“The Children’s Lawyer is an independent statutory office holder appointed by Cabinet through the Lieutenant Governor. She derives her independent powers, duties and responsibilities through statute, common law and orders of the court.
Her fiduciary duties to the child require undivided loyalty, good faith and attention to the child’s interests, to the exclusion of other interests, including the interests of the child’s parents, the interest of the Crown and the interests of MAG. As stated by Abella J., as she then was, in Re W. (1980), 1980 CanLII 1958 (ON CJ), 27 O.R. (2d) 314 (Prov. Ct.), at p. 317, the Children’s Lawyer has an obligation to ensure that the views expressed by the child are freely given without duress.
The Children’s Lawyer not only represents the child’s interests; she provides a safe, effective way for the child’s voice to be heard. For her to do this, she must provide a promise of confidentiality. Children must be able to disclose feelings and facts to the Children’s Lawyer that cannot or will not be communicated to parents. Children’s interests can be averse to that of their parents. Feelings of guilt and betrayal that may influence a child require a safe person to speak to.
It is difficult enough for children to be the subject of litigation. For their voices to be heard, they must be guaranteed confidentiality when they say, “please, don’t tell my mom”, or “please, don’t tell my dad”.
To allow a disgruntled parent to obtain confidential records belonging to the child would undermine the Children’s Lawyer’s promise of confidentiality, inhibit the information she could obtain and sabotage her in the exercise of her duties. This would, in turn, impact proceedings before the court by depriving it of the child’s voice and cause damage to the child who would no longer be meaningfully represented. Finally, disclosure to a parent could cause further trauma and stress to the child, who may have divided loyalties, exposing the child to retribution and making the child the problem in the litigation.”