On April 25, 2024, the Child and Youth Law section of the Ontario Bar Association held an insightful virtual program titled, “Capacity and Consent by Children and Youth: Legal Standards and Best Practices”, which was filled with practical tips from experts in the field.
The program was chaired by Kathy Batycky, Counsel with Stoner & Company Family Law, and Jane Stewart, a Staff Lawyer with Justice for Children and Youth. The panel was composed of the Honourable Justice Manjusha Pawagi of the Ontario Court of Justice (Family Court), the Honourable R. John Harper of Harper's Family Law Chambers, and Ian M. Ross, Counsel with Office of the Children’s Lawyer.
The panel explored various legal issues that affect children and youth, including their participation in legal proceedings and their capacity to make decisions about their legal and personal interests.
The panel stressed the importance of ensuring that children and youth’s voices, perspectives, and preferences are solicited and considered in the context of legal proceedings involving them. For example, the Honourable R. John Harper urged the audience to “never lose sight” of children in the context of legal conflicts between parents, where children’s views may easily be lost.
Justice Pawagi offered practical suggestions on how to foster children’s participation in legal proceedings. For example, she noted that where possible, she tries to hear matters involving children in a courtroom where the tables and chairs are arranged in a square. Justice Pawagi noted that this arrangement encourages children to speak freely and to engage with the proceedings, which can positively influence their immediate and long-term well-being.
Justice Pawagi also noted that she has invited children to hear her judgements firsthand, and that in such circumstances, she drafts her oral reasons with the child in mind. Similarly, the Honourable R. John Harper echoed that having an affected child present to hear a judge’s decision can help to ensure that the child understands the decision and the reasons for it, especially in high conflict situations between parents. He also noted that prior to his retirement from the bench, he would sometimes meet with children involved in legal proceedings if, for example, a child’s therapist said that it would be beneficial for the child.
Ian Ross and the Honourable R. John Harper both highlighted the “spectrum of capacity” of children, with each noting that capacity depends on both time and circumstance. As an example, the Honourable R. John Harper noted that a child’s capacity to consent to treatment might vary depending on whether the treatment involves an over-the-counter medication or chemotherapy. They further emphasized that a child’s capacity to consent to treatment can only be determined by a healthcare professional, and not by a parent, guardian, or legal representative.
The panelists also spoke to the important role played by the Office of the Children’s Lawyer (OCL) in representing the interests of children in legal matters. Ian Ross highlighted that the OCL aims to create a safe space for children to speak and to be provided with legal advice. Justice Pawagi further reminded the audience of the importance of protecting the privacy of children and youth, particularly in the context of access requests for criminal justice or medical records.
This instructive program reminded the audience of the importance of ensuring that children and youth’s voices and rights are respected and considered. The panel’s experts highlighted relevant considerations and helpful best practices for legal proceedings involving children and youth, which will surely be of use to those practicing in this area.
About the Author
Brittany Ross-Fichtner is Counsel at the Office of the Ontario Ombudsman.
The views expressed are those of the writer and do not necessarily represent the views or opinion of the Office of the Ontario Ombudsman.
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