THE VOICE OF THE CHILD IN DIVORCE, CUSTODY AND ACCESS PROCEEDINGS

2.4 The Three Models of Legal Representation for Children

Three models of legal representation for children have traditionally been relied upon by Canadian courts and practising lawyers.  They are the advocate, the litigation guardian and the amicus curiae.  In this section, a description of each of these models will be provided as well as a discussion of the advantages and disadvantages of the three approaches to child representation.

2.4.1 Amicus Curiae

The traditional interpretation of amicus curiae or "friend of the court" is a lawyer appointed by the court of equity to assist the court in an impartial exposition of the facts, the state of the law, and the interests of non-participants in court proceedings.[126]  The amicus curiae assumes a neutral position with respect to the outcome of the litigation.  The function of counsel is inquisitive; the allegiance of the amicus curiae is to the court and not to the litigants.[127]  Counsel is discharged with the responsibility of providing assistance to the court in the administration of justice.  The role of the amicus curiae is defined by the court in the particular proceedings.[128]

In the context of custody and access matters, the amicus curiae collects relevant evidence that might not otherwise be submitted to the court by the parent litigants to assist the judge in making a determination that is in the best interests of the child.[129]  Counsel has the responsibility to ensure that the court has before it a comprehensive account of the facts, including expert evidence, to counterbalance the potential "distorting" positions of the parents.[130]  Although the amicus curiae generally places the views of the child before the court as part of the evidence, counsel does not argue in favour of the child's position.  The amicus curiae usually expresses his or her assessment of the outcome of the matter based on the supporting evidence.[131]

Some judges, academics and lawyers take the position that the role of amicus curiae is not appropriate in custody and access cases, particularly when a child has the capacity to instruct counsel.  It is argued that the amicus curiae "does not institutionalize the importance of the child's voice in the process," but rather the "child is silenced."[132]  The child is precluded from directly expressing his or her preferences to the court and does not have the opportunity to challenge the recommendations of the amicus curiae.  As stated by the Alberta Institute of Law Research and Reform in Protection of Children's Interests in Custody Disputes,[133] "we do not think that the amicus curiae can properly be said to represent either the child's interests in any sense in which counsel usually represents a client or a client's interest." Granger J. in the Ontario Court General Division decision of Strobridge v. Strobridge[134] is critical of the role of amicus curiae in the context of custody proceedings:

The role of the amicus curiae in custody cases in an adversarial system is not consistent with representation of a child.  The amicus curiae has no obligation to ascertain the wishes of the child nor to present these wishes to the court.  The amicus curiae in effect is a court appointed expert, appointed to assist the court in the determination of the best interests of the child.  In a true adversarial system, the amicus curiae is an aid to the court rather than the representative of the child.

Some judges such as Abella J. and L'Heureux-Dubé J. assert that the role of amicus curiae is appropriate only in circumstances in which children do not have the capacity to instruct counsel or do not possess particular views on the issues that are the subject of the court proceedings.[135]  Judge Nasmith delineates the possible functions of the amicus curiae in such a situation:[136]

2.4.2 Guardian Ad Litem

A guardian ad litem, or litigation guardian, has the responsibility of taking the necessary measures to ascertain the best interests of the child and to present these findings to the court.[137]  This may take the form of soliciting expert testimony, submitting reports, and examining and cross-examining witnesses.[138]  The guardian ad litem is obliged to put forth evidence to ensure that the best interests of the child are protected.[139]

It is fundamental to note that it is the lawyer's views and not necessarily the child's preferences that are conveyed to the court, even in cases in which the child is capable of articulating a particular point of view.  A guardian ad litem may disregard a child's instructions if counsel is of the opinion that these instructions are not in accordance with the child's best interests.[140]  In other words, the lawyer's opinion may prevail over the child's view.

It is important to consider the Ontario Court of Appeal decision Strobridge v. Strobridge.[141]  Osborne J.A. held that counsel for a child cannot be both an advocate and a witness in custody and access proceedings.  Resort must be had to appropriate evidentiary means to put forth the views of the best interests of the child.  The lawyer may call expert witnesses to testify, file reports and make submissions on the evidence.  This judgment has been followed in several Ontario custody decisions including Zelinko v. Zelinko[142] and Punzo v. Punzo.[143]

The role of guardian ad litem has been criticized by some members of the legal profession.  It is argued that it is "unacceptable" for counsel not to advocate the position of a child who has the ability to express his or her views and preferences on a custody or access issue.[144]  As Mlyniec states in "The Child Advocate In Private Custody Disputes:  A Role In Search Of A Standard," a lawyer is not in a better position than a judge to assess the best interests of the child in a custody or access proceeding.[145]  In fact, some judges take the position that counsel who puts forth the best interests of the child is usurping the power of the bench.[146]  Commentators have asserted, however, that in cases in which a child is incapable of instructing counsel, it is appropriate for counsel to act in the role of litigation guardian and present evidence to assist the court in formulating the best interests of the child.[147]

