Should children have their own lawyers in family law disputes?

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By Bryan Kravetz and Aaron Grinhaus

Most people would not expect young children to hire a lawyer.  Children have more important things to do, like play with their friends, enjoy their childhood and make sure their homework is done. Unfortunately, the sad reality of family law is that during a dispute some children have more court dates than playdates.

The recent Court of Appeal case of Mader v. McCormick, 2018 ONCA 340, demonstrates how children can be dragged into a messy legal battle where two angry parents cannot agree. Though it takes two to tango, only one stubborn parent is needed to start a seemingly endless spiral of court documents and legal fees.

In Mader, a dispute arose over one parent’s effort to expand the access schedule with two young children.  Larry Mader and Tracy McCormick were married in 1999 and separated in 2010.  Tracy had primary care of the children and Larry had alternating weekends and weekday evening access.

In 2013, Larry wanted increased time with his children and brought a court motion to vary his access schedule. The Office of the Children’s Lawyer (OCL), a government body that often intervenes in the interests of the child where parents are in contentious dispute, was appointed for the children and conducted an investigation.  The OCL concluded that the children were content with the current arrangement and Larry subsequently backed off.

Around August 2016, Larry requested a court order which would allow him to appoint a private lawyer for the children.  However, the court dismissed Larry’s efforts. Larry then made a unique argument by stating that the dismissal of his request would violate Article 3 of the United Nations Convention on the Rights of the Child. Article 3 states that “in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”

The Court of Appeal ultimately concluded that appointing a lawyer for the children should not be available in every instance. The Court made it clear that the primary consideration in family matters continues to be the best interests of the children and therefore, a child should not be dragged into litigation against his or her will.

In light of the above Court decision, parents should make every effort to resolve these issues through dialogue and collaborative means, which all start with choosing the right lawyer. Going through a separation or divorce is a complicated matter and the lawyers at Grinhaus Law Firm will navigate you through this difficult process in order to protect your rights while also ensuring that you and your children suffer the least amount of stress.

Grinhaus Law Firm is a boutique law firm conveniently located in mid-town Toronto. We have the experience and expertise necessary to help you.  For more information on this topic, feel free to call or email us to see how we can help.

PLEASE NOTE: THIS IS NOT INTENDED TO BE LEGAL ADVICE AND SHOULD NOT BE RELIED ON AS SUCH. IT IS IMPORTANT THAT YOU CONSULT WITH A LICENSED PROFESSIONAL.