Jewish Family and Child Services of Greater Toronto v. J.K., 2014 ONCJ 792

WARNING The court hearing this matter directs that the following notice be attached to the file: This is a case under

Part III of the Child and Family Services Act and is subject to one or more of subsections 48(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act , which deals with the consequences of failure to comply, read as follows: 45.—

(7) Order excluding media representatives or prohibiting publication. — The court may make an order, . . . (

c) prohibiting the publication of a report of the hearing or a specified part of the hearing, where the court is of the opinion that . . . publication of the report, . . ., would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding.

(8) Prohibition: identifying child. — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child's parent or foster parent or a member of the child's family.

(9) Idem: order re adult. — The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part. . . . 85.—

(3) Idem. — A person who contravenes subsection 45(8) or 76(11) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(

c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both. ONTARIO COURT OF JUSTICE CITATION: Jewish Family and Child Services of Greater Toronto v. J.K. , 2014 ONCJ 792 DATE: 2014-11-25 COURT FILE No.: Toronto 60417-13 BETWEEN: Jewish Family and Child Services of Greater Toronto, Applicant, — AND — J.K. and S.K., Respondents.

Before Justice C.J. Jones Heard on September 4, 2014 Reasons for Decision released on November 25, 2014 Ms. H. Gaber Katz ................................................................. counsel for the applicant society Mr. P. Pellman ............................................................................ counsel for the respondent(

s) Ms. M. Birdsell …………………………………………….legal representative for the child, R.K., ....................................................................................................... Justice for Children and Youth C.J. JONES, J.: [ 1 ] This is a motion made by the parents in a child protection proceeding, seeking to have Ms. Samira Ahmed removed as the child’s legal representative in the proceeding. The child, R.K., who was born on […], 1999, and who is almost sixteen years of age, opposes the motion.

The applicant society (also referred to as “the society” or “the agency”) did not take a position in relation to the relief sought. [ 2 ] The child has been in the care of the society since February 20, 2013, pursuant to a temporary order granted on that date. The respondents are the child’s adoptive parents, the father, Mr. J.K. and the mother, Ms. S.K. [ 3 ] The background facts are as follows. At the time the February 20, 2013 temporary order was granted placing the child in the care of the society, an order was made, pursuant to

section 38 of the Child and Family Services Act , for independent legal representation for the child in the proceeding. [ 4 ] For some time prior to the commencement of the child protection proceeding, the child had been receiving legal advice from a staff lawyer, Ms. Samira Ahmed, from Justice for Children and Youth (also referred to as “JCY”), a legal clinic providing legal assistance and representation to children and youth. [ 5 ] As a term of the Order of February 20, 2013, the child was given the option of electing to have legal representation through JCY or through the Office of the Children’s Lawyer.

The child filed an election with the court, confirming her preference to have Ms. Ahmed from JCY act as her legal representative in this proceeding. [ 6 ] The child has significant needs and a number of diagnoses. The child struggles with mental health issues and as a result, has faced social, academic and behavioural challenges over a long standing period. It has been reported that the child has exhibited symptoms of an attachment disorder, as well as attention deficit hyperactivity disorder, a non-verbal learning disorder with processing deficits, and signs of an emerging borderline personality disorder [1] .

The child has a history of high risk behaviour and self-harm gestures. The child requires a treatment placement, as a result. [ 7 ] There are ongoing difficulties in the child’s relationship with her parents. Through-out the course of this litigation, the child has articulated an unwillingness to return to the care of her parents, and an opposition to having her parents direct her placement or treatment decisions [2] . The child has consistently expressed a wish to remain in the care of a child protection agency and has opposed the plans proposed by her parents for her care [3] .

At various points in time, the child has also expressed opposition to the society’s plans pertaining to her placement or treatment. [ 8 ] At several stages in the litigation, the child has expressed a position that differs from those of either her parents or the society. The child’s legal representative has participated in the court proceedings in an advocacy role. Counsel has filed evidence on the child’s behalf, has taken a position and has made submissions on the issues in the proceeding on behalf of the child, including submissions as to the child’s views and wishes, based upon the evidence filed.