2.4.3 The Advocate

The function of the advocate, the traditional role assumed by lawyers for adults, is to represent the legal rights and interests of his or her client.[148]  Lawyers do not judge the positions they are asked by their clients to advocate.[149]  Rather, the function of counsel is to present the client with options, to recommend a course of action, and then leave the ultimate decision to the client.  As explained in "The Legal Representation of Children:  A Consultation Paper prepared by the Quebec Bar Committee," lawyers must fulfill their role as counsel for children as they would for adult clients; they must explain the nature of the legal proceedings in question, the various steps in the process, and the consequences of choices advocated by their child clients.[150]

Although lawyers may suggest to their child clients that they re-evaluate their position, counsel is under an obligation to put forth the child's preferences and wishes on the principle that clients have the right to have the court hear and take under advisement their views on the particular legal issues.[151]  The advocate may examine witnesses, present written reports and cross-examine the witnesses of the litigants.  It is important to note that in presenting the evidence, the lawyer is prohibited from disclosing to the court his or her personal convictions respecting the disposition of the matters.  In other words, "the child's advocate must do everything ethically possible to advance his client's interests and to achieve the end result by that client regardless of the advocate's personal opinion of the merits of the child's wishes."[152]

Judges, academics and some provincial law societies have been vociferous in their views regarding the appropriate functions of counsel for children.  In 1981, the Law Society of Upper Canada released the Report of the Subcommittee of the Professional Conduct on the Legal Representation of Children.[153]  The Subcommittee took the position that in the absence of a specific legislative enactment, a traditional solicitor/client relationship should exist between a lawyer and a child.  According to the report "the child's voice should not be watered down by someone else's opinion of what is good for him, least of all by counsel appointed to represent him."[154]  The Ontario Subcommittee argued that it was inappropriate for a lawyer to disclose to the court information in his or her possession acquired in the course of the solicitor/client relationship that was contrary to the views and preferences of the child/client.  The report stated that the lawyer is not the judge of the best interests of the child and is not, in any circumstances, to be excused from a breach of the solicitor/client relationship.[155]

Members of the judiciary such as Nasmith J.,[156] L'Heureux-Dubé J. and Abella J.[157] as well as lawyers Alfred Mamo[158] and Judith Begley,[159] have endorsed the role of advocate for counsel who represent children.  This is because it gives the child a direct voice in the proceedings:  in a solicitor/client relationship the "rights of the child are not subverted" by counsel who put forth their views as to what is best for the child.[160]  It enables children to actively participate in proceedings that will profoundly affect them.  Moreover, such evidence is invaluable to the court which may otherwise be deprived of information that reflects the wishes of the children of the dissolved marriage.  Abella J. in Re W.[161] stated:

The child's advocate is the legal architect who constructs a case based on the child's views.

In its present form, that means that the child's lawyer should present and implement a client's instructions to the best of his or her ability.  And this, in turn, involves indicating to the court the child's concerns, wishes and opinions.  It involves, further, presenting to the court accurate and complete evidence which is consistent with the child's position.  And too, there is an obligation to ensure, in so far as this is possible given the age and circumstances of the child, that the opinions and wishes expressed by the child are freely given and without duress from any other party or person.

Judge Abella stated that although counsel must represent the wishes of the child, counsel may explore "with the child the merits or realities of the case, evaluating the technicalities of the child's position and even offering, where appropriate, suggestions about possible reasonable resolutions to the case."[162]

It is essential to note that the child's views alone do not determine the outcome of the decision, but rather form an important component of the evidence considered by the court.  As Begley writes:[163]

… the child's wishes are only one piece of evidence to be weighed by the judge in making the final determination, but it is extremely important that they be presented to the court as forcefully as possible in order that the child's voice be distinctly heard.

It is recommended that the child's advocate be appointed as early as possible in the proceedings.  Once appointed, counsel should have the same right to participate fully in any aspect of the proceedings as counsel for any other party.  This includes the right to attend the pre-trial, mediation sessions, to have discovery, to bring motions, to call and cross-examine witnesses, to make submissions and to appeal.[164]

An important question that arises regarding the solicitor/client relationship is whether a child has the capacity to articulate his or her preferences and wishes, and to instruct counsel.

