Legal Representation of Children in Canada

6. The Proper Role of Child’s Counsel

Much of the literature on the legal representation of children focuses on what model of representation should be employed in representing children.Footnote 186 As noted by Birnbaum:

There have been many different forms delineated in the literature on the role of the lawyer in child legal representation. The roles range from a strict adherence to what the child wants (the traditional lawyer role), to what the lawyer may believe is in the child's best interests (litigation guardian), to a friend of the court (amicus curiae role).Footnote 187

In a 2009 study conducted by the National Judicial Institute and the Canadian Research Institute for Law and the Family, participants were asked several questions as to how children are represented in their jurisdictions. Almost one-third of respondents (29.4%) stated that the lawyer never acts as a friend of the court (amicus curiae) in their jurisdiction. However, most participants indicated that the lawyer acts as a best interests guardian (guardian ad litem) either often (32.4%) or sometimes (43.7%). Most respondents also stated that the lawyer acts as a traditional advocate either often or sometimes (84.3%).Footnote 188

Alberta’s Legal Representation for Children and Youth (“LRCY”) - a division of the Office of the Child and Youth Advocate - has created guidelines for lawyers who are appointed by that office to represent children. These guidelines note that lawyers are generally required to act as traditional advocates:

The lawyer appointed by LRCY must assume an instructional advocacy role when representing a child/youth who is able to express a wish, opinion, or position unless there are conditions present that would preclude counsel from doing so. Counsel must assess each child/youth individually to determine whether there are conditions present that would preclude the lawyer from assuming the role of an instructional advocate. When instructional advocacy is not possible, counsel must exercise discretion in determining which non-instruction-based role to assume.Footnote 189

The guidelines further state that “counsel must assess each child/youth individually to determine whether there are conditions present that would preclude counsel from assuming the role of an instructional advocate.”

Conditions that may justify the departure from this role include: where the child is preverbal; where it is easily apparent that the child has low cognitive functioning; or where the child has a mental impairment due to illness or intoxication. The guidelines further state that the simple fact that a child is under a particular age (e.g. twelve years old) “does not necessarily justify a departure from the role of instructional advocate unless, for example, the child is an infant and can be assumed to be preverbal.”Footnote 190

Ontario’s OCL also has directives for lawyers appointed through that office; but these are not publicly available. The duties of the OCL lawyer in family law cases include: meeting with the child's parents or anyone asking for custody or access, meeting with the child as many times as he or she believes is necessary, determining the child's wishes, where possible, contacting relevant sources of information (such as teachers, doctors, day care providers, therapists etc.), meeting with the parents or other parties to provide feedback and, where appropriate, suggesting ways to resolve the issues between the parties, taking a position that includes the child's wishes and other important information regarding the family, and advising the court what position he or she is taking on behalf of the child.Footnote 191