POSITIONS OF THE PARTIES : [ 9 ] The parents rely on two affidavits of the mother in support of their motion, namely her affidavits sworn July 7, 2014 and July 30, 2014 [4] . The child relies upon the previously filed affidavits of the children’s services worker, Ms. Keren Wisniewski sworn February 10, 2014, the child’s affidavit sworn April 3, 2014, and the affidavits of the family services worker, Ms. Samara Miller sworn July 3, 2014 and July 23, 2014. [ 10 ] The parents submit that there are several bases for their claim that the child’s legal representative should be removed: (

a) The parents contend that the child lacks the capacity to instruct counsel. They argue that, on this basis, Ms. Ahmed is unable to act as the child’s legal representative pursuant to the appointment made under

section 38 of the Act ; (

b) The parents assert that the role of Ms. Ahmed, as legal representative for the child, is one of amicus curiae , or friend of the court, and that the child’s legal representative has exceeded her role;

(

c) The parents take the position that the child is a party to the proceeding and that she should be found to be a “special party” pursuant to the Family Law Rules [5] , (also referred to as “the Rules”) . They maintain that a litigation guardian should be appointed for the child; (

d) The parents submit that the evidence and submissions put to the court of the child’s views and wishes are not those of the child, but represent those of Ms. Ahmed, as the child’s legal representative. The parents assert that the child’s legal representative has become a witness in the proceeding; (

e) The parents suggest that confidential information obtained by the child’s legal representative, in the course of her representation of the child, has been misused; (

f) The parents take issue with the fact that Ms. Ahmed has not followed the same protocol set out by the Office of the Children’s Lawyer for their staff lawyers or legal agents who represent children in either custody and access cases or in child protection proceedings. In particular, the parents state that Ms.

Ahmed has never met with them to ascertain their concerns and obtain their perspective on the issues before the court; [ 11 ] The child’s legal representative argues that there is no legal foundation for the motion, and further, that the evidence filed on the motion does not support the relief sought by the parents. It is the submission of child’s counsel that the mother’s affidavits contain serious allegations with no supporting evidentiary basis. [ 12 ] Counsel on behalf of the child also takes issue with the relevance, admissibility and reliability of the mother’s affidavit evidence filed on the motion.

Further, counsel submits that Ms. Ahmed, the child’s legal representative, is discharging her obligations in a dedicated, skilled and professional manner. THE LAW : [ 13 ]

Section 38 of the Child and Family Services Act [6] , (referred to as “the Act”) provides statutory authority for the appointment of a legal representative for a child who is the subject of a child protection proceeding. The relevant portions of the

section reads as follows: “ Legal Representation “Legal representation of child” 38. (1)A child may have legal representation at any stage in a proceeding under this Part. “ Court to consider issue ” (2)Where a child does not have legal representation in a proceeding under this Part, the court, (

a) shall, as soon as practicable after the commencement of the proceeding; and (

b) may, at any later stage in the proceeding, determine whether legal representation is desirable to protect the child’s interests. “ Direction for legal representation ” (3)Where the court determines that legal representation is desirable to protect a child’s interests, the court shall direct that legal representation be provided for the child. “ Criteria ” (4)Where, (

a) the court is of the opinion that there is a difference of views between the child and a parent or a society, and the society proposes that the child be removed from a person’s care or be made a society or Crown ward under paragraph 2 or 3 of subsection 57 (1); (

b) the child is in the society’s care and, (

i) no parent appears before the court, or (ii) it is alleged that the child is in need of protection within the meaning of clause 37 (2) (a), (c), (f), (f.1) or (h); or (

c) the child is not permitted to be present at the hearing, legal representation shall be deemed to be desirable to protect the child’s interests, unless the court is satisfied, taking into account the child’s views and wishes if they can be reasonably ascertained, that the child’s interests are otherwise adequately protected. ” ………………… [ 14 ] Sub-sections 39 (1), (4), (5) and (6) of the Act define the necessary parties to a proceeding and address issues of notice and

standing, in relation to a child who is the subject of the proceeding. These sub-sections read as follows: “ Parties and Notice “ Parties ” 39. (1)The following are parties to a proceeding under this Part: 1. The applicant. 2. The society having jurisdiction in the matter. 3. The child’s parent. 4. Where the child is an Indian or a native person, a representative chosen by the child’s band or native community. ………….. “ Child twelve or older ” (4)A child twelve years of age or more who is the subject of a proceeding under this

