The Office of the Children’s Lawyer (OCL) is an independent law office operating within the Ministry of the Attorney General of Ontario that is there to protect the personal and property rights of children and youth under 18 in family law, civil litigation, and trust/estates matters. In the family law area, the OCL provides both legal and clinical services.
There are two different ways in which the OCL may become involved in a custody and access dispute. The Office is appointed by a judge’s order pursuant to sections 89(3.1) and 112 of the Courts of Justice Act. The OCL has the discretion as to whether it accepts the appointment by the judge. The OCL need not provide reasons for accepting or rejecting a custody and access matter; when it makes a decision it is usually either given as either a yes or no. The vast majority of children in the OCL’s custody and access caseload are usually in what can best be described as “high-conflict” families.
When the OCL accepts a referral in a section 89(3.1) Courts of Justice Act involvement, it assigns a lawyer to provide legal representation to a child or children. There are number of steps that legal counsel will take prior to advocating a position on behalf of its child client. These include several interviews with the client, speaking with the parents, and collecting information from various collateral sources, including schools, doctors, and the Children’s Aid Society, where that is relevant to the case. In taking a position on behalf of its client, OCL counsel will attempt to ascertain the views and preferences of the child or children and consider various factors, including:
- the independence, strength and consistency of the child’s views and preferences;
- the circumstances surrounding those views and preferences; and
- all other relevant evidence about the child’s interests.
After OCL counsel takes these steps to inform him or herself about the child’s wishes and relevant life circumstances, counsel identifies the position to be taken in the litigation on behalf of the child. That position is always disclosed to the parents prior to attending court during what is called a disclosure/settlement meeting. The parents and their legal counsel, if they have counsel, attend. In any custody and access case, the parties may reach an agreement at any stage, and when this happens OCL counsel will not continue with the litigation but may instead assist the parents and their counsel in crafting a settlement agreement.
If a settlement is not reached and the litigation proceeds to court, the OCL counsel will advocate the position on behalf of the child, and it is then the role of the judge to make the final “best interests” determination.At trial it is open to all parties to present evidence in support of his and her positions, including evidence that supports or contradicts that of the other parent or the OCL counsel. Once this has been done, and submissions have been made, the judge will ultimately make a decision regarding the child’s best interests.
In a section 112 Courts of Justice Act appointment, a clinician is assigned to investigate and prepare a report to the court. The clinician, who is not a lawyer but a social worker, follows essentially the same process as the OCL counsel, including interviewing the parents, the child or children, and obtaining information from the various, relevant collateral sources. The end result of a clinical investigation is different, however, in that a report is produced for the court, which is filed with the court, and is meant to assist the judge in determining what arrangements are in the best interests of the child. The judge then makes the ultimate decision. Unlike the position the OCL takes when it appoints counsel, the clinician may make recommendations that highlight what the clinician considers to be factors the court should identify when deciding the best interests of the child.