February 17th, 2021
The ability to seek legal advice is a fundamental right in Canada. In Justice for Children and Youth v J.G., the Divisional Court held that this right extends to minors and is not easily overridden. The circumstances underlying this appeal—a highly contentious custody and access dispute—require a brief review.
The parents had two children (ages 15 and 17 when this decision was released) before separating. After years of litigation, the parents participated in a lengthy trial. The trial judge concluded that there was substantial evidence that the mother had engaged in behaviour intended to alienate the children from their father. However, she had concerns regarding the negative impact of removing the children from their mother’s care, and ordered that the children would reside primarily with their mother.
Problems persisted beyond the trial, as the father and the youngest child, A.G., continued to have a troubled relationship. This led the Children and Family Services of York Region (“Child Services”) to require the father and children to participate in therapy sessions designed to rebuild trust and rapport.
Proceedings involving the parents and Child Services continued throughout 2018 and 2019. The mother was found to be continuing to influence the children against having a relationship with their father. Consequently, A.G. was ordered to have a transitional kinship placement with his paternal aunt and uncle, following which he would be placed in the temporary care of his father under Child Service’s supervision. On two occasions, the court declined to appoint the Office of the Children’s Lawyer (“OCL”) to represent A.G., finding that granting him independent representation in the proceeding would be inappropriate because his preferences were heavily influenced by his mother and not truly independent. Consequently, appointing the OCL and permitting A.G. to express views that were aligned with his mother risked undercutting the therapy sessions in which he and his father were participating.
In July 2019, A.G. ran away from his kinship placement. He eventually contacted Justice for Children and Youth (“JFCY”), a clinic whose objectives include providing legal assistance to youths in need. JFCY declined to disclose A.G.’s location to the father on the basis of solicitor-client privilege. However, JFCY did contact Child Services and arranged for A.G. to return to his kinship placement.
In December 2019, A.G. ran away a second time. He again contacted JFCY and instructed them not to disclose his location. The father subsequently brought an urgent motion for an order compelling JFCY to disclose A.G.’s whereabouts, and restraining JFCY from having any further contact with A.G.
The father’s motion was granted. The motion judge wrote that JFCY was inappropriately empowering A.G.’s “recalcitrant” behaviour, and undermining reunification with his father. On an interim basis, both JFCY and the lawyer representing A.G. were ordered not to have contact with A.G. for any purpose other than assisting with a return to the father’s care. JFYC appealed the order to the Divisional Court.
JFCY’s appeal was granted. The Divisional Court found that the motion judge had conflated whether A.G. was entitled to legal advice with the separate issue of whether he was entitled to independent standing in the proceedings. With reference to several authorities, the Divisional Court held that the right to seek legal advice extends to minors. It noted that JFCY’s mission would be undercut if parental permission or court authorization was required before it could give legal advice to a youth. The starting point should always be that minors have the right to seek the advice of a lawyer.
The Divisional Court acknowledged that there may be exceptional circumstances in which it would be appropriate for a court to restrain a minor from communicating with a lawyer of their choice. However, this was not such a case. JFCY had not undermined the court’s efforts to reunite A.G. with his father, as the refusal to disclose his location on the basis of solicitor-client privilege was justified, and it had in no way encouraged or abetted A.G.’s conduct. While legal advice is inherently empowering, permitting A.G. to consult with a lawyer and gain an understanding of his rights and obligations was distinct from any concerns of over-empowerment that might arise if he was granted separate standing in the proceedings.
Because of the potential effect of the mother’s alienating behaviour on A.G.’s mindset, the Divisional Court recognized that it may well be contrary to his best interests to have standing in the custody and access proceedings. However, standing was not the issue being decided on this appeal. The Divisional Court emphasized that permitting A.G. to receive independent legal advice was consistent with the status of all minors as individuals with their own rights and freedoms.
Unfortunately, the Divisional Court failed to articulate the specific circumstances that would justify a court overriding a minor’s right to seek independent legal advice from a particular lawyer. The lack of examples suggest the circumstances are likely narrow, but it is a potential development we will be monitoring going forward.
 See Wood v Schaeffer, 2013 SCC 71.
 2020 ONSC 4716.
 See e.g. the preamble of the Child, Youth and Family Services Act, 2017, SO 2017, c. 14, Sched. 1,
which states that children are “individuals with rights to be respected”.