This Div is a JS Trigger

#10 - Children

STANDARD

Best interests
A lawyer must explain to the client that the best interests of the child is the test considered by the courts in all matters concerning an issue which may impact on a child.1

Evidence
A lawyer must be aware that there are evidentiary issues that are specific to children.2

Duty to Report: Client
Where appropriate, a lawyer must advise a client of the legal requirement to make a report to a child protection agency if the client has information indicating a child is in need of protective services or if the client has reasonable and probable grounds to suspect that a child is suffering abuse, may be suffering abuse, or may have suffered abuse. In such situations, a lawyer must advise the client that the obligation to report exists even where the client’s information comes from a confidential or privileged source.3

Where appropriate, a lawyer must advise a client of the legal requirement not to make a malicious report against a parent or third party. If the client persists in making such a report, the lawyer should consider withdrawing.4

Solicitor-Client Privilege and Child Protection
A lawyer who is considering whether to report information obtained in the course of a solicitor- client relationship to a child protection agency must be aware of the applicable provisions of the Code of Professional Conduct 5; the Children and Family Services Act, and case authorities determining what factors are taken into account when determining whether legislation abrogates solicitor-client privilege.6

Any legislation intended to alter solicitor-client privilege with reference to child protection must do so in the clearest possible terms because of the ramifications of such an alteration.7

A lawyer at all times must hold in strict confidence all information concerning the business and affairs of a client acquired in the course of the professional relationship and must not divulge any such information unless authorized by the client; required by law, a court or the Nova Scotia Barristers’ Society to do so; or otherwise permitted by the Code of Professional Conduct.8


Reference Materials

Notes

1. Young v. Young, [1993] 4 S.C.R. 3; Divorce Act R.S.C. 1985, c. 3 (2nd Supp.), s. 17(5) - 16(8) Factors; Matrimonial Property Act, R.S.N.S., c. 275, s. 26 - The court may disregard any provision of a marriage contract or separation agreement affecting a child where, in the opinion of the court, it is in the best interests of the child to do so; Children and Family Services Act, S.N.S. 1990, c. 5, s. 2 - Best interest is the only test; Maintenance and Custody Act, RSNS 1989, c 160, s. 18(5) and (6).

2. United Nations Convention of the Rights of the Child, Can. T.S. 1992, No. 3, Article 3.2 and 12; See cases listed under "Ways of Getting a Child's Views in front of a Court"; Evidence Act, R.S.N.S. 1989 c.154, s.63. - Children of Tender Years; Canada Evidence Act, R.S.C. 1985, c. C-5, s.16 and 16.1.

3. Children and Family Services Act, S.N.S. 1990, c.5, sections 23(1), 24(2), 24(3), 24A(2) and 25(2); Wedsworth v. Wedsworth, 2005 NSCA 10 (CanLII)

4. Children and Family Services Act, S.N.S. 1990, c. 5, sections 23(5), 24(8), 24A(6), 25(6); See also Young v. Bella, [2006] SCC 3 (CanLII); Wedsworth (2005), 229 N.S.R. (2d) 168 (S.C.) Aff’d at (2005), 229 N.S.R. (2d) 350 (C.A.); Wedsworth v. Wedsworth, 2005 NSCA 10 (CanLII)

5. Nova Scotia Barristers' Society, Code of Professional Conduct, Halifax: Nova Scotia Barristers' Society, 2012, Commentary 3.3-2[1] "Confidentiality", Commentary 3.3-3[2] "Future harm exception" (see Smith v. Jones, [1999] 1 S.C.R. 455 at para 83); and FLSC, Code of Professional Conduct, Ottawa: Federation of Law Societies of Canada, 2014, rule 3.3-3.

6. Re: Cameron (1976) 5 WWR 271, para 14 and 33 “Since solicitor-client privilege was not specifically referred to, and since there is ambiguity as described, there is strong doubt in my mind that the solicitor/client privilege is abrogated ...” See also Descoteux v. Mierzainski, [1982] 141 D.L.R. (2d) 590 (S.C.C) page 12; Canada (Privacy Commissioner) v. Blood Tribe Department of Health (2008) SCC 45; R. v. McClure (2001) 1 S.C.R. 445

7. Re: Cameron, supra, para 14

8. Nova Scotia Barristers' Society, Code of Professional Conduct, Halifax: Nova Scotia Barristers' Society, 2012, rule 3.3-1.

Related Legislation

Proceedings in Family Division of the Supreme Court in the HRM & CBRM are governed generally by the Civil Procedure Rules but Civil Procedure Rule - Part 13 is of particular relevance.

NS Civil Procedure Rule 59.28 - Disclosure and discovery under Part 5
     (3)  A child may not be examined for discovery, and a prothonotary or court officer may not issue a discovery subpoena that requires a child to be examined, unless a judge permits.

