Legal Representation of Children in Canada

8. Guidelines and Directives for Lawyers Representing Children

None of the provincial or territorial law societies currently have guidelines for lawyers regarding the legal representation of children.  However in 2006, the Comité Administratif provided a draft report to the Barreau du Québec containing recommendations for changes to the Civil Code and other provincial statutes regarding the legal representation of children.Footnote 201 This draft report also contains suggestions of guidelines for lawyers acting on behalf of children.Footnote 202 The Law Society of Alberta previously published guidelines, but they are currently under review.Footnote 203

Neither the Canadian Bar Association nor any of the provincial branches of that association have guidelines to assist lawyers who represent children.

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, which are publicly available.Footnote 204 The Office of the Children’s Lawyer of the Northwest Territories, which was created five years ago, also has guidelines for lawyers.Footnote 205 Ontario’s OCL likewise has directives for lawyers appointed through that office. The guidelines of the Ontario OCL are not a public document.

The rules of professional conduct of all provinces and territories except Quebec, Prince Edward Island, and Nunavut contain a rule stating that “when a client’s ability to make decisions is impaired because of minority or mental disability, or for some other reason, the lawyer must, as far as reasonably possible, maintain a normal lawyer and client relationship.”Footnote 206 The phrase “normal lawyer and client relationship” would appear to support the view that a child’s lawyer should act as a traditional advocate, but the qualification “as far as reasonably possible” is vague enough to raise the spectre of other possibilities (such as the guidelines adopted by Ontario’s OCL).

Beyond our borders, the American Bar Association has created practice standards for lawyers who represent children in custody cases and in cases of abuse and/or neglect.Footnote 207 The American Academy of Matrimonial Lawyers has also created practice standards for lawyers who represent children.Footnote 208