Children's Legal Representation

A child rights approach to legal representation for children: treating children as full rights bearers

The status of children has changed dramatically from the times when children were viewed as property…Today children are viewed as individuals, who as full right bearers and members of a group made vulnerable by dependency, age and need, merit society’s full protection.

Justice Sheilah Martin
Concurring Supreme Court of Canada judgment (Wagner CJ, Abella and Karakatsanis JJ)
Michel v. Graydon, 2020 SCC 24, at para. 77

Courts are not to be discouraged from defending the rights of children when they have the opportunity to do so.

Justice Russell Brown
For the Supreme Court of Canada
0 Michel v. Graydon, 2020 SCC 24, at para. 31

For rights to have meaning, effective remedies must be available to redress violations… So States need to give particular attention to ensuring that there are effective, child-sensitive procedures available to children and their representatives.  These should include the provision of child-friendly information, advice, advocacy, including support for self-advocacy, and access to independent complaints procedures and to the courts with necessary legal and other assistance…

General Comment No. 5 (2003)
General measures of implementation of the UN Convention on the Rights of the Child
(arts. 4, 42 and 44, para. 6)

Children are full rights bearers, entitling them to be legally empowered in court processes. Judges have obligations to defend those rights. The role of independent legal representation for children in court proceedings is critical in ensuring that children’s rights are in fact supported by judges, as well as lawyers and others, in court processes. Though the need for and role of independent legal counsel for children in Canada are topics not without some debate, the Commentary and Resources provided here use and support a child rights analysis of the need for  independent legal representation for children and the nature of such representation, consistent with the principles of the UN Convention on the Rights of the Child (CRC) and other international human rights standards.

Several provisions of the Convention on the RIghts of Children (CRC) support the child’s right to legal representation, including:

  • Preamble which recognizes that children, by reason of their physical and mental immaturity, require special safeguards and care, including appropriate legal protection 
  • Article 3 – the best interests of the child shall be a primary consideration in all actions concerning them, including by courts and administrative authorities, and States Parties shall take all legal and administrative measures necessary to ensure the child such protection and care as is necessary for their well-being
  • Article 4 - States Parties shall undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognized in the CRC
  • Article 9(2) – all interested parties shall be given an opportunity to participate in proceedings and make their views know where the child’s best interests may require them to be separated from their parents against their will, i.e. in cases of abuse, neglect or parental separation
  • Article 12 - the child shall in particular be provided the opportunity to be heard in legal and administrative proceedings affecting the child, either directly or through a representative or an appropriate body
  • Article 37(d) – every child deprived of their liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of their liberty before a court or other competent, independent and impartial authority
  • Article 40(2)(ii) – a child accused of a crime shall have legal or other appropriate assistance to prepare and present a defence; (iii) the guarantee of having the matter determined without delay by a competent, independent and impartial authority or judicial body in a fair hearing according to law, in the presence of legal or other appropriate assistance

International Law

Other International Standards

Interpretive Sources

  • CRC General Comments, especially 5, 12 and 14
  • Committee on the Rights of the Child, General Comment No. 5 (2003):  General measures of implementation of the Convention on the Rights of the Child (arts. 4, 42 and 44, para. 6), UN Doc. CRC/GC/2003/5 (2003)
  • Committee on the Rights of the Child, General Comment 10 (2007): Children’s Rights in Juvenile Justice, UN Doc. CRC/C/GC/10 (2007)
  • Committee on the Rights of the Child, General Comment No. 12 (2009): The right of the child to be heard, UN Doc. CRC/C/GC12 (2009)
  • Committee on the Rights of the Child, General Comment No. 13 (2011), The right of the child to freedom from all forms of violence, UN Doc. CRC/C/GC/13 (2011)
  • Committee on the Rights of the Child, General Comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration (art. 3, para. 1),UN Doc. CRC/C/GC/14 (2013)
  • Human Rights Committee, General Comment No. 32, Article 14:  Right to equality before courts and tribunals and to a fair trial, UN Doc. CCPR/C/GC/32 (2007)
  • Human Rights Committee, General Comment No. 17 on article 24 of the Covenant (1989), UN Doc. HRI/GEN/1/Rev.9 (Vol. I) p.193  
  • Human Rights Committee, General Comment No. 31 [80], The nature of the general legal obligation imposed on States Parties to the Covenant, UN Doc. CCPR/C/21/Rev.1/Add.13 (2004)

Canadian Law

Federal

Youth Criminal Justice Act, RSC 1985, c 3 (2nd Supp), s. 25

Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 167

Federal Courts Rules, SOR/98-106, rules 115 and 121

Provincial / Territorial

Alberta

Family Law Act, SA 2003, c F-4.5, s. 95

Child, Youth and Family Enhancement Act, RSA 2000, c C-12, ss. 112, 119

Child and Youth Advocate Act, SA 2011, c C-11.5, s.

Child and Youth Advocate Regulation, Alta Reg 53/2012, s. 1.1

Alberta Rules of Court, Alta Reg. 124/2012, Rule 2.11

British Columbia

Family Law Act, [SBC 2011] c. 25, s. 203

Child, Family and Community Service Act, RSBC 1996, c 46, s. 70

Manitoba

The Child and Family Services Act, CCSM c C80, s. 34

New Brunswick

Child and Youth Well-Being Act, SNB 2022, c 35, ss. 6, 6.1

Provincial Offences Procedure for Young Persons Act, SNB 1987, c P-22.2, s. 12

Newfoundland and Labrador

Children's Law Act, RSNL 1990, c C-13, s. 71(4)

