In family law, the common theme surrounding decisions with regards to kids is “what is in the best interests of the child(ren)?”
This fundamental principle is at the core of legislation central to making decisions about child support, child protection, custody, and access. In addition, the courts have also established that it is the most important factor in family disputes where kids are involved.
In addition to the above, the rights and interests children are also protected by a number of organizations, including the Office of the Children’s Lawyer and the Children’s Aid Societies of Ontario, who sometimes become involved on behalf of children in contentious family law matters.
The Office of the Children’s Lawyer
The Office of the Children’s Lawyer (“OCL”) is an independent law office within the Family Justice Services Division of the Ministry of the Attorney General in Ontario. The OCL represents children under the age of 18 in court for cases dealing with custody, access, and child protection. In addition, the OCL will also represent these children in civil litigation, estates, and trusts cases.
The OCL is comprised of both lawyers and social workers. The social workers, also known as clinicians, will prepare reports for the court and help lawyers who represent the children. The clinicians assist lawyers in custody and access cases that are difficult.
There are two legal areas that the OCL works in: property rights and personal rights, each encompassing a number of common legal disputes in which children and minors may be involved in.
Property Rights Disputes: Civil Litigation, Wills and Estates
Property rights disputes involving children include civil litigation and estates and trust litigation. When a minor is involved in any civil litigation, there must be an adult representative who takes the role of litigation guardian.
A litigation guardian is an adult who makes decisions on behalf of a child in a court case. The guardian is authorized by the Rules of Civil Procedure to take all the steps that the child would be able to take in the proceedings if the child were an adult. The litigation guardian must also protect the child’s interests in the proceedings and take all the necessary steps to protect those interests. The OCL becomes a litigation guardian when there is no parent, guardian, or other adult who would be willing and able to defend the claim. The OCL is a last resort in such situations.
In civil litigation cases, the OCL will do the following:
- Act as the litigation guardian of the child and provide legal representation when required to do so by law;
- Act as legal representative to a minor who is not a party of the litigation, but has an interest that requires protection; and
- Review proposed settlements involving children and contest them if necessary (if they are deemed to be not in the best interests of that child).
In family law matters, the OCL is likely to get involved in estate and trust cases, and can act for minors in a wide range of issues including:
- Will interpretation;
- Challenges to wills;
- Applications for the removal of trustees;
- Succession Law Reform Act proceedings for the support of dependants;
- Making variations of trusts; and
- Burdens of property belonging to minors.
Personal Rights: Divorce, Custody and Access, Child Protection
Personal rights disputes involving children usually relate to custody and access, as well as child protection. In contentious divorces, the OCL is often requested by the court to appoint either a legal representative or a clinical investigator (or both) to do the following:
- Represent children in custody and access proceedings (typically in divorces, and under the governance of the Children’s Law Reform Act and the Divorce Act);
- Meet with other professionals and individuals to discuss information relevant to the child. These include family members, psychologists, psychiatrists, social workers, school officials, and other persons who may have relevant information; and
- Negotiate a settlement where possible.
In child protection cases, the OCL provides legal representation for children in these proceedings. There are many reasons why children are in these proceedings, which are governed by the Child and Family Services Act. Sometimes its abuse or neglect; it could also be complicated and difficult cases of drug-addicted newborns. These children who are in these proceedings have been removed from their homes by the Children’s Aid Society, typically through court orders.
Children’s Aid Societies
The Ontario Association of Children’s Aid Societies (“OACAS”) concerns itself with enhancing and promoting the well-being of children, youth, and families.
There are 45 Children’s Aid Societies in Ontario, as well as 3 Aboriginal organizations who are members of this association. The OACAS provides the following services:
- Advocacy and government relations;
- Public education;
- Information and knowledge management; and
- Event planning.
The Children’s Aid Societies help to protect infants, children, and youth who may be experiencing abuse or are at risk of experiencing abuse. This includes physical, emotional, and sexual abuse, as well as neglect or abandonment. The vast majority of the Children’s Aid work is about protecting children and supporting their families in order for them to stay together. However, there are situations where the Children’s Aid must remove the children from unsafe environments and take them into its care. In 97% of the investigations done by the Children’s Aid Societies, the children or child remain in the home and the family receives supportive services.
The Children’s Aid Societies have a legal mandate that is set out in the Child and Family Services Act. The mandate states that the Children’s Aid Societies have the exclusive legal responsibility to provide child protection services 365 days a year, 24 hours a day. The Act requires Children’s Aid to do the following:
- Investigate any allegations or evidence that children who are under the age of 16, and are in need of protection;
- Protect children who are under the age of 16;
- Provide guidance, counselling, and other services to families for protecting children or for the prevention of circumstances requiring the protection of children;
- Provide care for children assigned to its care;
- Supervise children assigned to its supervision;
- Place children for adoption; and
- Provide protection for children who have been harmed or are at risk of being harmed.
Child custody, access, and child protection are very serious matters. The experienced and compassionate team of family lawyers at Borden Family Law is ready to help clients deal with the emotional rollercoaster that comes with determining what is best for your child or children. Our focused area of practice means our clients benefit from our in-depth knowledge of the ins and outs of the family law system, the technical legal rules governing family law matters, and trial strategy. We serve clients in Oshawa, Brooklin, and the surrounding areas. To see how we can help you resolve your issue, call us at 905.576.6090 or contact us below. Ask us about flat fees.