Part is entitled to receive notice of the proceeding and to be present at the hearing, unless the court is satisfied that being present at the hearing would cause the child emotional harm and orders that the child not receive notice of the proceeding and not be permitted to be present at the hearing. “ Child under twelve ” (5)A child less than twelve years of age who is the subject of a proceeding under this

Part is not entitled to receive notice of the proceeding or to be present at the hearing unless the court is satisfied that the child, (

a) is capable of understanding the hearing; and (

b) will not suffer emotional harm by being present at the hearing, and orders that the child receive notice of the proceeding and be permitted to be present at the hearing. “ Child’s participation ” (6)A child who is the applicant under subsection 64 (4) (status review), receives notice of a proceeding under this Part or has legal representation in a proceeding is entitled to participate in the proceeding and to appeal under

section 69 as if he or she were a party.” [ 15 ] Sub-section 39 (1) of the Act defines the persons who are parties to the proceeding by statute. This list does not include the child who is the subject of the proceeding. Sub-section 39 (4) of the Act extends the rights of notice and participation in a child protection proceeding to a child who is twelve years of age or older.

This sub-section is contrasted with sub-section 39 (5), applicable to a child under twelve, who is not accorded the same rights, without further inquiry and order of the court. [ 16 ] By sub-section 39 (6) of the Act , a child who is entitled to notice of a proceeding, or a child who has legal representation in a child protection proceeding is entitled to participate in the proceeding as if she were a party (emphasis added).

The latter sub-section extends standing to such a child to participate in the proceeding, although the sub-section does not transform the child’s status to that of a party. [ 17 ] The non-party status of a child who is the subject of a child protection proceeding is reinforced by the provisions of sub- rule 2(1) of the Family Law Rules in relation to the definition of a “special party” and in sub- rule 7 (2) , in relation to parties to a motion. These sub-rules read as follows: “ Rule 2 (1).

Definitions : In these rules, ………………. “special party” means a party who is a child or who is or appears to be mentally incapable for the purposes of the Substitute Decisions Act, 1992 in respect of an issue in the case and who, as a result, requires legal representation, but does not include a child in a custody, access, child protection, adoption or child support case ;” (emphasis added); ………………. “ Rule 7 (2). Who Are Parties — Motion

(2) For purposes of a motion only, a person who is affected by a motion is also a party, but this does not apply to a child affected by a motion relating to custody, access, child protection, adoption or child support .” (emphasis added);

[ 18 ] Sub-section 37 (3) of the Act sets out a non-exhaustive list of criteria to be considered by the court, in making a determination under the Act , in a child’s best interests. One of the factors to be considered is the child’s views and wishes [7] . Section 37 (3) reads as follows: “ Best interests of child 37.

(3) Where a person is directed in this Part to make an order or determination in the best interests of a child, the person shall take into consideration those of the following circumstances of the case that he or she considers relevant: 1. The child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs. 2. The child’s physical, mental and emotional level of development. 3. The child’s cultural background. 4. The religious faith, if any, in which the child is being raised. 5.

The importance for the child’s development of a positive relationship with a parent and a secure place as a member of a family. 6. The child’s relationships and emotional ties to a parent, sibling, relative, other member of the child’s extended family or member of the child’s community. 7. The importance of continuity in the child’s care and the possible effect on the child of disruption of that continuity. 8.

The merits of a plan for the child’s care proposed by a society, including a proposal that the child be placed for adoption or adopted, compared with the merits of the child remaining with or returning to a parent. 9. The child’s views and wishes, if they can be reasonably ascertained. 10. The effects on the child of delay in the disposition of the case. 11. The risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent. 12. The degree of risk, if any, that justified the finding that the child is in need of protection. 13.

