Children’s right to independent legal advice affirmed by Ontario Divisional Court

By Clancy Catelin                           

On August 18, 2020, the Ontario Divisional Court (the “Court”) set aside an order restraining Justice for Children and Youth (“JFCY”) and one of its staff lawyers, Ms. Samira Ahmed, from representing or contacting their client, a 14-year-old boy referred to as A.G. The order restraining JFCY from advising A.G. arose in the course of high conflict family law proceedings which have been ongoing in various forms since 2016, including child protection proceedings.

Background                                                           

JFCY is a charitable legal clinic that provides free legal advice for children and youth in Ontario across a variety of practice areas, including family law and child protection proceedings. A.G. became involved with JFCY after contacting them for advice in July 2019. At that time, A.G. had run away from a children’s aid society (“CAS”) supervised kinship placement. Ms. Ahmed, who was A.G.’s primary contact at JFCY, declined to disclose A.G.’s location to his father on the basis of solicitor-client privilege but facilitated A.G.’s return to his placement with CAS.

Over the next several months, A.G. continued to contact Ms. Ahmed against the wishes of his father. A.G.’s father’s opposition to A.G. communicating with JFCY and Ms. Ahmed was also communicated to them through the father’s own counsel. In December 2019, A.G. ran away from his father’s home and again, Ms. Ahmed declined to disclose A.G.’s location to his father or CAS without A.G.’s instructions. She maintained this position when a warrant was issued for A.G.’s apprehension under the Children, Youth and Family Services Act (“CYFSA”).

The Order

Following these events, A.G.’s father brought an urgent motion seeking an order to compel JFCY to disclose A.G.’s location and restrain Ms. Ahmed and JFCY from acting for A.G. in the child protection proceedings or related proceedings and from having any further contact with A.G. As an interim measure, Ms. Ahmed facilitated a meeting between A.G. and CAS workers and A.G. agreed to be placed in a foster home.

At the motion hearing, A.G.’s father argued that Ms. Ahmed and JFCY had operated in a fashion that empowered A.G. to undermine the efforts of the court to address A.G.’s alienation from his father. On this basis, the motion judge made an order restraining Ms. Ahmed and JFCY from having contact with A.G.

Error of Law to Restrain A.G. from Seeking Legal Advice

The Court found that the order restraining Ms. Ahmed and JFCY from having contact with A.G. rested on a mistake of law because the motion judge failed to differentiate between a child’s right to independent legal advice and a child’s right to standing and legal representation in a child protection or family law proceeding. While it was open to the court to deny legal representation and standing to a child in appropriate circumstances, this determination should have been distinct from the issue of a child’s entitlement to seek or receive advice from legal counsel. The decision of the motion judge had made the serious error of ignoring the foundational principle that everyone is entitled to seek the advice of a lawyer, including children.

The Court’s reasons also confirmed that there is no requirement for parental permission or court authorization before a child can seek or receive legal advice. In their discussion of this issue, the Court highlighted the various provisions of the CYFSA which enshrine the rights of children, including section 10(1(b)) of the CYFSA that provides that children in care (as A.G. was at the relevant time) are entitled to speak in private with and receive visits from a lawyer. Although A.G.’s father was understandably upset by Ms. Ahmed’s refusal to break privilege and disclose A.G.’s location, the Court further commented that Ms. Ahmed’s exercise of privilege was reasonable and that neither she nor the JCFY had acted improperly or in a manner that justified interference with their providing advice to A.G.

In its closing remarks, the Court eloquently situated the role of independent legal counsel in ensuring children understand and are empowered to affect their individual rights and freedoms without over-empowering them or being disruptive to family law or child protection proceedings:

[75]    Empowering a child as an individual in a free and democratic society by according that child the right to consult with and obtain advice from a lawyer does not necessarily entail over-empowering that child in family law or protection proceedings. The effect could be quite the contrary: the child’s lawyer may explain to the child the child’s position, the respect that must be accorded to court orders, and the limited participation and rights that a child has in such cases. Of course, where a child is unhappy with a court’s disposition in a custody and access or protection proceeding, the lawyer may well be asked to give the child advice about what the child can do about it. We do not see that sort of empowerment as contrary to the interests of a child, but rather, as consistent with the child’s status as an individual with his or her own rights and freedoms.

Takeaways for Organizations Working with Children and Youth

In our role advising organizations who work with children and youth, we recommend noting the following takeaways from this important case regarding the rights of children and youth to independent legal advice:

  1. Children and youth are entitled to seek the advice of a lawyer;
  2. Children and youth do not need their parent’s or the court’s permission to seek the advice of a lawyer; and
  3. Courts may deny children and youth standing in family law and child protection proceedings under certain circumstances but should seek to preserve their right to independent legal advice.

 

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