Area of Law: Children and the Law
Answer # 970
Can children hire lawyers to represent them?Region: Ontario Answer # 970
There are two general situations where a child would want their own legal counsel. First, where the child has suffered physical or emotional harm, and second, to enforce his or her rights, such as under a contract.
Children in need of protection
In most cases, where a child has suffered harm, the child’s parent or guardian would be the one to hire legal representation and assist the child with his or her claim. In cases where the parent or guardian is unwilling to assist the child, or where the parent or guardian is the person causing the harm, the child will have the right to obtain legal counsel.
In Ontario, children 18 years of age and older have the right to be represented by lawyers who act according to the children’s wishes. Those children under the age of 18 who are in need of protection, are given the right to legal representation under the Child, Youth and Family Services Act of Ontario.
Part III of the Act sets out the detailed situations where children would be considered in need of protection, including where the child:
- Has suffered physical harm, sexual abuse, sexual exploitation, suffered from neglect or lack of protection by a parent or a person having charge of the child,
- Is at risk of being physically or emotionally harmed, or sexually abused or exploited, by a parent or a person having charge of the child,
- Requires medical treatment to cure, prevent or alleviate physical harm or suffering and the child’s parent or a person having charge of the child does not consent to the treatment,
- Has suffered emotional harm, demonstrated by serious anxiety, depression, withdrawal, self-destructive or aggressive behaviour, or delayed development and there are reasonable grounds to believe that the emotional harm suffered by the child results from the actions, failure to act or pattern of neglect on the part of the child’s parent or the person having charge of the child,
- Has suffered or is likely to suffer emotional harm of the kind described above and the child’s parent or the person having charge of the child does not provide, or refuses or is unavailable or unable to consent to, services or treatment to remedy or alleviate the harm,
- Suffers from a mental, emotional or developmental condition that, if not remedied, could seriously impair the child’s development and the child’s parent or the person having charge of the child does not provide treatment to remedy or alleviate the condition,
- Has been abandoned, the child’s parent has died or is unavailable to exercise his or her custodial rights over the child and has not made adequate provision for the child’s care and custody, or the child is in a residential placement and the parent refuses or is unable or unwilling to resume the child’s care and custody,
- Is less than 12 years old and has killed or seriously injured another person or caused serious damage to another person’s property, and treatment is necessary to prevent a recurrence and the child’s parent or the person having charge of the child does not provide the treatment;
- Is less than 12 years old and has on more than one occasion injured another person or caused loss or damage to another person’s property, with the encouragement of the person having charge of the child or because of that person’s failure to supervise the child adequately, or
- Is brought before the court with the parent’s consent and, where the child is 12 years of age or older, with the child’s consent, because the parent is unable to care for the child.
Under the Act, if a child is unable to obtain legal representation, and a court determines that it is in the best interests of the child to be represented, the court must provide legal representation to the child.
Legal representation for the child is usually provided by the Office of the Children’s Lawyer. Children who are being removed from their parents’ custody or being made Crown wards also have the right to legal representation. In all other cases where a child may be in need of legal representation, the right to legal representation is determined by what is in the best interests of the child.
For more information on ‘children in need of protection’ and Ontario’s Child and Family Services Act, visit the Ministry of Children, Community and Social Services.
Children enforcing rights
With regard to children and contracts, the general rule is that the child can enforce the contract but the adult may not be able to. Contracts entered into by a minor (anyone under the age of 18 in Ontario) are not binding on the minor unless they are formally ratified or authorized by him or her after reaching the age of majority. The contract, however, is still binding on the adult.
There are four circumstances, however, when an adult can enforce contracts because they are for the benefit of the child. These are:
- Contracts for necessities (for example, housing, food, etc.)
- Employment and other beneficial contracts
- Contracts involving land, marriage, company shares or partnerships
- Contracts ratified by a minor on reaching the age of majority
Minors 16 years of age and older, are also able to enforce their right to privacy. Under the Municipal Freedom of Information and Protection of Privacy Act, they have the right to access information held by government offices, such as schools, libraries and the police.
Minors who are 16 or 17 years old are also protected from age discrimination while looking for housing under the Ontario Human Rights Code. If they feel a landlord has discriminated against them, they may make a complaint to the Ontario Human Rights Commission.
Lawyer’s role when representing a child
In Ontario, it has been decided that the solicitor/client relationship can be applied to child representation situations. This means that a lawyer acting for a child in Ontario should advocate the child’s wishes, provided that the child is old enough to convey them, rather than the child’s “best interests.” This is different from other provinces which lean more toward protection of the child’s best interests and not the child’s wishes.
For more information about children and the law in Ontario, refer to the Ministry of the Attorney General.
If you require legal advice, contact a lawyer.
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