Children, Youth and Families Act, SNL 2018, c C-12.3, ss. 12(3)(b), 56

Provincial Court Family Rules, 2007, N.L.R. 28/07, s. 5.10

Northwest Territories

Children's Law Act, SNWT 1997, c 14, s. 83

Child and Family Services Act, SNWT 1997, c 13, ss. 3, 86

Youth Justice Act, SNWT 2003, c 31, s. 14. 23

Nova Scotia

Children and Family Services Act, SNS 1990, c 5, s. 37

Family Court Rules, NS Reg 20/93, rules 5.05 - 5.07

Nunavut

Children's Law Act, SNWT (Nu) 1997, c 14, s. 83

Young Offenders Act, RSNWT (Nu) 1988, ss. 11-12

Ontario

Courts of Justice Act, R.S.O. 1990, c. C.43, s. 89(3), (3.1)

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 7.01(1), 7.04(2), 15.01 (1), 74.18

Family Law Rules, O. Reg. 114/99, rules 2(1), 4(2), (3), (7), (8), 8(12), 3

Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1, ss. 17(3), 77(7), 78, 138(2), 171(6)(b), (7), (8), 180(11), 194(3), 195(4), 197(4)(a)(ii), 197(7), 198(3), 207(5), 211

Mental Health Act, RSO 1990, c M.7, s. 43

Health Care Consent Act, 1996, SO 1996, c 2, Sch A, s. 81

Estates Act, RSO 1990, c E.21, ss. 10, 44-4

Prince Edward Island

Rules of Civil Procedure (PEI), rules 7, 15

Judicature Act, s. 33.1

Children’s Law Act, ss. 39(1)(c), 53(1)(a)(iii)

Rules of Civil Procedure (PEI), rules 70.16(12), 71.06

Child Protection Act, RSPEI 1988, c C-5.1, ss. 29, 34, to be replaced by Bill No. 32, Child, Youth and Family Services Act, SPEI, c. 17 (received Royal Assent but not yet proclaimed), s. 43

Quebec

Code of Civil Procedure, CQLR c C-25, ss. 56, 394.1, 394.2, 478.1

Youth Protection Act, CQLR c P-34.1, ss. 1, 2, 6, 9, 80, 81, 84

Saskatchewan

King’s Bench Rules, rules 2-14, 2-15, 2-21, 15-10(6)

King’s Bench Act, 1998, C.Q-1.01, s. 6-8

Public Guardian and Trustee Act, SS 1983, c P-36.3, s. 6.3

Provincial Court Act, 1988, SS 1998, c. P-30.11, s. 64.1

Yukon

Yukon Rules of Court, rules 6, 63(23), (24)

Children's Law Act, RSY 2002, c 31, s. 168

Child and Family Services Act, S.Y. 2008, c. 1, s. 76

Case Law

Legal Foundations for Legal Representation for Children in Canada

Children, like adults, have a right to access a lawyer to protect and advance their rights

Rights without effective remedies to protect and advance them can be meaningless. As British Columbia’s Chief Justice Bauman has said, “for any right to be more than just a promise, an individual must have a means with which to enforce the right.”  Why Access to Justice for Children Matters

  • The ability to access a lawyer to advance and protect rights without interference is considered a fundamental aspect of Canada’s legal system: Canada (AG) v. Federation of Law Societies of Canada, 2015 SCC 7. This ability is inextricably linked to the ability to advance and protect rights.
  • Children, as full rights bearers, are entitled to the benefit of this fundamental aspect of Canada’s legal system. (See for example Justice for Children and Youth v. J.G., 2020 ONSC 4716, which states that access to legal advice is a fundamental right in Canada and there is nothing which limits that right to adults.)

In SK v DG, 2022 ABQB 425, the Alberta Court of Queen’s Bench described children as full rights bearers and access to justice for children as a fundamental right.  The Court’s comments reinforce the need to have a child lawyer to protect and advance child rights, including the right to have their views taken seriously:

  • Access to justice for children is a fundamental right and a prerequisite to the protection of their human rights pursuant to the UN Convention on the Rights of the Child…  (at para 158)
  • Children are now recognized as “full rights bearers” who merit society’s full protection: Michel v Graydon, 2020 SCC 24 at para 77.  This foundational principle goes beyond simply allowing children to express their views in court proceedings; it includes the right to have those views taken seriously… (Citing General Comment 14, paras 40, 43 and providing cases where the UN Commentary have been used by courts to interpret Canada’s obligations) (at para 162)

The ability to access a lawyer is particularly important to children

Providing the ability to access a lawyer is even more important to children as they do not have the same advantages as adults to access a lawyer to advance and protect their rights.

For more information about the importance of accessing a lawyer to implement rights see:

Appellate Support for Legal Representation for Children from a Child Rights Perspective

  • Office of the Children’s Lawyer v. Balev, 2018 SCC 16, involved an application arising under the Hague Convention on the Civil Aspects of International Child Abduction. The Office of the Children’s Lawyer was appointed for the children during the original hearing and participated throughout the proceedings, including the appeals.  The Office of the Children’s Lawyer, in fact,  reviewed the decision of the Court of Appeal for Ontario, recommended an appeal, sought leave to appeal to the Supreme Court of Canada and to file fresh evidence, and appeared and made arguments on the children’s behalf at all stages, including ,  arguing the appeal before the Supreme Court of Canada. The Supreme Court accepted this extensive participation without comment. The Ontario Court of Appeal had also recognized that the Office of the Children’s Lawyer had become involved at the Court’s request to help determine the children’s wishes and to represent their interests (Balev v. Baggott, 2016 ONCA 680, at para. 13).
  • In Ontario (Children’s Lawyer) v. Ontario (Information and Privacy Commissioner, 2018 ONCA 559, 2018 SCC 16 (leave to appeal to the Supreme Court of Canada denied), the Ontario Court of Appeal provided a strong endorsement for legal representation for children in family law cases. That case involved a freedom of information request by a father for his children’s litigation records held by the Office of the Children’s Lawyer.  The appeal arose from a high conflict parenting case which included allegations of parental alienation. In allowing the appeal of the Children’s Lawyer, the Court addressed the role of the Office in representing its child-clients, emphasizing how legal representation is fundamental to the proper functioning of the legal system: 

[46] The unique role of the Children’s Lawyer is fundamental to the proper functioning of the legal system…

[…]

[53] In summary, the role of the Children’s Lawyer is fundamental to the proper functioning of our system of justice…

The Court also emphasized how important it is for children to be able to confidentially speak to a lawyer.

