In early 2016, the CDLPA Family Rules Committee will consider the representation of children under the rules. I would like to ask for your input on this important question.
The issue recently arose in the case of C.M.M. v. D.G.C. and J.M. In that case, a teenaged child was represented by counsel and sought child support from her biological father. On a motion to the SCJ, the judge held that the child had to be represented by a litigation guardian as provided under the Rules of Civil Procedure. On appeal, the Divisional Court overturned that decision and held that the Family Law Rules cover the representation of children such that a child does not require a litigation guardian.
In a first Divisional Court decision, the panel held that a child is a special party under the Family Law Rules and that representation of a child is at the court’s discretion. When that decision was set aside due to a potential conflict, a second panel of the Divisional Court held that a child is *not* a special party under the rules and as a regular party can act on his or her own, be represented by a lawyer or be represented by some other appropriate person.
The case suggests that the representation of children under the Family Law Rules should be clarified.
In considering the issue of the representation of children under the Family Law Rules, the following questions arise:
- Should a child require a litigation guardian?
- If no litigation guardian is required, then
- Should a child always or presumptively require representation by a lawyer?
- Should legal representation be at the court’s discretion?
- Should the regular representation rule – rule 4(1) – apply such that the child may act in person, be represented by a lawyer, or be represented by a person who is not a lawyer, but only if the court gives permission in advance? Or
- Should the definition of “special party” be clarified so as to clearly include a child who is a party such that the protections afforded to special parties under the rules – court appointment of the Children’s Lawyer with that official’s consent, rule 4(3); special party’s withdrawal to be served on the Children’s Lawyer, rule 12; requirement of court approval for a conference agreement, rule 17 and for offer acceptance, rule 18(12) – apply.
4. Any other comments you may wish to provide on the representation of children under the Family Law Rules.
Definitions & Representation Rule under the existing Family Law Rules:
“child” means a child as defined in the Act governing the case or, if not defined in that Act, a person under the age of 18 years, and in a case under the Divorce Act (Canada) includes a “child of the marriage” within the meaning of that Act
“special party” means a party who is a child or who is or appears to be mentally incapable for the purposes of the Substitute Decisions Act, 1992 in respect of an issue in the case and who, as a result, requires legal representation, but does not include a child in a custody, access, child protection, adoption or child support case
4(2) Private Representation of Special Party - The court may authorize a person to represent a special party if the person is,
(a) Appropriate for the task; and
(b) Willing to act as representative.
I would be very grateful if you could please consult with your constituents and provide the committee with written comments by no later than December 17, 2015.
Written comments should be submitted to committee counsel: firstname.lastname@example.org.