Can a child whose parents are going through a Court proceeding in Family Division, either separation or divorce, have a lawyer? If so, who pays for the child to have a lawyer? Is the lawyer for the child separate from the lawyers for his or her parents?
All too often no one speaks about the possibility or the necessity that a child should have their own lawyer while their parents are going through a separation or divorce. Now I appreciate that to some parents this may sound outrageous or appear to be cost prohibitive. There is legislation that allows for the Court to appoint a lawyer for a child or children who is separate from each parent’s lawyer.
I was once hired to represent a 12 year old whose parents were in Court asking a judge to determine where he should live. Mom said he wanted to live with her and dad said he wanted to live with him. The lawyers for the parents contacted me and asked if I would represent the child. I agreed to do so and I was paid jointly by the parents. Parents do not always have to foot the bill for their child’s lawyer and if not, the obligation falls on the taxpayers of the province. My main role was to try to find out the child’s sincere wishes and capability to determine where he would wish to live. I went to the home he shared with his dad and I spent time getting to know him. It was a much different experience than when I represent a mother or father. He was an articulate teenager who convinced me that he truly knew where he wanted to live. I struggled with having to tell the parent who he did not want to live with that he did not want to live with them. My client, the teenager, had stressed to me that he did not want to hurt that parent’s feelings. As he wept in my presence he pleaded with me to make sure that I delivered the message softly as he did not want that parent to be mad at him or to feel that he did not love that parent. It was obvious to me that he felt in the middle and he was struggling with loyalty to each parent. I did not convey the news to either parent until a Court hearing where the judge asked me for the first time what my client’s wishes were. The child was not present in the courtroom. I stood up and informed the Court that the child wished to live with his dad and in that moment there was instant sobbing from the mother.
Although it was a hard day in Court emotionally, my job was to represent my client, the teenager, and to express his wishes to the Court. When I left the hearing that day, I never saw that child again nor did I have any further involvement in the file. I felt accomplished, however, because I took the time to get to know that child and I believed that his wishes were sincere.
I provide the above story to educate that children can have lawyers in Family Division when their parents are going through a separation or divorce. It is something that should be remembered as it may be important in your particular case if you are going through a Court proceeding. Lawyers who act for children can be their sounding board, their trusted confidant and one individual who can ensure that they access the appropriate resources if needed. A lawyer acting for a child is the one person who is not vying for loyalty or love. We are simply a professional there to represent their interests and advocate on their behalf. Remember, this is not just for families who have money to pay for a third lawyer. There is government funding for this and you may want to ask your lawyer if it applies or should be pursued in your case. It will not be granted in all circumstances and is not a “right”. It is a resource that may be available but many people do not know about it.
All for now,