[70] The Children’s Lawyer not only represents the child’s interests; she provides a safe, effective way for the child’s voice to be heard.  For her to do this, she must provide a promise of confidentiality.  Children must be able to disclose feelings and facts to the children’s Lawyer that cannot or will not be communicated to parents.  Children’s interests can be averse to that of their parents.  Feelings of guilt and betrayal that may influence a child require a safe person to speak to.

A lawyer was appointed for the children and appeared as their counsel throughout the entire court proceedings, including the initial hearings.

  • The New Brunswick Court of Appeal, in S.H. v. Minister of Social Development and C.H., 2021 NBCA 56 considered the role of children’s counsel appointed under the Province’s child welfare legislation. The children’s lawyer expressed a personal view about what was in the best interests of the children instead of advocating for their views and preferences. Though the hearing judgment was not overturned, the Court considered various aspects of the role of counsel in “child custody” hearings.
    • Children’s counsel should not offer a personal opinion on the very issue the court is tasked to decide.  The best interests assessment is that of the application judges.  (paras 54 and 58)
    • The role of counsel is to represent a child’s interests viewed from the child’s perspective, not to be confused with best interests advocacy. (paras 41, 55 and 58.)
    • Counsel for the child has the right to receive disclosure, to examine and cross-examine witnesses, to fully participate in the proceedings and to make recommendations to the court. (para 55)
  • The British Columbia Court of Appeal, in A.B. v. C.D. and E.F., 2020 BCCA 11, supported the young person’s right to legal representation throughout contested court proceedings.  In that case a 14-year-old transgender boy (AB) brought a family claim under the British Columbia Family Law Act, applying for a Protection Order restraining his father from interfering in his treatment.  He did so through his own lawyer, and that lawyer and co-counsel appeared on his behalf throughout.  The Court of Appeal upheld the hearing judge’s order under s. 201(2)(b), which declared that “pursuant to para. 201(2)(b), AB is permitted to bring this application under the Family Law Act and to bring or defend any further or future proceedings concerning his gender identity“ (at para. 38).  The Court of Appeal stated that they would leave this para. “as is, with the declaratory language removed. Allowing a child to conduct a proceeding without a litigation guardian is a straightforward order of the court and requires no declaration.” At para 144.
  • In C.M.M. v D.G.C., 2015 ONSC 2447 (Div. Ct.), an appeal involving a child’s claim for child support against her father, the Court considered the issue of the need for a litigation guardian for the child to advance her claim:

[24] I would add, on this point, that there is a consequential access to justice issue that arises from the conclusion that a child must have a litigation guardian in order to exercise her/his rights to seek support. Normally, the logical persons to act as a litigation guardian for a child is that child's parents. However, in child support cases, the parents (or at least one of them) is likely to be on the opposite side to the child in the application. Indeed, in this case, we have the father as the respondent to the application, and the mother unable (or unwilling) to be involved in the case.3 There is, therefore, a legitimate concern that the requirement that a child must always have a litigation guardian in such matters may effectively disenfranchise many children from the very relief that the Family Law Act (and a number of other statutes) accords to them.Note that with respect to the legal representation safeguard found in General Comment 14, the B.C. Court of Appeal, in an earlier decision, J.E.S.D. v. Y.E.P., 2018 BCCA 286, noted, in comments not necessary to the decision and therefore not binding (obiter), that while the English version of the UN Committee’s comments refers to legal representation, the French version refers to “un conseil juridique”, which “appears to indicate” that the level of representation contemplated is not a full right to counsel, but rather a right to have the benefit of legal advice.

Caterina Tempesta (2019 at pp. 30-31) addresses this from a child rights perspective.  She states that using a teleological approach to the interpretation of the CRC, it is difficult to imagine that the Committee on the Rights of the Child intended children to have less than fulsome legal protection in judicial proceedings where their best interests are being assessed and where there is a conflict with a parent. Such an interpretation, she adds, is also inconsistent with the due process guarantees afforded to all persons under other human rights standards.

Tempesta (2019 at pp. 10-14) also states that those human rights standards include fair trial and due process rights found in the International Covenant on Civil and Political Rights, which applies to all persons, including children. Both the UN High Commissioner for Human Rights and the Human Rights Council support legal assistance, which includes representation in court, for children in all court proceedings, as being essential to those fair trial and due process rights. Those rights are captured in the safeguards and guarantees considered necessary by the UN Committee on the Right of the Child. The right to legal representation is considered to be implicit in Article 12 of the CRC. The underlying rationale is that, as the Supreme Court of Canada stated in Michel v. Graydon, 2020 SCC 24, at para. 96, child rights are meaningless without accessible means of enforcing them.

Strong International Support for Legal Representation for Children

The CRC: Specific Legal Safeguards

An essential goal of the UN Convention is to ensure that children’s rights are not only clearly described, but also effectively implemented. A major role of the UN Committee on the Rights of the child, created by the Convention in Article 43, is to do exactly that. The Committee describes eight specific procedural safeguards necessary when determining children’s best interests, including their participation rights, in judicial proceedings (General Comment 14 at paras 85-99). They reinforce children’s right to due process under other international instruments and standards. The safeguards include, but are not limited to, obtaining children’s views. The legal representation safeguard calls for legal representation when best interests are formally assessed by courts:

96.  The child will need appropriate legal representation when his or her best interests are to be formally assessed and determined by courts and equivalent bodies.  In particular, in cases where a child is referred to an administrative or judicial procedure involving the determination of his or her best interests, he or she should be provided with a legal representative, in addition to a guardian or representative of his or her views, when there is a potential conflict between the parties in the decision.