Any other relevant circumstance .” [ 19 ] The child’s views and wishes are but one factor relevant to the determination of the child’s best interests. They are not determinative of any issue before the court. It is for the court to establish the weight to be given to the child’s views and wishes, in making a decision under the Act . The Law: Role of Child’s Legal Representative : [ 20 ]

Section 38 of the Act specifically provides for the appointment of a legal representative for a child [8] . The role of the child’s legal representative in a child protection proceeding is to protect the child’s interests [9] . There are many elements relevant to a child’s legal interests in a child protection proceeding.

The child’s views and wishes pertaining to the issues before the court, if they can be ascertained, should be part of the consideration of the child’s interests [10] . [ 21 ] The appointment of counsel for the child provides an opportunity for the child to have a voice in the plans to be presented for her care and in the other matters to be determined in the proceeding. There are many different means that may be used to present evidence to the court of a child’s wishes.

Such evidence may be available through an affidavit or the testimony of a social worker or other neutral professional who has interviewed the child [11] . Evidence of the child’s views and wishes may be placed before the court in other alternate forms. [ 22 ] In many cases, the parties will agree that counsel may informally advise the court of a child’s preferences, without the need for sworn evidence. The child’s wishes may also be conveyed in this manner by child’s counsel at a conference.

However in the absence of consent, at a trial or motion, the child’s views and wishes should be presented to the court through appropriate evidentiary means [12] .

At a contested motion or trial, if there is no consent, it is not appropriate for child’s counsel to give his or her unsworn evidence from counsel table, as counsel cannot be both a witness and advocate in a proceeding. [ 23 ] The child’s legal representative may take a position on behalf of the child in the proceeding and may make submissions in support of the child’s position, including submissions referencing the evidence of the child’s views and wishes pertaining to the issues before the court. [ 24 ] There is an important distinction to be made in the role of the child’s legal representative in making submissions in support of the child’s position based on the evidence, on the one hand, and giving evidence of the child’s wishes from the counsel table, without the appropriate evidentiary foundation, on the other.

The former is an example of appropriate advocacy on behalf of a child. The latter is not permissible, absent consent, at a contested motion or trial. [ 25 ] It is not essential to the appointment of a legal representative for a child under

section 38 of the Act , that the child be capable

of providing instructions to counsel [13] . Thus, a legal representative may be appointed under the Act for a child who is severely developmentally delayed or even non-verbal [14] . [ 26 ] For a non-verbal child who is unable to communicate wishes, the position that will be formulated on behalf of the child by his or her legal representative will be based upon other factors relevant to the child’s interests, other than the child’s wishes. [ 27 ] Legal representation under

section 38 of the Act may be ordered for a child of any age who is the subject of a child protection proceeding. Legal representation is not limited to children who have the capacity to understand the hearing. This is verified by the terms of the statute itself. Where a child is under the age of twelve years, the child is not generally permitted to be present at the hearing in a child protection proceeding. In those circumstances, pursuant to section 38 (4) (

c) of the Act , legal representation is deemed to be desirable to protect the child’s interests unless the court is satisfied that the child’s interests are otherwise adequately protected [15] . [ 28 ] The role of the child’s legal representative may properly include taking a position on behalf of the child, leading evidence, cross-examining witnesses and making submissions to the court on the factual and legal issues before the court [16] .

If the child’s wishes can be ascertained, child’s counsel will also be tasked with the responsibility of ensuring that the child’s views are placed before the court through admissible evidence. [ 29 ] It is an aspect of the role of child’s counsel to assess the strength, independence and consistency of his or her child client’s wishes.

