Focus: New CBA section focuses on children’s law

Children should be seen and not heard, according to the old adage, but not if you ask a group of Canadian Bar Association members who have formed a committee to give the country’s youth a legal voice.

Marv Bernstein, co-founder and vice chairman of the CBA’s national children’s law committee, says that because children’s issues cut across virtually every area of legal practice, their interests have sometimes fallen between the cracks of other CBA sections.

“Our view was that there was a bit of a vacuum because no one section had responsibility for really promoting children’s legal interests,” says Bernstein, whose day job is chief policy adviser of UNICEF Canada.

Even in sections with more direct exposure to children’s rights, such as family law, he says children’s perspectives don’t always get full consideration.

“There are some issues where they get less attention than the parents. There can at times be a conflict between advancing the interests of parents and advancing best interests of the child,” says Bernstein.

“We wanted to ensure there is a group responsible for making sure a child-friendly lens is applied to any legal issues coming up.”

New Brunswick’s acting child and youth advocate, Christian Whalen, who has chaired the committee since its formation last year, says lawyers involved with children have to be more proactive about promoting their interests than counsel working for more conventional clients.

“If you have wealthier clients, they might be able to drive the issues. Unfortunately, children are not deep-pocketed clients, so unless there is a dedicated effort on the part of legal professionals to look to the legal interests of children as rights holders, they may end up getting the short end of the stick,” he says.

Before joining UNICEF Canada, Bernstein held senior positions at children’s aid societies in Ontario as well as a five-year stint as Saskatchewan’s advocate for children and youth between 2005 and 2010. Across almost four decades of legal practice, he says the emphasis on representation for children in the court process has grown markedly. However, his own experience has given him insight into the patchy nature of the growth.

“Ontario is probably at the highest end in terms of providing legal representation. When I started in child protection, there were very few situations where you would have direct legal representation for the child. That began to change around 1980 and you now have a very strong program through the office of the children’s lawyer,” he says.

“Out in Saskatchewan, there was no program, no clear statutory basis, and no funding for children to have legal representation in child protection cases.”

During his time as a child and youth advocate, Bernstein helped introduce a pro bono service to deliver representation to children and he hopes the CBA committee will help highlight best practices as well as areas in need of attention. Right now, he says the committee is pushing the federal government to establish a national children’s commissioner. While most provinces have a youth advocate of one form or another, Ottawa lacks one to speak for children caught up in legal matters under federal jurisdiction such as immigration and aboriginal law.

In its short history, the committee has already had a big impact by making submissions to the federal government on subjects as diverse as cyberbullying and the presumption of equal parenting following divorce. The United Nations Convention on the Rights of the Child has proven a particularly prominent issue after a UN review criticized Canada’s failure to fully implement it despite being one of the first nations to sign onto it. The review also highlighted concerns about the overrepresentation of aboriginal and African-Canadian children in custody as well as inadequate data collection and monitoring of child well-being.

Last summer, the CBA council adopted a committee resolution demanding the government come up with an action plan to fully implement the convention and has since asked for a meeting with the prime minister to discuss the issue.

In turn, the flurry of activity has prompted numerous enquiries from CBA members wanting to get involved, according to committee member Cheryl Milne, executive director of the David Asper Centre for Constitutional Rights at the University of Toronto. “Once the committee was formed, the interest has been really quite significant,” says Milne. “There’s not that many people for whom working with children is their primary practice. Most encounter children’s rights issues as a part of their practice, but it seems to be one of the most enjoyable parts.”

Matt Boulos, a lawyer who runs the Teen Legal Helpline, says he welcomes the progress of children’s law at the CBA.

“I think we’re long overdue to start asking how do we serve young people as opposed to the classic lawyer trick of thinking that we can just do what we’ve always done with a slightly different label on it,” he says.

“It can be very hard for children to get access to legal protection. You’re talking a very narrow band where the family can afford it and is willing to pay and where the adults in their lives are not part of the problem. Everyone else is kind of left on their own. The other thing is that how you deliver advice to young people is different. If you write them a long legal memo, what on earth are they going to do with that?”

Boulos started his helpline after a teen he was mentoring came to him for help dealing with a serious criminal allegation made against him. Boulos was able to put him in touch with a criminal lawyer who guided him through the issue.

“It was a quick, relaxed exchange and there was a good outcome because the accusation was unfounded, but it left me thinking that he isn’t the only one in that sort of situation,” says Boulos.

The helpline boasts a roster of lawyers who can answer legal queries made by teens through the web site. Most concern family, criminal, immigration and employment matters, according to Boulos.

“It can be quite intimidating to talk about serious problems in person. This keeps it flexible and allows the teen to remain anonymous so they don’t have to worry about the shame and fear of being exposed,” he says.   

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