     (4)  A judge who permits discovery of a child may give directions for the conduct of the examination, such as directions limiting the duration of the examination and the kinds of questions that may be asked.

Civil Procedure Rule 59.40(6) and (7) - Judge's permission needed for child under age of majority to testify.

Civil Procedure Rule 60 - Child and Adult Protection

Children and Family Services Act, S.N.S. 1990, c. 5, sections 23; 24(2), 24(3), 24A and 25(2).
Evidence Act, R.S.N.S., 1989, c.154 s.63
Family Court Act, R.S.N.S. 1989, c. 159.
Maintenance and Custody Act, R.S.N.S. 1989, c. 160. (Nova Scotia Child Maintenance Guidelines)  
Maintenance Enforcement Act, S.N.S. 1994-95, c. 6.
Reciprocal Enforcement of Custody Orders Act, R.S.N.S. 1989, c. 387.

International Agreements

United Nations Convention of the Rights of the Child, Can. T.S. 1992, No. 3.

Hague Convention on the Civil Aspects of International Child Abduction, 25 October 1980 (entered into force 1 December 1983).

Federal Legislation

Divorce Act , R.S.C. 1985, c. 3 (2nd Supp.)
Family Orders and Agreements Enforcement Assistance Act, R.S.C. 1985, c. 4 (2nd Supp.).
Federal Child Support Guidelines, SOR/97-175.
Canada Evidence Act, R.S.C. 1985, C-5, s.16

Additional Commentary

Best interests of a child

Gordon v. Goertz, [1996] 2 SCR 27: Best interests in the context of mobility

Foley v Foley, 1993 CanLII 3400 (NS S.C.), 124 N.S.R (2d) 198 at p. 201 - gives a nonexhaustive list of the factors to be taken into account when considering the best interest of the child. (This case has been cited with approval by the Nova Scotia Court of Appeal in Wedsworth v. Wedsworth, 2005 CanLII 10)

Jessome v. Jessome, 2014 NSSC 285: Not in a child’s best interests to order access to a parent who does not want access.

Nova Scotia Community Service v S.C.P, 2006 NSFC 40 (CanLII), N.S.J. No. 567 (F.Crt) - Issues relating to a child and his or her participation should be addressed early on in the litigation process to avoid unnecessary delay (ethical considerations).

Ways of getting a child’s views in front of a court

BJG v. DLG, 2010 YKSC 33: Children have legal rights to be heard during all parts of the judicial process, including judicial family case conferences, settlement conferences, and court hearings or trials. An inquiry should be made in each case, and at the start of the process, to determine whether the child is capable of forming his or her own views, and, if so, whether the child wishes to participate. If the child does wish to participate, then there must be a determination of the method by which the child will participate.

Strobridge v Strobridge, 1994 CanLII 875 (ON CA) – Children's preferences must be presented by appropriate evidentiary means.

1. Assessments

Judicature Act, RSNS 1989, c 240 (Court's jurisdiction to order), s. 32 (F)

Linton v Clarke, 1994 CanLII 8894, 21 O.R. (3d) 568, 76 O.A.C. 363, (ON S.C.D.C.) – Assessments should only be ordered if there are clinical issues and not just a vehicle to promote settlement; authority for the same principle: D. v. R., 2004 NSSF 105 (CanLII).

Weaver v Tate, (1989) 24 RFL (3d) 266 (Ont. H.C.) affd (1990) 28 RFL (3d) 188 (Ont. C.A.): An expert assessor's recommendation is just one piece of evidence to be considered when determining who should be granted custody. Ultimately, it is up to the trial judge to determine which parent is entrusted with custody.

a.   Wishes of the Child Assessments

Parent v. MacDougall, 2014 NSCA 3: it is for the judge to decide weight be given to children's wishes.

John v. John, 2012 NSSC 324: A child’s wish report deemed to satisfy the need for unbiased information about the children’s preferences. The UN Convention on the Rights of the Child is cited.

Jarvis v. Landry, 2011 NSSC 116 (CanLII) - the burden is on the party requesting the assessment to show that a professional opinion is required. Children’s wish report not ordered in absence of evidence of children’s capability to form their own views.

Paul v. Paul, (1998) CarswellNB 84 (NBQB): The Court ordered that the wishes and concerns of the children be canvassed with the assistance of a professional (profession was not specified).

Burgmaier v Burgmaier, 1986 CanLII 2908 (SK CA) – A child’s wishes were not considered at trial and this was determined to be an error of law.

Jandrisch v Jandrisch, (1980) 16 R.F.L. (2d) 239 (Man. C.A.) – possible determination of error of law if a child’s wishes are relied on at trial when the process of procuring the evidence is questionable.