If those views have been strongly and consistently expressed over time, without influence from the other parties or other interested third parties, the position taken by a child’s legal representative may mirror the child’s articulated views and wishes pertaining to the matters in issue, particularly in the case of an older child. [ 30 ] When an order is made under

section 38 of the Act, appointing a legal representative for the child, such representation is often provided through the Office of the Children’s Lawyer. Nevertheless, there is no statutory prohibition that would prevent the court from appointing qualified legal representation for a child, apart from the OCL [17] . [ 31 ] There must be compelling grounds for the removal of counsel for a party or a legal representative for a child or person with standing in a proceeding, at the instance of another party [18] .

Such grounds may include, for example, a conflict of interest [19] such as may occur should the lawyer for one party receive confidential information relating to the current litigation from an opposing party [20] , or a breach of a duty of loyalty to a client [21] .

The issue is whether a fair-minded reasonably informed member of the public would conclude that the proper administration of justice required the removal of the solicitor [22] . [ 32 ] The onus or burden of proof with respect to a motion to remove the child’s legal representative rests upon the parents, as the moving parties [23] . [ 33 ] There is no statutory statement as to the duties and responsibilities of lawyers who are appointed to be the legal representatives of children in child protection matters [24] .

It is not appropriate to remove the child’s legal representative, based on the position taken by counsel on behalf of the child [25] . The fundamental question is whether it serves the interests of the child to remove her counsel as her legal representative in the proceeding [26] . The Law: Evidence on a Motion : [ 34 ] The Family Law Rules address the manner in which evidence may be given on a motion, as well as the content and admissibility of such evidence. Evidence on a motion is commonly submitted by affidavit. The best evidence is always the first-hand evidence of the deponent.

The Family Law Rules address the admissibility of evidence obtained from a second-hand source. Rules 14 (17) - 1 , 14 (18) and 14 (19) read as follows: “ EVIDENCE ON A MOTION ” “ Rule 14 (17). Evidence on a motion may be given by any one or more of the following methods: 1. An affidavit or other admissible evidence in writing. ……………….. “ AFFIDAVIT BASED ON PERSONAL KNOWLEDGE ” Rule 14 (18). An affidavit for use on a motion shall, as much as possible, contain only information within the personal knowledge of the person signing the affidavit. “ AFFIDAVIT BASED ON OTHER INFORMATION ”

(19) The affidavit may also contain information that the person learned from someone else, but only if, (

a) the source of the information is identified by name and the affidavit states that the person signing it believes the information is true; and (

b) in addition, if the motion is a contempt motion under rule 31, the information is not likely to be disputed. ”

[ 35 ] Thus, evidence on a motion may be given by affidavit, which shall, as much as possible, contain only information within the personal knowledge of the person signing the affidavit. If the affidavit contains information that the deponent learned from someone else, the source of the information must be identified by name and the affiant must confirm that he or she believes the information to be true. [ 36 ] A lawyer ought not to appear as both a witness and an advocate in a case.

Where it appears clearly or by inference that a lawyer is the source of the information and belief of a deponent in an affidavit submitted as evidence on a motion, then that lawyer should not be appearing as counsel to make submissions on the motion, unless the evidence pertains to matters which are mere formalities or uncontroverted [27] . [ 37 ] Lawyers are officers of the court and their conduct in legal proceedings is subject to the supervisory jurisdiction of the court, where such conduct may affect the administration of justice.

Rule 5.1-1 of the Rules of Professional Conduct of the Law Society of Upper Canada describes the lawyer’s relationship to his or her client.

The text of the Rule reads as follows: “ Rule 5.1-1 When acting as an advocate, a lawyer shall represent the client resolutely and honourably within the limits of the law while treating the tribunal with candour, fairness, courtesy and respect. ………………………. [ 38 ] The lawyer’s relationship to the administration of justice is addressed in Rule 5.2-1 of the Rules of Professional Conduct: “ Rule 5.2-1 A lawyer who appears as advocate shall not testify or submit their own affidavit evidence before the tribunal unless

a) permitted to do so by law, the tribunal, the rules of court or the rules of procedure of the tribunal,