Legal representation is particularly important as it is required to make sure that the other seven procedural safeguards are followed, namely:

  1. prioritizing processes and avoiding unnecessary delay (having regard to the child’s perception of time) (para 93);
  2. obtaining children’s views (paras 89-91);
  3. establishing relevant facts (para 92);
  4. using qualified professionals (paras 94-95);
  5. using appropriate judicial “legal reasoning” in decisions which: (para 97)
    • apply child rights principles, including giving due weight to children’s views;
    • explain outcomes which do not accord with  children’s views; and
    • which are provided without delay;
  6. providing mechanisms to revise or review decisions (e.g. appeals and judicial review) (para 98);
  7. requiring governments to assess the impact of all laws and policies, including budget decisions, on children’s well-being, (para 99).
    • Note:  This safeguard, though not applying to court proceedings, is important in the general advocacy work lawyers do to support the rights of children.

The need for independent legal representation applies throughout court processes; the reference to courts of law in Article 3 – the best interests of the child as a primary consideration in all matters affecting the child - encompasses all relevant judicial processes including conciliation, mediation and arbitration processes (General Comment 14, para 27).

For more information about Child Rights Safeguards, see:

Other International Human Rights Support for Legal Representation for Children, including Legal Aid

  • The UN Human Rights Council supports legal aid for children under the same or more lenient conditions as adults (including the right to challenge decisions with a higher judicial authority). The Human Rights Council, in March 2014, in “Rights of the child: access to justice for children” (A/HRC/25/L.10)
  • The UN High Commissioner for Human Rights, in reporting to the Human Rights Council (A/HRC/25/35, paras 40 and 43):
    • supports free or subsidized legal (and other) assistance for children, saying they need it to effectively engage with the legal system
    • emphasizes that that the right to free legal assistance is not explicitly provided for in international law outside the criminal law context, access to legal and other assistance in these matters is essential for ensuring that children are able to take action to protect their rights.

These principles were referenced and applied in SK v DG, 2022 ABQB 425. The Alberta Court of Queen’s Bench (as it then was) stated:

  • To provide meaningful access to justice, children must be legally empowered with the right to independent representation, information, education, and competent advice: Report of the UN High Commissioner for Human Rights, Access to Justice for Children (2013). … (at para 159)
  • Access to legal assistance, though not explicitly provided for in international law outside the criminal law context, is essential for ensuring that children are able to take action and to protect their rights, citing:  The Report of the UN High Commissioner for Human Rights: Access to Justice for Children (2013), section 43: (para 304).

For more information about international human rights support see:

  • Tempesta, “The Right to Legal Representation: International and Regional Human Rights“ in, Legal Representation as a Necessary Element of Children’s Access to and Participation in Family Justice, 2022, at pp. 200 to 202 

Legal Representation in Civil and Criminal Law Matters Required to Ensure Fair Trial and Due Process Rights for Children

  • International human rights instruments, including the International Covenant on Civil and Political Rights, which Canada has ratified, recognize the right to a fair trial and due process. They apply to children.  Legal representation in both criminal and civil law matters is an integral part of those due process rights.

Special Considerations

Principles of Independent Legal Representation for Children As Full Rights Bearers

  • Children in Canada, like all people, are full rights bearers with rights found in domestic law, including the Charter, and international law, including the UN Convention on the Rights of the Child; rights are meaningless without the ability to implement them.
  • The ability to access a lawyer to advance and protect rights without interference is considered a fundamental aspect of Canada’s legal system. This ability is inextricably linked to the ability to advance and protect rights.
  • Children, as full rights bearers, are entitled to the benefit of this fundamental aspect of Canada’s legal system without discrimination.
  • While children can obtain general information about their rights from any knowledgeable person, not just a lawyer, only lawyers can provide the kind of child-specific advice an individual child requires to ensure that their rights are effectively implemented in legal processes.
  • When cases which impact children are before the courts, individual legal advice is necessary, but not sufficient. Actual independent legal representation throughout all the court processes, including resolution discussions, case management, hearings and trials, and appeals, is needed to protect and advance children’s rights.

The Importance of Safeguards and Guarantees:  UN Committee on the Rights of the Child

  • The need for appropriate legal representation when children’s best interests are to be formally assessed and determined by courts is one of the procedural safeguards and guarantees required by the UN Committee on the Rights of the Child to effectively implement and advance rights, including implementing the other seven safeguards and guarantees. In particular, the child should be provided with a legal representative, in addition to a guardian or representative of the child’s views, where there is a potential conflict between the parties in the decision.
  • Ensuring the right of the child to express their own views is one of the remaining seven safeguards, the others six being:
    • establishing relevant facts;
    • making timely decisions;
    • using qualified experts;
    • ensuring appropriate “legal reasoning”;
    • making sure there are mechanisms to revise or review decisions; and
    • using child rights impact assessments.

Importance of the Child Advocate Model

  • The child advocate model of independent legal representation for children, rather than a friend of the court (amicus) or best interests (guardian ad litem) model, is most consistent with the child rights approach found in the CRC.
  • A child advocate represents the child’s interests from the child’s point of view, providing confidential case-specific advice and representation. The other two models do not do so:
    • A friend of the court (amicus) usually involves a lawyer who meets with the child and ensures that the court is provided with the child’s views. That lawyer:
      • does not advocate for the child’s views, and
      • provides no confidentiality regarding the child’s communications
    • A best interests or litigation guardian stands in the place of the child, making recommendations based on what the lawyer considers is in the best interests of the child. 