Hamish v. Hamish, 1998 CarswellNB 381 (NBQB): The children were interviewed by the social arm of the Court for the purposes of ascertaining the children's wishes and preferences with respect to their living arrangements. They were not asked directly with whom they would prefer to live.

McIntyre v. Veinot, 2016 NSSC 8 (CanLII)

b.    Custody and Access Assessment/Parental Capacity Assessment (with psychological component)

Jarvis v. Landry, 2011 NSSC 116 (CanLII) - the burden is on the party requesting the assessment to show that a professional opinion is required. Children’s wish report not ordered in absence of evidence of children’s capability to form their own views.

Fisher v. Fisher, 2004 NSSF 104, Coady, J. the Court ordered an assessment (children had changed residence to father, one child now refused contact with the mother). He held with the acrimony between the parties, the court did not expect either to give the objective and independent evidence needed to determine the children’s best interests and that the son’s estrangement from his mother was a clinical issue.

Doncaster v. Field, 2014 NSSC 234: Mental health must be in issue for a parental capacity assessment or psychological assessment to be ordered.

MacLean v. Boylan, 2011 NSSC 314 (CanLII): Application for an assessment which would include psychological testing was dismissed as no need for a professional given modest changes sought. The information that would be generated by the assessment and testing would not address how decision-making was best structured, whether there should be parallel parenting or if one parent should have decision-making authority in some domains while the other made decisions in others. 

Farmakoulas v. McInnis, 1996 CanLII 5447 (NS SC):  Reports should be ordered where there’s a specific need for the type of information they generate and the information would not otherwise be available because it falls within the special knowledge of the expert. The request for a report was dismissed on the basis that the assessment really was a fishing expedition.

E.P. v. S.P., 2016 NSSC 173 (CanLII)

2. Judicial Interview

Lubin v. Lubin, 2012 NSSC 31: child was interviewed by the judge.

Demeter v. Demeter, 1996 CanLII 8111 (ON S.C.): interview of children individually in judge's chambers with consent of parents, parents advised of the children's wishes in general terms but not the full content of the interview. Considerations when children's lawyer requests permission to withdraw from the case.

Uldrian v. Uldrian, (1988) 14 RFL (3d) 26 (Ont. C.A.): Even where a judge is obligated to consider the views and preferences of a child, there is no obligation to interview the child where the evidence is otherwise available.

Wakaluk v Wakaluk, (1976) 25 R.F.L. 292 (Sask. C.A.) at p. 304 – procedural - taking evidence from an expert who met with a child.

3. Child as Witness

NS Civil Procedure Rule 59.40 (6) and (7): Hearing

6)  A child who is under the age of majority may not testify, and a prothonotary or court officer may not issue a subpoena that requires a child to appear at a hearing, unless a judge permits.

(7)  A judge who permits a child to be a witness may give directions for the presentation of the evidence, such as directions limiting the duration of the testimony and the types of questions that may be asked

Ezurike v. Ezurike, 2006 NSSC 73: Mr. Ezurike served sub poenas on his 19 year old daughter and 14 year old son. Justice Dellapinna said, at paragraph 27, the daughter was “clearly uncomfortable in the role of a witness in a trial between her parents and appeared guarded in her responses” while the son “was very diplomatic”, crediting his parents approximately equally for their parenting efforts.

Beck v. Beck, 1993 CanLII 6898 (PEI SCAD) - The children testified at trial about their preferences as to where they wanted to live. The parents were excused from the courtroom when children gave their evidence. Appellant argued that the trial judge focused on the children's preferences as the determining factor. The Court of Appeal found it was clear the trial judge was aware that the wishes of a child are only one of the factors to be considered. The trial judge considered all of the evidence at arriving at his decision on custody.

Reddin v. Reddin, (1992) 39 RFL (3d) 151 (PEISC): The trial judge did not err when she declined to force a thirteen year old boy to testify against his will.

Fairchild (Ashe) v. Ashe, (1991) 103 NSR (2d) 231 (NSTD): The judge erred when she told counsel that it was distasteful to call a child as a witness and that the evidence of the child would likely be unhelpful.

4. Guardian Ad Litem/Child as a Party (Child Protection)

NS Civil Procedure Rule 59.54 (1) and (2): Litigation Guardian

(1) A judge may appoint a person to act as litigation guardian for a child who is under the age of majority, or a party who is not capable of managing their affairs under Rule 36 - Representative Party, if the person consents to act as litigation guardian and certifies that they are not a party, and that they have no interest in the proceeding adverse to the interests of the child or the party.

(2) A person under the age of majority is not required to start or respond to a proceeding by a litigation guardian unless a judge orders otherwise.

Children and Family Services Act, S.N.S. 1990, c. 5, Sections 36 (1) and 37; 41(4)(b) - Child as a Party; section 37- Guardian Ad Litem.