b) the matter is purely formal or uncontroverted .” [ 39 ] An expression of a professional standard in a code of ethics, as it relates to a matter before the court, should be considered an important statement of public policy [28] . EVIDENCE OF THE PARTIES : [ 40 ] On a contested motion, there is a direct relationship between the reliability of the evidence tendered by a party and the weight to be placed upon such evidence by the court. [ 41 ] Counsel on behalf of the child submits that the affidavit evidence submitted on behalf of the parents is objectionable on a number of grounds. Child’s counsel asserts that the affidavits: (

a) Include assertions that are irrelevant, and have no probative value to the relief sought on the motion; (

b) Contain allegations against the child’s legal representative that are unreliable, baseless and unsubstantiated; (

c) Include statements that are not possibly within the sphere of knowledge of the parents; (

d) Include significant portions that are hearsay or are otherwise inadmissible in evidence on the motion; (

e) In the alternative, if such portions are admitted into evidence, should be accorded little or no weight. [ 42 ] A review of the content of the two affidavits relied upon by the parents confirm that these submissions are accurate, with respect to large portions of these documents. Irrelevant statements, having no probative value to the claim made on the motion occur through-out the affidavits [29] . [ 43 ] The affidavits filed on behalf of the parents include numerous allegations against the child’s legal representative that are unsubstantiated by any reliable evidence.

Many of these assertions are mere speculation, with no apparent evidentiary foundation [30] . Much of this speculation is based upon hearsay, sometimes two, three or even four times removed. There are many such examples, however paragraph 44 of the affidavit of Ms. S.K. sworn July 7, 2014 stands out as a particularly clear illustration of the hearsay aspect of this evidence. The paragraph reads in part: “ In an undated email from [a society worker, Ms. T.B.], Ms. T.B. states that [the group home director, Ms.

T.S.] said that “[the child’s counsel] just told her that [the child] apparently had an R-PAC hearing … and that [the Child Advocate’s representative, Ms. J.P.] has told [the child’s counsel] that there are several recommendations .” [ 44 ] The affidavits relied upon by the parents include speculation as to content of the discussions between the child and her counsel, based upon suppositions of other third parties or their

interpretation of statements allegedly made by the child. None of this information is first-hand, as neither the child nor her counsel has provided evidence of their discussions. Any such discussions would, of course, be confidential and subject to solicitor-client privilege. The difficulties with the reliability of this second-hand evidence are readily apparent. The submission, made on behalf of the child, that these discussions could not possibly be within the sphere of knowledge of either parent, is a point that is well taken.

[ 45 ] Other concerns are also raised by the material filed by the parents. Large portions of the affidavits of Ms. S.K., while clearly hearsay, do not reference the source of the information or any context for the time, place or date of these reported statements. These statements offend the provisions of Rule 14 (18) and (19) and are inadmissible. [ 46 ] There are some instances, in the affidavit evidence filed on behalf of the parents, where the source of the information and belief of the deponent, Ms.

S.K., is appropriately referenced, but where the receipt of the evidence on the motion is problematic, for other reasons. [ 47 ] In paragraph 45 of the affidavit of Ms. S.K. sworn July 7, 2014, she attests as follows: “ On December 16, 2013, my additional and supporting solicitor Mr. Pellman attended for the first time at court for a conference / motion. He has advised me and I do verily believe that he spoke with Ms. Ahmed outside of the courtroom asking what she thought the long-term plans for [the child] were. Mr. Pellman was extremely surprised to hear that Ms.

Ahmed was stating that crown wardship with placement in a foster home as (sic) a long term plan for [the child]… ” [ 48 ] The information contained in this paragraph is not purely a matter of formality or uncontroverted. Mr. Pellman is the counsel who argued the parents’ position on the motion. [ 49 ] Once the problematic aspects of the affidavits of Ms. S.K. are stripped away, very little admissible content remains in the material being relied upon by the parents. When the remaining evidence is scrutinized, it becomes quite apparent that the motion has no foundation, factually or legally.