Role of the Child Advocate

  • A child advocate has a role throughout the entire court process, which includes:
    • Facilitating settlements which incorporate the child’s rights, including the right to participate. 
    • At a contested hearing/trial advocating for the child: 
      • in the presentation and testing of evidence, including evidence supporting the child’s position;
      • in guarding against unreasonable delay; and
      • by advancing and protecting children’s rights in legal arguments and submissions.
    • Facilitating attendance at a judicial interview, if the child so wishes, and attending with the child.
    • After the court makes the ultimate decision: 
      • explaining the decision to the child;
      • reviewing the ultimate decision for correctness;
      • recommending an appeal/judicial review of the decision if appropriate; and
      • representing the child during the appeal process.
    • Ensuring that child rights are protected during enforcement proceedings including:
      • Requests for police enforcement orders, and
      • Non-consenual therapeutic interventions.

Convention Rights Apply to All Children and All Cases

  • The CRC applies to all children and all cases.  All children have the rights set out in it, including their fundamental right to participate, in all types of cases.
  • Independent legal representation is especially important in ongoing, contentious court proceedings.  These are the cases in which

(1) both court processes and court outcomes can have a particularly profound impact on children’s daily lives and their short- and long-term well-being, and

(2) it is even more likely that children’s rights will be overlooked or undermined.

  • Among the rights at stake are: the right to participate in decisions that affect them, which is particularly important in violence cases;  the right to be free from violence of all kinds, including psychological, emotional and physical violence which could lead to injury or even death; the right to life and healthy development; the right to health; the right to have a relationship with both “parents” but only when it is safe to do so; and the right to privacy.

Child Rights in Cases of Family Violence and or Resist/Refuse Contact Problems (“Alienation”)

  • Cases which involve allegations of family violence and or “alienation” are ones in which the stakes for children could not be higher, making independent legal representation especially important. 
  • Potential child rights violations in these cases include:
    • Inappropriate silencing children by excluding their views about family violence and alienation;
    • Denying children the right to independent legal representation to protect and advance their rights;
    • Use and misuse of parenting assessments in family violence and alienation cases; 
    • Non-examination of the scientific basis for reunification therapies;
    • Not obtaining the child’s informed consent to reunification therapy;
    • Use and misuse of police enforcement clauses in orders.
  • In spite of the fact that there are such important rights at stake in these cases, it is sometimes argued that legal representation inappropriately places the child in the middle of the conflict. However, it is the fact of the conflict, not the child’s participation and protection of their legal interests, that can be harmful.

A Child Rights Approach to Interpreting and Applying the 2021 Divorce Act

  • It is essential to apply a child rights approach to the interpretation of the Divorce Act and provincial family law legislation
  • The statutory interpretation principles reviewed by the Supreme Court of Canada in Michel v. Graydon apply; they include the presumption that legislation takes into account Canada’s international obligations, including the CRC.

Practice Essentials

Role and Responsibilities of Counsel for Children

A Child Rights Approach Requires Using the Child Advocate Model

  • A somewhat debated aspect of child legal representation, especially in child protection and custody/access/parenting matters, is counsel’s role or representational stance. Much has been written on this subject with the possible roles designated using various terms and described in numerous articles.
  • From a child rights perspective – one that treats children as full rights bearers - only a lawyer who acts as the child’s advocate is fully respecting the young person’s rights. The court is the client of any lawyer who takes a ‘friend of the court’ (amicus curiae) role; an adult person standing-in for the child is the client of a lawyer acting as a litigation guardian (guardian ad litem); and a lawyer who advocates only for the best interests of the child arguably has no client at all. 
  • Child advocacy involves explaining in a confidential child friendly way the law and options available to the child client, taking a position consistent with the child’s expressed views or ‘instructions’, and advocating accordingly.
  • Representing a child’s ‘interests’ should not be confused with ‘best interests’ advocacy. A child’s interests are the individual child’s subjective ‘interests’, not interests as determined by some other individual or counsel’s own opinions or perspectives of what is in a child’s interests.
    • The New Brunswick Court of Appeal referred to the Child Rights Toolkit analysis (2015) in concluding that the role of counsel is to represent a child’s interests, not to be confused with best interests advocacy: S.H. v. Minister of Social Development and C.H., 2021 NBCA 56 at paras 41, 55 and 58.
  • Child counsel’s obligations though go beyond simply conveying a child’s views to decision-makers. A child’s lawyer must behave as far as reasonably possible as counsel for any adult, in accordance with federal and provincial/territorial professional Codes of Conduct.
  • Competent legal representation of a child requires knowledge of these responsibilities, and more, given the particular vulnerabilities and capacity issues relating to children. Counsel must be particularly vigilant to follow procedural and evidentiary rules as closely as is possible to ensure proper representation of a child-client’s interests and fairness to the parties.
  • Information must be conveyed in a way that takes into account the child’s particular circumstances including their age, level of maturity, cognitive abilities and social context

For more information on the importance of a child advocate‘s approach see:

For information which does not engage in a specific child rights analysis see:

  • Bala and Birnbaum, Rethinking the role of lawyers for children, 2018

Legal Representation in Court Proceedings is Required to Advance and Protect the Rights of Children

Legal Information is not Enough:  Legal Advice and Representation is Required

  • People other than lawyers can provide basic information to children about legal processes, such as: their rights generally; their rights to participate and the choices available to do so; the way court processes work and the role of the judge.
  • However, only a child’s lawyer though can provide specific, confidential advice to the particular child; the lawyer has professional obligations to: investigate facts, identify issues; determine the child’s objectives; consider possible legal options; and develop and advise the child on appropriate courses of action.

Legal Advice Necessary but Not Sufficient

It is sometimes said that legal advice from a lawyer is sufficient for children and that independent legal representation in court proceedings, including settlement processes and contested hearing and trials, is not necessary or appropriate. However, providing legal advice without the means of implementing the legal rights encompassed by that advice does not treat children as full rights bearers.  Rather, it deprives children of the ability to protect and advance their rights in court processes, ones that profoundly affect their lives. Giving people rights without access to those who can present those rights and expertly, without the right to representation, is of little value. Rights without remedies are of symbolic importance, nothing more. (M. Freeman, Why It Remains Important to Take Children’s Rights Seriously, 15 International Journal of Children’s Rights 5 (2007))

Facilitating Settlement Discussions

A child’s lawyer can effectively facilitate settlements which incorporate the child’s rights, including the right to participate.

