During difficult times of separation, children are sometimes placed in the midst of a family conflict. In any decisions directly involving a child, such as custody and access rights, children have the right to be heard by the courts, provided that their age and power of discernment permit them to express themselves. Some children even willingly express their interest to live with one parent over another.
In these instances, the courts cannot refuse to hear them. However, in order to allow children to better express their opinion, a lawyer may be nominated or appointed for them.
The nomination of a child’s lawyer is also useful in situations where each parent expresses a different version of the child’s desires, or when the conflict is so hostile that the parents lose sight of what is in the best interest of the child.
A parent may ask for the nomination of a lawyer to their child, a judge may appoint one of their own initiative, or the child may take the necessary measures to mandate one themselves if she/he has the necessary maturity to do so. The Quebec courts have not determined a specific age at which a child can decide to mandate a lawyer.
The nomination of a child’s lawyer allows the child to express to a neutral person his wishes, wants and needs with regards to his custody or access. Upon meeting with the child, the lawyer will reassure him but will also make him understand that each of his parents has a different perception of what is best for him.
When the examination of the case is complete, and the interviews have been completed, the child’s lawyer should communicate the child’s position, if any, to the other lawyers involved in the case in the form of a written report.
The role of the lawyer for the child will then be to convey to the court the child’s perception of what is best for him, even if this perception can differ from his parents. He must avoid inflaming the debate between the parties, and subsequently, reinforcing the discord between them. Therefore, a child’s lawyer indirectly acts as a mediator between the parties in order to promote the settlement of the dispute.
This means that the child’s lawyer should not express his opinion on what the best interest of the child is and should maintain a certain distance from the parents’ debate. The Court of Appeal has confirmed that it is more important for the courts to know the wishes of the child than to hear the opinion of the lawyer, especially if their opinion goes against the wishes of the child.
The child has no litigation to “win,” the debate belonging rather to the parents. The child’s lawyer should therefore keep in mind that all decisions involving children will be taken with their best interest in mind.
Jessica Zegarelli, Attorney-at-Law
Alepin Gauthier Avocats Inc.