“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.
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.
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 [Justice for Children & Youth] 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.
In fact, the [Child Youth and Family Services Act, 2017] CYFSA reinforces this view.
The preamble to the CYFSA states that children are “individuals with rights to be respected”.
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.
Children over the age of seven have a right to independent legal advice in adoptions.
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.
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.
The CYFSA’s reference to international human rights instruments also reinforces the rights of children to obtain independent legal advice.
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”.
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.
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.
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.
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.”
Justice for Children and Youth v. J.G., 2020 ONSC 4716 (CanLII) at 51-65