Can my children get a lawyer?
The Office of the Children’s Lawyer (sometimes referred to as an “OCL”) may be asked to become involved in any custody or access disputes pursuant to sections 89(3.1) or 112 of the Courts of Justice Act. The Office of the Children’s Lawyer is usually appointed to provide the children with a voice. Though lawyers can be independently retained by a parent to act for children, the Court is typically not in favour of this approach as the privately retained lawyer may appear to be biased towards the parent paying the bill.
Contrary to popular belief, children are not automatically provided with a lawyer. On motion or application, the Court must consider whether or not the Office of the Children’s Lawyer should act for the subject children. There are numerous factors that the Court must consider, primarily relating to the Office of the Children’s Lawyer intake criteria, mentioned further below.
If the Office of the Children’s Lawyer is appointed by a Judge, their involvement is not guaranteed. Both of the aforementioned sections in the Courts of Justice Act relating to the involvement of the Office of the Children’s Lawyer use the word “may”, thus providing the Office of the Children’s Lawyer discretion as to whether or not they will act. There is a comprehensive intake process after the Court orders for the involvement of the Office of the Children’s Lawyer. This intake process considers numerous factors, including but not limited to the current access arrangements and the amount of time since the last custody and access assessment. It should be noted that the Office of the Children’s Lawyer typically does not act if there is an order prohibiting one party from receiving access to the subject children as the investigation requires observational access visits. Likewise, the Office of the Children’s Lawyer will typically not become involved if a custody or access assessment has been completed within one year of the request.
If and when appointed, it is not always an actual lawyer appointed to represent the children. It is not uncommon for the Office of the Children’s Lawyer to appoint a clinical investigator, such as a social worker, to represent children.
In general, a clinical investigator is appointed when the children are very young and unable to clearly articulate their views and preferences and when there is a need for an investigator to review and carefully look into the history and other factors of the family. Similarly, a lawyer would be appointed when the children are older and when the children are in a position to articulate their views and preferences.
The investigation process can be quite lengthy, but ultimately, the Office of the Children’s Lawyer will serve and file a report detailing their recommendations and the reasons for same. The parties are then each provided with thirty (30) days to file a dispute. Thereafter, the Office of the Children’s Lawyer will have one final opportunity to reply. The report completed by the Office of the Children’s Lawyer is filed in the continuing record and becomes evidence of the court.
At trial, one can actually subpoena the clinical investigator to provide evidence. However, if a children’s lawyer has been appointed, then for purposes of trial, the children’s lawyer will request the appointment of an investigator to represent his or her position at trial on the witness stand. In other words, a children’s lawyer cannot be directly cross-examined by the parties. Only an investigator may be examined and cross-examined at trial.
If you are going through a custody and/or access dispute and are considering the involvement of the Office of the Children’s Lawyer, contact us at Shankar Law. We offer legal services in Bruce, Grey and Huron counties, including Port Elgin, Southampton, Owen Sound, Meaford, Wiarton, Hanover, Walkerton, Markdale, Walkerton, Goderich, among other places. WE ARE HERE TO HELP!