ANALYSIS : [ 50 ] The evidence filed on the motion clearly confirms that the child has views, preferences and interests that are separate from those of the parents and the society. In these circumstances, legal representation is deemed to be desirable to protect the child’s interests [31] . The appointment of legal representation for the child was made pursuant to

section 38 of the Act . The child elected to have Ms. Ahmed, of JCY, as her legal representative. [ 51 ] In her representation of the child’s legal interests, the role of child’s counsel in the courtroom is as the child’s legal representative, rather than as an amicus curiae (friend of the court) or a guardian ad litem (litigation guardian) [32] . The relationship between the child and her counsel is solicitor and client [33] . [ 52 ] The independence and neutrality of the child’s legal representative is an important element of counsel’s role. In this case, Ms.

Ahmed has no interest in the proceeding in terms of the outcome. She has not acted in a solicitor-client capacity for any of the other parties in the proceeding. There is no issue of conflict of interest or breach of her duty of loyalty to her child client. [ 53 ] An important aspect of the role of child’s counsel is to attempt to ascertain the child’s views and wishes relevant to the matters in issue, and to ensure that evidence of the child’s views are before the court.

The child’s legal representative has the right and obligation to file evidence with the court touching upon the child’s interests, to take a position on behalf of her child client and to make submissions on behalf of the child, among other things. [ 54 ] It is the role of the child’s legal representative to make submissions as to the strength, consistency and independence of the child’s expressed views and preferences. In this case, her counsel contends that the child’s wishes are strongly held and clearly and independently expressed.

There is support for this assertion, in other evidence filed with the court from other professionals, referencing the child’s views. There is also ample evidence before the court as to the context for the child’s wishes, including her family, social, medical and educational history, her age and level of maturity. This context may be considered by the court in assessing the weight to be ascribed to the child’s wishes. [ 55 ] Addressing the submissions made on the motion on the parents’ behalf, as outlined in paragraph 10 above, the court makes the following findings: (

a) The evidence confirms that the child is quite capable of expressing her wishes and preferences, and her counsel has properly appreciated her role in conveying those views to the court and in formulating a position on behalf of the child. No further examination needs to be made, in terms of the issue raised by the parents of the child’s capacity. (

b) In the submissions made on their behalf, the parents have misconstrued the role of child’s legal representative as one of amicus curiae . Counsel’s relationship with the child is properly characterized as one of solicitor-client. (

c) The child is not a party to the proceeding, and thus, there are no grounds to consider whether the child should be found to be a “special party”. There is no basis for a litigation guardian to be appointed for the child. (

d) In this case, there is considerable evidence of the child’s views and wishes, both in the material filed in the proceeding by child’s legal representative, as well as in the materials of the other parties, notably the society. The child has articulated her wishes to her worker, her placement, her counsellor and her medical professionals. Her wishes have been consistent and appear to be expressed with some vehemence. There is no evidentiary foundation for the assertion that the child’s wishes have been mischaracterized or that the materials presented to the court are not representative of the views expressed by the child. (

e) There is no evidence to support the assertion that the child’s legal representative has become a witness in the proceeding. This is contrasted with the position of parents’ counsel on the motion [34] . Any impropriety is not on the part of child’s counsel. (

f) There was no evidentiary foundation for the suggestion that confidential information obtained by the child’s legal representative has

in any way been misused. (

g) The duties and responsibilities of lawyers who are appointed to be legal representatives of children in child protection matters are not statutorily prescribed. The protocol of the Office of the Children’s Lawyer provides an overview of the process followed by their staff lawyers and legal agents. The OCL protocol does not exclude other appropriate practices for a child’s legal representative. [ 56 ] In

summary, there is nothing in the conduct or position of child’s counsel that would merit her removal as the child’s legal representative in this proceeding. Further, the court is of the view that it would not serve the child’s interests to remove her counsel as her legal representative in this case. [ 57 ] Accordingly, the court makes the following Order: ORDER : 1 The parents’ motion, seeking to remove Ms.

Samira Ahmed as the child’s legal representative in this case, is dismissed. [ 58 ] If costs of the motion are being sought, counsel may submit a 14B motion requesting the court to establish parameters for the preparation of written costs submissions, including timelines for the service and filing of such submissions. Released: November 25, 2014 Signed: “Justice C.J. Jones ”