Law Times

PAGE 14 FOCUS February 7, 2011 • Law Times Courts struggle with how to hear children's views S BY JUDY VAN RHIJN For Law Times ix Superior Court orders that forced the Ontario children's lawyer to repre- sent children in diffi cult custo- dy cases have been overturned and fresh scrutiny given to the courts' parens patriae jurisdic- tion and the legislative scheme that provides for children to be heard. In issuing the rulings, the Ontario Court of Appeal has recognized there's a practical gap in the ability to bring children's views before the court and pro- voked discussion on other ways to introduce a child's voice into the proceedings. In Bhajan v. Bhajan, the appeal court found Justice Victor Paisley shouldn't have circumvented the existing statutory structure for engag- ing the Offi ce of the Children's Lawyer. It found the offi ce is in the best position to decide when and how to use its lim- ited resources and that if judges were allowed to force it to act, it would open the fl oodgates so it would be unable to perform its function. Garry Wise, principal of Inside you will find: • an up-to-date alphabetical listing of more than 57,000 barristers, solicitors and Quebec notaries, corporate counsel, law firms and judges in Canada; • contact information for the Supreme Court of Canada, the Federal Court of Canada, Federal Cabinet Ministers, departments, boards, commissions and Crown corporations; • legal and government contact information related to each province for the Courts of Appeal, Supreme Courts, County and District Courts, Provincial Courts, law societies, law schools, Legal Aid, and other law-related offices of importance. 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Hardbound with CD-ROM • Approx. 350 pp. • March 2011 • Approx. $125 • P/C 0457010004 ISBN 978-0-88804-518-8 Visit canadalawbook.ca or call 1.800.565.6967 for a 30-day no-risk evaluaion Prices subject to change without notice, to applicable taxes and shipping & handling. CANADA LAW BOOK® LT0207 www.lawtimesnews.com Wise Law Offi ce in Toronto, says the reality is that the ad- ministration of justice is suf- fering a fi nancial crunch. "Th e [Offi ce of the Children's Law- yer] is unable to meet the huge number of cases submitted to it for consideration. Th e judge tried to bypass the [offi ce's] administrative triage in order to get attention to cases that he thought were high prior- ity. Th e appellate court found there was no inherent jurisdic- tion to do this because parens patriae only exists if there is a legislative gap, and here the legislation completely provides a full procedure." Professor Nicholas Bala of the Queen's University Faculty of Law believes the appeal court was correct. "In this environ- ment, someone must play the gatekeeper role. Th e legislature intended that it should usually be the children's lawyer." Alf Mamo of McKenzie Lake Lawyers LLP in Lon- don, Ont., says the whole is- sue about the children's lawyer being forced to act is still very much a question of policy that needs to be addressed. "Th e budget would go through the roof if they took every custody case. On the other hand, there 'The budget would go through the roof' if the children's law- yer took every custody case, says Alf Mamo. needs to be some protocol bet- ter than the current system." Mamo proposes earlier in- tervention in cases by the of- fi ce. "By the time the request is made, the forms fi lled out, and the administration done, so much poison has gone into the well that it's much tougher to clean up. Th e [offi ce] needs to be involved at the front end." He suggests that a member of the panel at the Offi ce of the Children's Lawyer be pres- ent at the case conference level as a sort of children's lawyer duty counsel. "If the court can schedule cases that are going to be contentious for custody and access to have their case con- ference on a certain day, and if the children's lawyer is avail- able and briefed on the criteria for representation, a number of things could happen. If the family qualifi es for full repre- sentation, the children's lawyer can get the information on the spot and speed up the process immensely. Th ey can also act as a catalyst and suggest how the case could proceed, even if they are not going to be further in- volved, giving guidance to par- ents and the judge on what can be done." Without this intervention, many people are asking what recourse judges have if they don't have the voice of the child as is called for by social science research and the Unit- ed Nations Convention on the Rights of the Child Article 12, which requires that in appro- priate circumstances children be aff orded a voice in proceed- ings aff ecting them. Bala says there are a number of diff er- ent ways a child's voice can be heard, from interviews with a social worker or psychologist to being represented by law- yers. "Th e method will vary ac- cording to a number of factors: the age of the child, the nature of the case, and the resources available, but there must be two important caveats. Th ey have a voice but not a choice. Th ey are not put on the spot to say who they want to live with but if they wish to express a choice, it should be permitted." Th is argument resonates in the role of legal counsel for a child. If a child is to have legal See Ontario, page 15

• Cover
• Helping Kids
• Scrutinizing Experts
• Focus On Family Law/Trusts & Estates