Trials or Interim Hearings

It cannot be assumed that other parties will accurately or adequately present evidence and arguments to protect and advance children’s rights. At a contested hearing/trial, the child lawyer’s participation is essential in ensuring that the necessary safeguards and guarantees identified by the UN Committee on the Rights of the Child are in fact implemented.  For example, the lawyer can use their legal knowledge and skills on the child’s behalf:

  • In the presentation and testing of evidence, including evidence supporting the child’s position.
    • Note: There is an argument advanced by some that the child’s lawyer, not the parent’s lawyer or an independent person, should be responsible for ensuring that all evidence relating to the child is before the court, including evidence that detracts from the child’s position. From a child rights perspective, treating children’s right to have a lawyer fundamentally differently in this way is inconsistent with treating them as full rights bearers. It is also inconsistent with lawyers’ professional responsibilities under provincial/territorial rules of conduct.
    • It is the parents, not the child, who have the legal responsible to ensure that decisions are made which are in the child’s best interests and which respect their rights (see CRC article 18(1)); but it is the child whose rights and interests are at the core of the proceedings and whose vulnerability make them most at risk of rights violations and in need of an advocate they can trust and who focuses solely on them and their rights, particularly when there is a conflict between the parties in the decision.  (See Ontario (Children’s Lawyer) v. Ontario (Information and Privacy Commissioner), 2018 ONCA 559, at para 70)
  • in guarding against unreasonable delay; ensuring that expert evidence is used only when necessary, and then by experts with appropriate background and skills. 
  • by advancing and protecting children’s rights during submissions, including submissions on the relevant law, how the child’s views should be weighed, and the admissibility and weight to be given to any expert assessment in the context of all of the evidence.

Facilitating and Attending a Judicial Interview/Meeting with the Child

  • Reasons for meeting with a judge are described by Martinson and Raven in Implementing Children’s Participation Rights in All Family Court Cases at pp. 16-18.  A judicial interview can:
    • Support the UN Committee on the Rights of the Child’s view that children should be able to be heard directly by the decision-maker.
    • Enable children to be more involved and connected with the proceedings
    • Make sure the judge has understood the views and feelings of the child
    • Make sure the child understands the judge’s task and the nature of the court process.
  • In Hensley, Role and Responsibilities of Counsel for the Child in Alberta, 2006, the author supports counsel for the child not only attending such an interview but also preparing both the child and the judge, if permitted, for a positive interview experience (at p. 901).  Under ss. 64(2)-(4) of Ontario’s Children’s Law Reform Act, R.S.O. 1990, c. C. 12, the court may interview the child to determine their views and preferences. The interview must be recorded, and the child is entitled to be advised by and to have their counsel present during the interview.

Appeals

  • Once the court’s decision has been provided, an important role of a child advocate is to:
    • explain the decision to the child;
    • review the ultimate decision for correctness;
    • recommend appealing the decision if appropriate; and
    • represent the child during the appeal process.

Note: It has been suggested by some that lawyers are not always needed in court proceedings (see Bala and Birnbaum, Rethinking the role of lawyers for children, 2018, at p. 794). A similar comment would never be made about adult parties and fails to respect children as full rights bearers. From a child rights perspective, there are aspects of the role lawyers play that are unique and necessary when courts are formally assessing a child’s best interests.

  • The Alberta Court of Queen’s Bench (now King’s Bench) in SK v DG, 2022 ABQB 425, emphasized these benefits of the child’s lawyer (at paras. 171 and 175):
  • Establishing a privileged, confidential, open, independent and honest relationship with the child.
  • Engaging on an ongoing basis with the child in very changing situations, especially in cases which are drawn out over a long time, complex and multifactorial; and
  • In alienation cases, teasing apart concerns and properly guiding the child to understand the full picture and consequences of the child’s wishes. 
  • That Court also agreed with the views of Caterina Tempesta who, emphasizes:
    • The unique legal assurance of confidentiality that a child’s lawyer and no one else can provide to the child-client which is essential to engendering the child’s trust and to the exchange of information/provision of legal advice and which are essential to the child’s effective access to justice and participation.
    • The fact that a child’s lawyer protects the child’s legal interests while all other representatives either lack this expertise or do not have this primary mandate.
    • That in adversarial legal systems, the child advocate is the only representative who gathers and tests evidence relevant to the child’s position and makes legal arguments in support of the child’s desired outcome.  This is critical to ensuring the child’s views are not merely heard, but given due consideration by decision-makers as required by Article 12. That the child’s lawyer ensures, by being involved throughout the process, that the child’s participation is a process rather than a “momentary act” (see Committee on the Rights of the Child, General Comment No. 12 (2009): The right of the child to be heard, UN Doc. CRC/C/GC12 (2009), at para 13). This can facilitate settlement consistent with the child’s interests, as well as provide up to date information about the child’s views and circumstances.
    • That the child’s lawyer is the only representative able to directly assess, advise on, and access review or appeal mechanisms. This is significant if the child’s views have been inadequately considered or explained in the judgment (see Ontario (Children’s Lawyer) v. Ontario (Information and Privacy Commissioner), 2018 ONCA 559).
    • Reference: Caterina Tempesta, “Legal Representation as a Necessary Element of Children’s Access to and Participation in Family Justice” Excerpted from M. Paré et al, eds. Children’s Access to Justice: A Critical Assessment, (Cambridge, UK: Intersentia, 2022) at 208
  • The New Brunswick Court of Appeal in S.H. v. Minister of Social Development and C.H., 2021 NBCA 56 concluded that counsel for the child has the right to receive disclosure, to examine and cross-examine witnesses, to fully participate in the proceedings and to make recommendations to the court (para 55).  This is also true for lawyers in Ontario who are appointed to represent a child in family law and child protection proceedings. Under both the Child, Youth and Family Services Act (s. 79(6) and Family Law Rules (r. 4(7)), a child who is represented by a lawyer has the rights of a party. This is also provided for in the standard form order for the involvement of the Children’s Lawyer in Ontario. 
  • In M. v. F. 2022 ONSC 505, the Ontario Superior Court, in requesting that the Office of the Children’s Lawyer represent the child in an alienation case, concluded that it is in the child’s “best interests to have a legal representative to ensure that the court has evidence and argument” on the child’s views and preferences (at para. 16). 
  • The Yukon Supreme Court, in B.J.G. v. D.L.G., 2010 YKSC 44, has supported legal representation in the proceedings, not just legal advice, as a meaningful way to ensure that more than lip service is paid to children’s legal rights to be heard throughout the court processes. 

