Legal Counsel for Children in Family Law Matters
The appointment of counsel for children whose parents are involved in custody and parenting disputes is becoming more and more common.
You can either consent to counsel being appointed for your child, or you may contest the appointment. If you contest the appointment, your spouse would have to satisfy the court that the circumstances meet a legal test. This test includes whether you and your spouse, as parents, can adequately represent your child’s interests, and whether the appointment of children’s counsel is necessary and desirable in the circumstances.
Your child must also have the capacity to instruct counsel. Unfortunately, however, capacity has not been defined and there is a practical challenge associated with the assessment given that there is no sure way for the court to test for capacity.
In Calgary, lawyers can be appointed for children from three sources:
- Privately retained lawyers: charge full hourly rate for services;
- Legal Aid: subsidized rate for services; and
- Children’s Legal & Educational Resource Center (known as “CLERC”): free services, but there is a wait-list, which is currently sitting at an estimated six months.
If your child is or will be represented by a lawyer, in particular a CLERC lawyer, you should be aware of the following:
- This lawyer does not represent you, or your spouse, only your child. Therefore, your child’s lawyer is not in a position to give you legal advice and in fact it would be improper for he or she to give either parent legal advice;
- This lawyer represents your child’s interests, as those interests have been expressed to the lawyer by the child. This lawyer is not obligated to act in your child’s best interests, which may very well differ from the child’s own interests;
- Appointment of counsel for your child does not give your child decision-making authority in your custody/parenting dispute. Rather, it is intended to allow your child’s rights, interests, and viewpoints to be considered and taken into account;
- Even if your child has counsel, it remains your responsibility as a parent to pursue matters that you believe your child wants or needs. Your child’s counsel may or may not support you in those pursuits;
- Once counsel is appointed for your child, you must canvas that lawyer’s availability prior to scheduling any court dates regarding matters that will affect your child;
- Your child will be entitled to contact his or her lawyer whenever he or she wishes. A cell phone number may be provided to your child;
- Your child’s counsel will require your cooperation in making arrangements to meet with your child;
- When acting as an advocate for your child, solicitor/client privilege applies and information that your child asks his or her lawyer not to share with you will be kept private;
- Counsel for the child’s expectation will be that both parents refrain from questioning their client (your child) about what happened in meetings with their lawyer;
- Children’s counsel do not ordinarily get involved in matters involving child support, and will typically take no position on those types of issues.
There are many additional issues to consider. For instance, whose responsibility will it be to pay the costs (if any) associated with the appointment?
The most important thing to note is that the appointment of counsel for your child could play a significant role in your custody/parenting dispute. Careful thought should be given to whether the appointment of counsel is preferable or likely to be beneficial and it is a good idea to seek legal advice if this is something you are facing.