2.5 Capacity of the Child to Instruct Counsel

It has been argued that the legal profession has taken a narrow approach to the capacity of children to instruct counsel.  As Thomson explains, if one takes the position that all children are not sui juris and if a difficult test of capacity is established, very few children will be afforded independent legal representation on a solicitor/client model.[165]  However, if (a) the legal system considers children as sui generis, (b) the same test of presumption of capacity used for adults is applied to children, and (c) a simple test of capacity is endorsed, more children in family law proceedings will be provided with lawyers who advocate the views and preferences of these young persons.[166]

A belief that has been gaining acceptance in recent years is the notion that more harm is caused to children by excluding their views in family law matters than by including them in the decision-making process.[167]  This position is reflected in "The Inchoate Voice" by Judge Nasmith, who argues that the legal system must:[168]

…err on the side of inclusion rather than exclusion of the children's views and preferences.  I wonder what is gained by arbitrarily defining areas for excluding children's preferences.  We may be falling back into some of the historical traps set for children.  What harm can it do to bring preferences forward even if their weight turns out to be relatively slight?  What is the fear?  The evidence is going to be weighed in the end along with other factors.  The child's preference is not necessarily determinative.  It is part of the evidence.

Several tests have been put forward as methods of assessing the capacity of the child to instruct counsel.  For example, Leon,[169] Bernstein[170] and Ramsey[171] argue that an age limit is an appropriate way to ascertain the capacity of a child.  Leon formulates a scheme consisting of rebuttable presumptions based upon the child's age in order to determine the type of legal representation the child receives.[172]  Bernstein asserts that a child who has reached the age of 12 should be deemed capable of instructing counsel.[173]  Ramsey, in her discussion of whether a child has the mental and emotional abilities required to make a decision which has a "rationale possibility of accuracy," states that a child who has attained the age of seven should be presumed capable of instructing a lawyer.[174]

Others argue that age is not a legitimate predictor of the maturity of the child or the ability of the child to instruct counsel.  As one author states, "the court should not be entitled to suppress the basic right of a child to be heard based upon an ambiguous age-based test for the competence of a child."[175]  Age is considered an unreliable gauge of capacity because children develop at different rates.  It is asserted that it is the capacity to understand and articulate one's thoughts, rather than the age of the children, which is relevant.[176]

The "rationality" of the child is another criterion relied upon to determine the ability of the child to instruct counsel.  According to David Day, who acted as amicus curiae to a five year old child in a custody case before the Supreme Court of Canada,[177] the following requirements must be met for counsel to act as an advocate for a child:[178]

The Law Society of Upper Canada stated the following in its 1981 report:[179]

A child may be deemed to have capacity where the child is mature and responsible enough to accept the consequences of his or her acts and decisions and can express a preference as to its resolution… One of the factors in making this decision would be the ability of the child to accept rationally the advice he or she is receiving.  If the child stubbornly, without reason refuses to accept the advice of counsel, it may be that the child lacks the maturity to properly instruct counsel.

Critics of these approaches argue that an assessment by a lawyer of the "rationality" of the child's instructions, is a "purely subjective and value-laden" endeavour.[180]  It is stated that the requirement that a child be able to formulate a "rational custodial preference" in order to be permitted to instruct counsel constitutes a "paternalistic" orientation to legal representation.[181]

An approach that recognizes and promotes children's rights in custody and access proceedings directs that children who have the ability to communicate their preferences, views or wishes, be granted the right to have a lawyer advocate those preferences.[182]  This is the sole yardstick for assessing a child's capacity to instruct counsel, according to proponents of such view.  As stated in the report of the Quebec Bar, even very young children have these capabilities.[183]  It is argued that children as young as four years old can communicate their views to a lawyer.[184]  According to Judge Nasmith, instructions from a four or five year old child "should not be sabotaged by a rationalization that they are not really instructions" unless the child is developmentally behind.[185]  He takes the position that departure from the "normal mouthpiece function of a legal advocate" is only appropriate when the child is unable or unwilling to state his or her views on issues of custody and access.[186]

Controversy remains as to the appropriate role of a lawyer whose client does not have the ability to instruct counsel.  Some take the approach that the lawyer should act as an amicus curiae to ensure that all relevant information is submitted to the court.  As one author writes, the directive of counsel who represents an incapable child is to ensure that the court reaches an informed decision.[187]  Others subscribe to the view that the appropriate function of the lawyer is that of a litigation guardian:  the duty of counsel is to present evidence to the court respecting the best interests of the child involved in a custody or access dispute.[188]

2.6  Solicitor/Client Privilege:  Confidential CommunicationsBetween the Child and Counsel

An issue that continues to be a subject of debate is whether it is appropriate for a lawyer to disclose to the court or third parties confidential information transmitted by the child/client.  The essential question to be addressed is should the rules which govern solicitor/client privilege for adults be applied with the same rigour to the child/lawyer relationship.

