You must first show the court that the child’s interests are at stake. In matters of custody and visitation this is the obvious concern. Likewise, when deciding whether to appoint a lawyer for your child, the court must determine that this step is needed to protect the child’s best interest.

Consider the following example: The parents of a 13-year-old child are fighting over custody. The child wants to know his rights so that he is able to make decisions and express his wishes. The court may appoint a lawyer whose task it is to inform him of his rights, advise him and defend his interests.

Here is another example: The parents of an 11-year-old girl say she tells each parent something different. Since their daughter seems to have difficulty telling them exactly what she wants, the parents agree to ask the court to appoint a lawyer who will advise, assist and represent her. They even agree to split the cost of legal fees equally. Their request will most likely be granted and a lawyer will represent the child throughout the proceedings and any future hearings.

As is the case with adults, only lawyers, i.e. legal professionals who are members of the Barreau du Québec, may represent children before the court.

In practice, the court will normally appoint lawyers who are well-acquainted with family law. With experience, some lawyers become specialized in representing children.

Children of all ages may be represented by a lawyer. However, it is unusual to appoint a lawyer to a child too young to express himself. In such a case, the court may decide it is more useful to have an expert, such as a psychologist or a social worker, evaluate both the situation and the parenting ability of the parties, provided the parties consent. If the parents refuse, the court may decide it is necessary to appoint a lawyer to the young child to make sure all the relevant evidence is submitted before the court.

Yes, he can ask for a lawyer, as long as he is able to do the following:

• express his wishes;
  
• understand the lawyer’s explanations about the nature of the problem (for example, custody arrangements), as well as the steps to take and their consequences;
  
• give the lawyer instructions on what he would like done (also called a “mandate”), and how he would like the mandate to be performed;
  
• change these instructions according to the circumstances;
  
• cancel the lawyer’s mandate for the same reasons as an adult, such as where he disagrees fundamentally with the lawyer.

The lawyer determines whether the child has the capacity to grant the mandate. A child 12 years old and over is normally presumed to have this ability.

The lawyer must first verify that a child aged between 8 and 12 has the capacity to grant her the mandate, meaning that is he is able to express his wishes taking into account all the circumstances. It is often the case that an 11-year-old child is capable of doing so, but rarely true for an eight-year-old child.

Once the lawyer has determined that the child has the capacity to grant her a mandate, she will act in much the same way as she would with an adult, i.e. she will advise and represent him before the court. She will inform the court of her young client’s wishes, but her role is not simply that of a messenger: she must inform the child of the possible consequences of his choices and discuss them with him. She may even refuse to continue representing the child if she feels the child’s wishes are incompatible with his interests.

If the lawyer thinks that the child is unable to grant her a mandate, her role is limited to advocating for the child’s rights and interests, regardless of the child’s wishes. The lawyer must then ensure that all the necessary elements are presented to the court. In order to do so, she must have access to all the sources of information about the child’s environment, be able to meet witnesses, have access to documents, and request experts where necessary, etc.

The court may determine the fees to be paid, and who pays them, when it appoints a lawyer for a child. The court cannot declare that the child qualifies for legal aid, however—only the general director of legal aid can make that decision, in accordance with criteria established by law.

If the child does not qualify for legal aid, the court (or the parties, if they agree) sets his legal fees at a certain rate—by the hour or by the day, for example.
Payment is split between the parents in proportion to each parent’s financial resources.

While the fact that a lawyer represents your child does not automatically excuse him from testifying, it may make it unnecessary.

The child probably won’t have to testify in front of the judge if the parents agree that the lawyer will act as the child’s spokesperson and defend his interests. But the child’s testimony may, in some cases, provide further understanding that is essential, or at least very useful, for the judge. In the end, everything depends on the circumstances.

His lawyer will be at his side, just as yours will be for you. Before a child testifies, the judge normally asks the parents to leave the courtroom, and both the judge and the lawyers remove their official robes. This makes the situation less intimidating for the child so he can express himself more freely.

The judge may also decide to hear your child in her chambers rather than in the courtroom. In fact, the judge is legally authorized to hear your child any place she considers appropriate.

Your child may be accompanied by a person who can assist and reassure him if he is not represented by a lawyer. This person’s role is limited to helping him express his point of view.

Nothing prevents you from speaking with your child’s lawyer. You will have to do so if you are the one who brings your child to his lawyer’s office.

However, do not forget that the lawyer represents your child, not you. Consequently, anything you tell your child’s lawyer is not protected by professional secrecy, in contrast to what you tell your own lawyer.

The rule of professional secrecy also applies to your child’s lawyer. Consequently, she is not allowed to tell you what your child says to her, unless your child is capable of giving his permission for this, and does so clearly.

Moreover, your child’s interests will be much better served if you don’t ask him what happened during his meetings with his lawyer, and if you try not to ask his lawyer too many questions.

We invite you to consult Côtécour to learn more about legal proceedings in family court.