases.
In custody and access cases, a child’s wishes may be put before the Court through an assessment report prepared by Family Conciliation, a branch of Manitoba’s Department of Family Services and Housing. This service has been available for over twenty years and is offered at no cost to the parties. Family Conciliation also provides focused assessment reports in situations where there is a single major issue to resolve. These assessment reports can be completed much sooner than a traditional assessment. In addition, Family Conciliation provides a brief consultation service to the Court to address the wishes or concerns of children aged 11-16 years. In these situations, a Family Conciliation Counsellor can be accessed in a very short timeframe and provide the Court with a short written response.
In child protection situations, children aged 12 and over must be served with notice of a child protection proceeding and be brought to Court so that their views can be canvassed and the issue of independent legal representation can be addressed. The Child and Family Services Act (S.M. 1985-86, c. 8) allows the Court to order that legal counsel be appointed to represent the interests of a child of any age and also provides that where the child is 12 or over, the Court may order that the child have the right to instruct counsel. Legal Aid Manitoba will provide counsel for the child in these child protection situations
Other ways to ensure that a child’s voice is heard are being considered by a multi-disciplinary sub-committee which was formed following a symposium on the 20th anniversary of Manitoba’s Unified Family Court.
Section 168 of the Children’s Act in Yukon grants the child’s official guardian the exclusive right to determine whether a child in agency care or alleged to be in need of protection, requires separate representation by a lawyer or other person. Subsection 168(3) of the Act provides a list of circumstances where separate representation may be provided.
Routinely, child advocates are appointed in child protection matters to represent the children’s interests. The relationship is not necessarily the same as a solicitor-client relationship, as counsel for these children do not act only on instructions per se, but rather, they have to make an assessment of whether the instructions themselves are in the children’s best interests.
There is no specific legislation in Nunavut that provides counsel for children. Nunavut’s Children’s Law Act is identical to that of the Northwest Territories. There are not many assessments done in this area as the communities are rural and far apart, although there are an increasing number of family lawyers. Counsel is provided in child welfare proceedings.
In Ontario, there exists the most comprehensive system in Canada for the representation of children. The Office of the Children’s Lawyer (OCL) provides representation for children of all ages, in both custody/access and child protection proceedings. A child can have representation at any stage of a proceeding upon receipt of an order made pursuant to subsection 89(3.1) of the Courts of Justice Act. If the Court appoints counsel to a child in child protection matters, the OCL is required to provide representation. This is in contrast to custody/access matters, where the OCL has the discretion to decline to provide legal representation.
The Office of the Children’s Lawyer also has the ability to engage the assistance of a clinical investigator in custody and access
matters. A clinical investigator may be assigned in various capacities: e.g. as an
assistant to the OCL counsel, or independently to prepare a Children’s Lawyer Report under s. 112 of the Courts of Justice Act.
While the lawyers do obtain the child’s views and preferences in custody and access cases, they are not bound to strictly adhere to
them as in Quebec. Paragraph 7 of the policy statement provides,
"the child’s counsel must ensure that evidence is presented to the
Court to support the position taken on behalf of the child client". In the paper
by Clare Burns and Dan Goldberg, they summarize the situation in Ontario today,
indicating that if a child’s wishes have been
"independently formulated, clearly and consistently communicated to counsel, then
those views and preferences will form the basis of the position advocated by counsel on behalf of their child
clients". In addition, counsel will also look to the strength of the position held
by the child client.
A child’s counsel also ensures that circumstances and background evidence concerning the views of the child are before the Court. If the child cannot articulate his or her views, the position taken is based on the evidence and not on the lawyer’s opinion.
Unlike provinces such as Nova Scotia where children under twelve rarely have representation of any nature, the Office of the Children’s Lawyer routinely advocates even for young children.
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