About the Office of the Children's Lawyer
The Office of the Children's Lawyer is a law office in the Ministry of the Attorney General which delivers programs in the administration of justice on behalf of children with respect to their personal and property rights.
Lawyers within the office represent children in various areas of law including child custody and access disputes, child protection proceedings and civil litigation.
Clinical investigators prepare reports for the court in custody/access proceedings and may assist lawyers who are representing children in such matters.
Property Rights Cases
The Office of the Children's Lawyer has lawyers on staff who represent minors (persons under 18 years of age) and unborn persons in property rights cases in the Greater Toronto area. The Office may hire a lawyer outside Metropolitan Toronto. Property rights cases include civil and estate/trust matters.
In civil cases minors (persons under the age of 18) cannot sue or be sued in their own name. A Litigation Guardian is necessary. A litigation guardian is a person who makes decisions for a minor in a court proceeding. The Children's Lawyer may be ordered by the court to act as Litigation Guardian for the child in cases where there is no parent, guardian or other adult willing and able to pursue or defend the claim. These cases consist mainly of personal injury actions.
The Office of the Children's Lawyer also reviews proposed settlements referred by the courts in cases involving minors. The Children's Lawyer assesses whether the proposed settlement is in the best interests of the child and reports to the court.
The Children's Lawyer is required to be served with an application for appointment of a guardian of minor's property under the Children's Law Reform Act (for information about guardianship applications for mentally incapable adults, you may link here to the Web site of the Public Guardian and Trustee.
The Children's Lawyer represents minor beneficiaries and unborn beneficiaries in estate and trust cases which include:
- challenges to the validity of a will;
- will interpretation applications;
- applications for removal of executors and trustees;
- claims for support under the Succession Law Reform Act;
- applications to vary a trust;
- division of property claims under the Family Law Act; and sale or mortgaging of minors' property
Under the Estates Act, the Children's Lawyer must be provided with estate and trust accounts that are presented to the court for approval where a minor or unborn person has a vested or future interest in the estate.
The Children's Lawyer does not have the authority to administer estates, nor to act as guardian of property for a minor.
Personal Rights Cases
The Office of the Children's Lawyer has lawyers, clinical investigators and articling law students on staff who represent children in personal rights cases. There are other lawyers and clinical investigators in private practice available throughout Ontario who work on behalf of the Children's Lawyer and are hired on a case-by-case basis.
Personal rights cases include child protection and custody/access matters.
Child Protection Cases
Protection proceedings in court occur when children may be in need of protection for many reasons, including abuse and neglect, and therefore may be removed from their families by the Children's Aid Society (or Family and Children's Services) through a court order. The Children's Aid Society, the child's parents or other caretakers usually have their own lawyers to represent them in court. In these cases, the court may request the appointment of an independent legal representative for a child under the Child, Youth and Family Services Act, 2017. This happens when the court believes a lawyer for a child is necessary to represent the child's interests in protection proceedings.
Child Custody and Access Cases
Court proceedings about child custody and access are usually between the child's mother and father. In most cases, the parents have lawyers who represent them in the case. Where there is a dispute before the court about the child's custody or access, a court may request the appointment of the Children's Lawyer under the Courts of Justice Act. This happens when the court requires independent information and representation about the interests, needs and wishes of the child who is the subject of the proceedings.
The Children's Lawyer's involvement in custody/access cases is to provide a legal representative (a lawyer) for the child or to prepare a report, or a combination of both.
The Children's Lawyer does not represent children in child support matters in custody/access cases. Visit the Family Responsibility Office Web site for information on child support matters.
Clinical Investigator Services
The Office of the Children's Lawyer has some clinical investigators on staff as well as other clinical investigators hired on a fee-for-service basis throughout Ontario, who prepare Children's Lawyer reports in custody and access cases. The clinical investigators use alternative methods of dispute resolution to try to help parents to resolve their dispute. If the dispute is not resolved by the parties, a Children's Lawyer Report is filed with the court.
Requesting the involvement of the Children's Lawyer in Custody and Access cases
After a court action about custody and access has begun, one or more of the parties (the applicant and respondent in the case) may request the appointment of the Children's Lawyer.
It is not necessary for parties to serve the Office of the Children's Lawyer (OCL) with a Notice of Motion and Pleadings for an order to appoint the Children's Lawyer in Ontario Court of Justice, Superior Court of Justice or Superior Court of Justice, Family Court cases.
Judges will consider the Intake Criteria before requesting, by order, the involvement of the Children's Lawyer in a case.
A printed form of the Order is available to every family law Judge. When the order is signed it will be forwarded immediately by one of the parties set out in the order (or by the court), by facsimile (416-314-8050) or mail to the Office of the Children's Lawyer.
As required in the order, within ten days, each party will complete a separate Intake Form and send it to the Office of the Children's Lawyer. The Intake Form itself is available in all courthouses.
Within three weeks of the date of the order, the Children's Lawyer will review the order and Intake Forms and notify the parties and the court (by facsimile or mail) whether the Children's Lawyer consents to become involved in the case and, if so, the type of professional service that will be provided.
The types of professional services that may be delivered are:
- Legal Representation - A Lawyer will be assigned.
- Children's Lawyer Report - A clinical investigator will be assigned.
Legal Representation with a Clinical Investigator
- Both a lawyer and clinical investigator will be assigned at the beginning if there are serious clinical and legal issues requiring an expeditious response, e.g. murder/suicide, mobility, etc., or,
- After the case has been assigned to the lawyer, a clinical investigator will be assigned if there are specific serious clinical concerns that need to be addressed in order to assist the lawyer in representing the interests of the child client at any settlement meeting or in court.
- "Summary" Legal Representation or Children's Lawyer
The lawyer or clinical investigator will be instructed to deliver, in a summary way, a time limited service and to report to the parties and the court either by way of submissions (lawyer) or by a short Report (social worker) about what, if anything, has been accomplished to advance the interests of the child client towards a resolution or court order.
- Lawyer Assisting Clinical Investigator
A lawyer will be assigned to assist a clinical investigator who is preparing an OCL Report when the social worker needs legal advice and guidance in special circumstances, e.g. evidence, interpretation of documentation, legal procedures, etc. Please note that the lawyer will not be the legal representative of the child under s.89(3.1) of the Courts of Justice Act.
NOTE: Except in special circumstances, legal representation and a Children's Lawyer report of the OCL will NOT be provided simultaneously.