Nova Scotia (Community Services) v. T.C., 2010 NSSC 69: The CFSA not only permits a child to have counsel but mandates it by virtue of s. 41(4)(b). representation by counsel is consistent with Charter values and the need to balance a child’s maturity with restrictions on Charter Rights.

Smith v. Jones 1999 1 SCR 455 – factors for a lawyer to consider in assessing whether disclosure of confidential information is justified to prevent death or serious bodily harm; scope of “serious bodily harm”

DOWNLOADS

Related Ethics

Nova Scotia Barristers' Society, Code of Professional Conduct, Halifax: Nova Scotia Barristers' Society, 2012, Chapter 3.

For the Family Division of the Supreme Court in the HRM & CBRM; while family law matters outside the HRM and CBRM (except for Divorce and Property) are dealt with in the Family Court. For Family Court Forms outside the HRM and CBRM when you are dealing with divorce or division of property, you will go to the Supreme Court.

Voice of the child report guidelines, Nova Scotia Department of Justice, Court Services 2015

Practice Memoranda

Supreme Court Family Division (Jan 29, 2010)
Re: CPR Practice Memoranda

National Council of Juvenile and Family Court Judges

Legal Ethics and Professional Conduct: A Handbook for Lawyers in Nova Scotia, 2nd ed. (Halifax: Nova Scotia Barristers’ Society, 1998) c. 5-7, 18.

Resources

Greene, Elizabeth / Children’s voices, children’s interests and children as litigants in family matters (August 2008)  CBA Newsletter. 

Federal Government / Parenting after separation and divorce

Parent Information Program - Nova Scotia Supreme Court: Family Division

The Family, Children & Youth Section of the Department of Justice Canada has produced two public legal education and information documents for parents:

Community Resources

Legal Information Society website: legalinfo.org

Youth Resources map

Directory of Nova Scotia Family Resource Centres

APNS Association of Psychologists - Frequently Asked Questions

About Child Abuse - Nova Scotia Department of Community Services

Loose Leaf Series

McLeod, James G./ Child Custody Law and Practice, loose leaf (Scarborough, Ont.: Carswell, 1992). [KB 137 M165 1992]

Wilson, Jeffery. / Wilson on Children and the Law, (3d ed.), loose leaf (Markham, Ont.: Butterworths, 1994) [KB 137 W749 1994]

Family Law Resource list from Library & Information Services of the Nova Scotia Barristers' Society.

ARTICLES and BOOKS

Bala, N., Birnbaum, R., Cyr, F., & McColley, D. / (2013). Children's voices in family court: Guidelines for judges meeting children. Family Law Quarterly, 47 (3), 381-410.

Bala, N., Maur, Mary Jo / (2014). The Hague Convention on Child Abduction: A Canadian Primer. Canadian Family Law Quarterly, 33 CFLQ 267

Beaton, Janice E. “A Lawyer’s Duty to report Child Abuse, Neglect or Need for Protective Services” (2011)

Chewter, C. / "Violence Against Women and Children: Some Legal Issues" (2003) 20 Can. J. Fam. L. 99.

Anderson, John; Bordage, Mona / When children lie - the S.A.I.D. syndrome (sexual allegations in divorce) (April 1993), in Family Law 1993. [KB 135 C760 1993]

Casey, Patrick L / Children's wishes (April 1993), in Family Law 1993. [KB 135 C760 1993]

McLeod, James G. / Child Custody Law and Practice, looseleaf (Scarborough, Ont.: Carswell, 1992) KB 137 M165 1992

Birnbaum, Rachel; Fidler, Barbara Jo; Kavassalis, Katherine / Child custody assessments : a resource guide for legal and mental health professionals -- Toronto : Thomson Carswell, 2008. [KB 137 B617 2008]

Continuing Legal Education Society Of British Columbia / Children's participation in family justice processes -- Vancouver, B.C. CLEBC, 2007. [KB 137 C762C 2007]

Grover, Sonja C. / The child's right to legal standing -- Markham, Ont. LexisNexis Butterworths, 2008 [KB 137 G883 2008]

Savoury, Carolyn / A Voice for “The Small”: Judicial “Meetings” in Custody and Access Disputes, 2013 28 Can. J. Fam. L. 225

Thompson, Rollie  / Children Should be Heard but Not Seen: Children’s Evidence in Protection Hearings, (1991-1992) 8 C.F.L.Q. 1

Huddart, Justice C. and Ensminger, J.C.  / Hearing the Voice of Children (1991-1992) 8 C.F.L.Q. 95

Let the Child Speak Out (February 1999) by Justice R. James Williams

The Duty to Report Child Abuse, 17 C.F.L.Q. 277.

Schmitz, Cristin. "Bullying spouse gets harsh reprimand", (July 2009) in The Lawyers' Weekly.

Amended by Council on November 22, 2013