In Canada, relevant evidence is excluded from the courtroom as a result of the rules of privilege.[189]  As Professor Rollie Thompson explains "privilege rules serve to exclude highly reliable evidence on the basis that other social values, outside the judicial process are more important than truth-finding inside a courtroom."[190]  A question that arises in the context of custody and access cases is the legal or ethical obligation of a lawyer to reveal information from the child/client that she is, or has been, abused by a parent. What are the responsibilities of counsel in circumstances in which the child/client instructs the lawyer that he or she wishes to reside with his or her mother despite the fact that she is being physically or sexual abused by the mother's boyfriend?[191]  As Himel observes, "if the lawyer divulges information against the child's instructions, the solicitor-client relationship may be damaged forever."[192]

It is important to note that provinces throughout Canada have enacted child abuse reporting laws in their respective jurisdictions.  Pursuant to many of these statutes, professionals such as physicians, social workers, teachers and priests, have an obligation to report abusive acts to state authorities if they have reasonable grounds to suspect that the child is suffering or may have suffered abuse.[193]

According to the Rules of Professional Conduct in such provinces as Ontario, counsel are permitted, but not obliged, to disclose confidential information for the purpose of preventing the commission of a future crime.[194]  In other words, if a child/client instructs the lawyer that she wishes to reside with her father despite the fact that he sexually abuses the child, the lawyer may breach the child's confidence but is not ethically obliged to do so.[195]  The dilemma that arises is that although disclosure of the abuse will protect the child, divulging the confidential information may have serious adverse repercussions on the solicitor/client relationship.

It has been argued that even in situations in which a child may be in peril, the solicitor/client privilege must be respected.  Maczko states that if the privileged communication is n ot respected, children will be selective in the information they impart to their lawyers.  It is necessary to have a fully informed lawyer in order to act on the child's behalf.[196]  Maczko takes the position that the child's right to privileged communications with counsel should be established in legislation.[197]

Similarly, the Quebec Bar Committee in its report "The Legal Representation of Children" stated that a lawyer must respect communications made in confidence by the child, regardless of the child's age.[198]  The Committee argued that the relationship between the lawyer and the client will be undermined if the child cannot confide in counsel.  It took the position that it is in the child's interest that counsel be as fully informed as possible to provide proper representation to the client.[199]  Judge Andrews of the Ontario (Provincial) Court subscribes to the same view.  He argues that the privilege belongs to the child client; it is a breach of a lawyer's ethical responsibilities to violate the privilege without his client's full consent.  According to Judge Andrews, disclosure to third parties, of information imparted by the child to the lawyer could:[200]

…seriously undermine the child's view of the judicial system.  The child may come to feel that adults are imposing a decision and his or her point of view is not only unrepresented, but it is being subverted…  Thus, the child's stable development as a responsible citizen in a free society could be hampered by a sense of distrust toward society's institutions and professions.

Some practising members of the bar advise that the best approach to this dilemma is to encourage the child to disclose the abuse to third parties, such as a teacher, social worker or physician.  In this way, the child is protected and the solicitor/client privilege is not breached.[201]

2.7 Ensuring Quality Legal Representation for Children: Selection, Professional Training and Sources of Remuneration

In order to ensure quality legal representation, each province should develop criteria regarding the selection, training and remuneration of counsel for children.[202]  Some of the skills that must be acquired in the legal representation of a child are the ability to communicate with young people, comprehension of child psychology, possession of skills in interviewing children and knowledge of community resources.[203]  Lawyers must understand the stages of development of the child, be able to comprehend information conveyed by the child and possess the ability to communicate information to the child in simple and comprehensible language.[204]  It has been advocated, by some, that only lawyers with five or ten years experience should be permitted to act for children in family law proceedings.[205]

To ensure that the child is independently represented without the influence of adult parties, governments should absorb the legal expenses of counsel for the child.[206]  Children in custody and access cases, like young persons accused of crimes, should have access to legal aid.[207]  Private counsel retained by the parents does not satisfy the objective that child's counsel will act as a "mouthpiece" for his or her client.  As one author notes, "private counsel cannot effectuate a true representation of the child because counsel has an ultimate loyalty to his or her client."[208]

It has been recommended that an ombudsman for children,[209] or alternatively provincial Child Advocacy Offices, be responsible for informing children of their right to a lawyer, as well as assuming the important role of training lawyers to represent young persons.

2.8 Code of Ethics for Lawyers

The establishment of a code of ethics for lawyers representing children merits serious consideration.  Some provisions that have been suggested include the following:[210]