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Representation - Lawyers - Right to Counsel. Justice for Children and Youth v. J.G.
In Justice for Children and Youth v. J.G. (Div Ct, 2020) the Divisional Court commented on the right to a lawyer, here a child:[42] In Wood v. Schaeffer, 2013 SCC 71, Binnie J. commented on the foundational principle that everyone is entitled to seek the advice of a lawyer:Everyone is entitled to seek the advice of a lawyer. This freedom also reflects the importance of the societal role of lawyers in a country governed by the rule of law. Lawyers represent people, communicate legal information and give advice. The execution of these functions contributes to the maintenance of the rule of law. Indeed, these functions are deemed so important that they are often protected by strong privileges of confidentiality that are linked to our basic values and constitutional rights. With this in mind, the freedom to consult with counsel should not be eliminated merely through a narrow reading of the regulation in the absence of clear legislative intent. This narrow interpretation also reflects an unjustified mistrust of lawyers. It cannot be assumed that lawyers will advise their clients to break the law and fail to discharge their duties to the public and to justice itself. [43] Children are not exempted from this principle. There is no common law principle or legislative requirement that children are to obtain their parents’ permission or an order of the court before they are entitled to obtain advice from a lawyer.
[44] The father’s primary argument before the motion judge and before us is that, in the context of family law proceedings or child protection proceedings, children are entitled to the advice of counsel if they seek representation and standing. In other words, according to the father, there is no distinction between participatory rights in the proceeding and the ability to seek and obtain legal advice. The motion judge appears to have accepted this proposition. However, we see no legal support for it. While both the Family Law Rules, O. Reg. 114/99 and the CYFSA create mechanisms for children to apply for and be granted standing in family and protection proceedings, there is no statutory or common law principle that would preclude a child from seeking legal advice. On the contrary, as set out below, the relevant provisions of the CYFSA support a child’s entitlement to seek and obtain legal advice.
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The rights of a child to legal advice
[51] As held by Binnie J. in Wood, access to legal advice is a fundamental right in Canada. There is nothing that limits this right to adults.
[52] As stated by the Court of Appeal in Ontario (Children’s Lawyer) v. Ontario (Information and Privacy Commissioner), 2018 ONCA 559, childhood is not a “legal disability” disentitling children from the right to retain and instruct counsel. At paras. 71 and 72, the Court noted the right of children to speak to counsel in a private, confidential sphere so that their voices can be heard.
[53] Children consult and retain lawyers regularly across Ontario without prior permission from their parents or the court on topics as diverse as immigration, housing, education, criminal law, health law, and many other topics including family law. JFCY is a legal clinic that specializes in providing legal advice to young people. The argument that parental permission or court authorization is required before JFCY can give advice to children would undercut its ability to do its work. The position of the respondent father that his permission, as the court-ordered custodial parent, was required before his son can consult a lawyer, is, simply put, wrong.
[54] In fact, the CYFSA reinforces this view.
[55] The preamble to the CYFSA states that children are “individuals with rights to be respected”.
[56] Section 10(1)(b) of the CYFSA provides that a child in care, which was A.G.’s status at the time the order in this case was made, is entitled to speak in private with and receive visits from a lawyer.
[57] Children over the age of seven have a right to independent legal advice in adoptions.
[58] The CYFSA also permits children of 12 years of age or over the right to seek to vary or terminate supervision, interim or extended custody orders (CYFSA, ss. 113(4)(a), 115(4)(a)), implying that they have a right to seek legal advice before doing so.
[59] A child also has a separate and distinct right to participate in CYFSA proceedings apart from direct representation. Section 79(4) states that a child 12 years of age or older is entitled to receive notice and be present at the hearing, unless the court is satisfied that their presence would cause the child emotional harm.
[60] The CYFSA’s reference to international human rights instruments also reinforces the rights of children to obtain independent legal advice.
[61] The preamble to the CYFSA states “… the Government of Ontario acknowledges that the aim of the Child, Youth and Family Services Act, 2017, is to be consistent with and build upon the principles expressed in the United Nations Convention on the Rights of the Child”.
[62] The United Nations Committee on the Rights of Children’s 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), 29 May 2013, CRC/C/GC/14, recognizes at para. 4 that a child’s right to legal services forms part of the protection of their best interests. General Comment No. 12 (2009), The right of the child to be heard, 20 July 2009, CRC/C/GC/12, links the right to legal services with the right of the child to understand their rights and the processes in which decisions are being made about them. Paragraph 16 states:The child, however, has the right not to exercise this right. Expressing views is a choice for the child, not an obligation. States parties have to ensure that the child receives all necessary information and advice to make a decision in favour of her or her best interests. [63] Children are entitled to seek legal advice without permission from their parents or the court. No authority was cited to us to the contrary. Neither Rule 4(7) of the Family Law Rules nor s. 78 of the CYFSA speaks to this point. Indeed, by necessary implication, Rule 4(7) and s. 78 of the CYFSA must indicate the contrary: in order for a child to move under these provisions, the child will usually have to consult a lawyer before court permission to participate in the proceeding can be sought.
[64] While we agree that the court could intervene in a particular solicitor-client relationship between a lawyer and a child, we have difficulty imagining a case where the court would make an order that entirely precluded a child from seeking and obtaining legal advice from any lawyer. It certainly may be appropriate for the court to intervene in a parental alienation case where the lawyer is closely allied with one parent. However, in such cases, the court would ordinarily facilitate an arrangement for the child to obtain legal advice elsewhere, and certainly would not prohibit the child from getting legal advice altogether.
[65] Where a child wishes to receive legal advice, many factors can come into play in identifying and arranging for that counsel. We do not find it necessary to canvass the spectrum of approaches that are available. However, where, as here, a child has independently sought out the assistance of a legal clinic that specializes in dealing with children in crisis, it is hard to imagine that there would be many circumstances, if any, that would justify terminating that relationship.
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