For more information on a child rights approach to independent legal representation for children see:

For more information about the Child Advocate Model see:

The Need for Legal Representation Applies to All Children and All Cases

Rights and Safeguards and Guarantees Apply to All Children and All Cases

  • The CRC applies to all children and all cases. Article 1 specifically says that a child means every human being below the age of 18.   All children have the rights set out in it, including their fundamental right to participate, no matter what issue or issues are at stake.
  • Canada shall respect and ensure the rights set forth in the present Convention to each child within its jurisdiction without discrimination of any kind Article 2(1).
  • None of the other three CRC general principles -- making the best interests of the child a primary consideration in all actions affecting the child Article 3(1); the child’s inherent right to life (Article 6); and the child’s right to express their views freely in all matters affecting them, with due weight being given to th child’s views (Article 12(1)), as well as the child’s right to be heard in judicial proceedings affecting them (Article 12(2) -- limit the application of the non-discrimination principle to particular children or cases: .
  • The legal representation safeguard/guarantee required by the Committee on the Rights of the Child also applies to all children (General Comment 14, para. 96):

The child [with no qualification] will need appropriate legal representation when his or her best interests are to be formally assessed and determined by courts… when there is a potential conflict between the parties in the decision.

Independent Legal Representation in Contentious Court Proceedings

  • Independent legal representation is especially important in ongoing, contentious court proceedings.  Though child rights are relevant to all children and all cases, these are the cases in which:
    • both court processes and court outcomes can have a particularly profound impact on children’s daily lives and their short- and long-term well-being; 
    • it is even more likely that children’s rights will be overlooked or undermined.

Access to justice for children is about building a system that recognizes these difficulties [in accessing enforcement measures], but nonetheless gives children participatory rights.

It is not about paternalism. It is about empowerment.

Hon. Robert J. Bauman, Chief Justice of the British Columbia Court of Appeal
CLE BC Access to Justice for Children:  Child Rights in Action Conference, May 11, 2017

The Importance of Legal Representation for Children in Family Violence and Children Resisting Contact Cases

High Potential for Serious Child Rights Violations Generally

Cases involving allegations of family violence, often associated with counter-allegations of children resisting contact due to “parental alienation”, provide an important example of how independent legal representation is necessary to ensure children’s rights, including the safeguards and guarantees required to implement them, are not overlooked or undermined; independent legal representation plays a critical role. 

  • Article 12 of the CRC, children’s participation rights, applies in these cases. Several other articles of the CRC are of particular relevance and include: The Convention Preamble emphasizes the importance of recognizing the inherent dignity and worth of children and their equal and inalienable rights, as “members of the human family”. 
  • The four general principles of the CRC inform its holistic approach:
    • Article 2 - non-discrimination;
    • Article 3 - best interests of the child;
    • Article 6 - the right to life, including the right to healthy development; and
    • Article 12, the right to be heard. The child’s right to be heard has “particular relevance in situations of violence” (General Comment 14, para. 63)
  • Article 19 - children’s right to be protected from violence of all kinds while in the care of parents, legal guardians or any other person who has care of the child
  • Article 9(3) – the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis but only when it is safe to do so – i.e. “except if it is contrary to the child’s best interests”
  • Article 24 - the child’s right to the enjoyment of the highest attainable standard of health
  • Article 16 - the child’s right to privacy

Silencing Children

There is significant judicial support for the conclusion that the right to participate applies to all children and all cases; no exception is made for cases involving violence and/or children resisting contact. See for example B.J.G v. D.L.G.:  2010 YKSC 44 at para 13; N.J.K v. R.W.F., 2011 BCSC 1666; Medjuck v. Medjuck, 2019 ONSC 3254 at para 31; and M. v. F., 2022 ONSC 505.

  • Yet, children are too often silenced in these cases.The (then) Alberta Court of Queen’s Bench in SK v DG, 2022 ABQB 425 referred to the importance of first determinging whether there is alienation and not prematurely concluding that a child cannot form their own views because of alienation:

Justice Martinson and Dr. Margaret Jackson state that a court must determine whether there is in fact alienation and that caution must be exercised to ensure that a court does not prematurely conclude a child cannot form their own views because of alienation. The authors state that the “question of whether the child’s views have been “tainted” ought to be left to be determined as a question of due weight to be given to the views.”: Justice Donna Martinson and Dr. Margaret Jackson, “The 2021 Divorce Act: Using Statutory Interpretation Principles to Support Substantive Equality for Women and Children in Family Violence Cases” (2021) 5 Family Violence & Family Law Brief, The FREDA Centre for Research on Violence Against Women and Children at page 15. (para 179)

  • That Court also stated that allegations of alienation or coaching must be treated with caution.  Courts should be careful not to rely on allegations of alienation as justification for silencing the voice of the child or according to their voice minimum weight, citing C. Tempesta, “Legal Representation as a Necessary Element of Children’s Access to and Participation in Family Justice” Excerpted from M. Paré et al, eds. Children’s Access to Justice: A Critical Assessment, (Cambridge, UK: Intersentia, 2022) at 204 (citations omitted) (para 178)

Misuse of Parenting Assessments: Treating Children as Full Rights Bearers

Assessments can be prepared in ways that discriminate against children.  The child’s lawyer can minimize this risk by addressing questions such as:

  • Is the report necessary at all, given the issues in dispute, the cost, delay and inevitable stress on everyone, but especially the child?
  • If so, does the assessor have the appropriate qualifications, such as in-depth training and experience about family violence?
  • Is the assessor in a position to offer an opinion on parental alienation? Are they familiar with the controversies, nuances and limitations of the social science research regarding parental alienation?
  • Is the assessor/assessment biased?
  • How will the child be included in the process in a meaningful way?
  • Is the report, once complete, admissible?
  • Is a critique report necessary or admissible?
  • How much weight should be attached to the report and its conclusions in the context of all of the evidence and applying child rights legal principles?

See: UN Human Rights Council, Custody, violence against women and violence against children, Report of the Special Rapporteur on violence against women and girls, its causes and consequences (A/HRC/53/36 (2023), at paras. 58-63)

Failure to Use A Child Rights Focus in Interpreting Family Law Legislation

Principles of Statutory Interpretation

  • Independent legal representation is necessary to ensure that children’s rights are protected and advanced in divorce proceedings relevant to children.
  • Doing so includes ensuring courts use well-established principles of statutory interpretation when interpreting and applying the relevant provisions of the 2021 Divorce Act and other family law legislation in ways that support the rights of children and their status as full rights bearers.  See Michel v. Graydon, 2020 SCC 24:
    • It is presumed that the legislation takes into account Canada’s international obligations, including the UN Convention on the Rights of the Child (Concurring judgment at para. 103)
    • Principles in international conventions such as the UN Convention on the Rights of the Child help inform the contextual approach to the interpretation of the Family Law Act (FLA) as well as the Divorce Act (Concurring judgment at para. 103)
    • Consider that the legislator is taken to know the social and historical context in which it makes its intention known (Concurring judgment at para. 97)
    • Consider the broader social framework as it is an approach called for in family law cases (Concurring judgment at para. 88). 

Using a Child Rights Approach to Interpret Specific Sections

  • For an analysis of how these principles of statutory interpretation can be applied by lawyers in family violence and alienation cases under the Divorce Act, see, The 2021 Divorce Act: Using statutory interpretation principles to support substantive quality for women and children in family violence cases, at pp. 6-16.  The article summarizes the key points in this way, at p. 8:
  • Provides four broad principles key to the Divorce Act’s scheme and objects:
    • Best interests of the particular child as the only consideration (s. 16(1)
    • That children’s safety, security and well-being must be given primary consideration (s. 16(2))
    • No presumption of joint or shared parenting
    • No general maximum parenting time/contact principle (s. 16(6) – always subject to the child’s safety, security and well-being and best interests (see Barendregt v. Grebliunas, 2022 SCC 22, at paras. 134-135, 164)
  • Applies an expansive, non-exhaustive definition of family violence
  • Recognizes protection requires risk assessment – determining the impact of family violence now and on future risk
  • Makes clear that the “friendly” cooperative, communicative parenting provisions are subject to s. 16(2), i.e. the child’s safety, security and well-being
  • Establishes that children have the right to have their views and preferences meaningfully considered in all cases, which includes family violence and alienation cases (s. 16(3)(e)).
  • Recognizes that protection from family violence requires both knowledge of and coordination of other relevant legal proceedings, especially child protection, criminal and immigration proceedings (s. 16(3)(k).

Discriminatory Use of Reunification Therapy

Several challenging issues arise relating to potential child rights violations in connection with the use of reunification therapy in family violence/“parental alienation” cases.  A child’s lawyer could, argue, from a child rights perspective:

  • that such orders should not be made without the informed consent of the child, having regard to article 12 of the CRC and consent to treatment legislation and principles in a number of jurisdictions;
  • that the scientific validity of such therapies, including their benefit to children, has not been subjected to rigorous scientific analysis;
  • that there may be other explanations for a child’s reluctance to see a parent, ranging from a child’s natural affinity for one parent to realistic estrangement from the other parent due to abusive or other less-than-ideal parenting behaviours;
  • that the risk of harm to the child from being forced to participate in such therapy, including the violation of their physical and psychological integrity, outweighs any perceived benefit.

As stated by the UN Special Rapporteur on violence against women and girls: “Experts also recommended solutions to alienation, which may not be compatible with the welfare and rights of the child, including the transfer of custody, the use of “reunification camps and therapies”, where children are held against their will and pressured to reject the influence of the parent with whom they are most bonded.” (at para. 61). The Special Rapporteur went on to make a number of recommendations which include:

  • States ensuring that children are legally represented separately in all contested family law proceedings
  • States ensuring that that the views of the child are sufficiently and independently represented in family law procedures and, where possible, children be able to participate in such proceedings, according to their age, maturity and understanding and all safeguards and obligations contained in the Convention on the Rights of the Child should be used (para. 74)

See: UN Human Rights Council, Custody, violence against women and violence against children, Report of the Special Rapporteur on violence against women and girls, its causes and consequences (A/HRC/53/36 (2023)

Discriminatory Use of Police Enforcement Clauses for Orders

There are numerous examples of children in Canada being taken into police custody against their will, sometimes at school or otherwise in public, based on court orders which contain police enforcement clauses.

Children in these instances require legal representation to ensure their rights and interests are individually considered through submissions on their behalf, including:

  • that granting a police enforcement clause against a child, who is typically not a party to the proceedings, is invasive, traumatic, draconian and an inappropriate way of enforcing an order made against a parent
  • that it engages the child’s s. 7 Charter rights to security of the person, which includes physical and psychological integrity, in a manner that may not accord with the principles of fundamental justice
  • that there may be other suitable and less intrusive ways of ensuring that parents respect court orders.

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