The Court of Appeal of Saskatchewan has declined to designate two grandparents as “
persons of sufficient interest” and
allow them to have “specified
access” to their grandchildren.
“A key issue in this case was
around a grandparent’s right
of access to their grandchildren.
In my view, this case confirmed
the existing law around that
issue,” said Jeff Brick, a lawyer
with Kanuka Thuringer LLP in
Regina, who represented the
father of one of the children in
question as an intervenor.
“The case has relevance to the
deference paid to the custodial parent’s decision regarding access to
grandparents in the face of opposition by a custodial parent,” said
Mary Neufeld, a partner with
McKercher LLP in Regina, who
represented the grandparents.
“There was little or no discussion by the Saskatchewan
Court of Appeal regarding
whether the mother’s decision
was in the children’s best interests as discussed in other court
decisions dealing with grandparent access,” she added. “The
chambers judge had described
the mother’s actions to the
father and grandparents
as resulting from ‘a fit of pique’
and, thus, it is submitted, not
reasonable or in the children’s
best interest.”
“
The case has
relevance to the
deference paid to the
custodial parent’s
decision regarding
access to
grandparents in the
face of opposition by a
custodial parent.
The decision, Hayes v. Moyer
[2011] S.J. No. 311, focused on
an interim decision that the
paternal grandparents were
“persons of sufficient interest,”
joining them to the action
between the parents and grant-
ing them interim access to four
children, three of whom were
their biological grandchildren.
The youngest child, although
not their biological grandchild,
had been treated as such. The
biological mother opposed the
application; the biological
father of three children, who
had only limited access, sup-
ported it. The chambers judge,
purportedly on an interim basis,
had found the grandparents to
be persons of sufficient interest
under s. 6 of the Saskatchewan
Children’s Law Act, 1997. The
appeal court disagreed.
intervene in such cases has not
dissipated. “This Court has
repeatedly indicated its reluc-
tance to interfere with interim
orders issued in family matters
except in exceptional circum-
stances, the premise being that
the parties should proceed
instead to a pre-trial and trial,”
he stated in his decision. “We in
no way resile from that position.
However, the orders granted by
the chambers judge in this mat-
ter are exceptional and even
though they are interim in nature
they require intervention.”
Those reasons — including a
failure to take into account the
prominence of parental rights
over grandparents’ right — led
the court to conclude that, “the
chambers judge erred in finding
See Grandparent Page 12
Private representation of children has become more prevalent
Voice
Continued From Page 9
This dissonance has been
resolved in the U.S. with the
adoption of Standards of Prac-
tice which require child’s coun-
sel to adopt the role of either:
(a) “Child’s Attorney”: A law-
yer who provides independent
legal counsel for a child and
who owes the same duties of
undivided loyalty, confidential-
ity and competent representa-
tion as are due an adult client;
or
(b) “Best Interests Attorney”:
A lawyer who provides
independent legal services for
the purpose of protecting a
child’s best interests, without
being bound by the child’s dir-
ectives or objectives.
Since, of late, private representation of children in custody proceedings has become
more prevalent, the adoption of
the above distinctions might be
necessary in Ontario. Child representation is no longer the sole
“Acting as counsel for children requires a
myriad of skills that are not traditionally
‘legal,’ including an understanding of child
development and parent-child relationships,
and an awareness of the impact of separation
and divorce on parents and children.
purview of the Office of the
Children’s Lawyer, for fiscal and
other reasons. As a result, private lawyers will act as counsel
for children more often.
Law school hardly prepares
counsel for how to respond when
an eight-year-old client refuses to
instruct because “the last time I
said what I wanted, both my mom
and my dad called me a traitor.”
Child development training alone
does not provide the legal, statu-
tory and jurisdictional framework
required, for example, to secure
interim variation of an arbitral
award when a mother in custody
litigation announces she no
longer wants to parent a 10-year-
old client. Acting as counsel for
children requires a myriad of
skills that are not traditionally
“legal,” including an understand-
ing of child development and
parent-child relationships, and
an awareness of the impact of
separation and divorce on parents
and children. It calls for a consist-
ently child-focused approach and
an intimate understanding of
family processes pre- and post-
separation. An ability to com-
municate and bond with children
is essential. Counsel for the child
is often called on to mediate
issues and, hence, talent for dis-
pute resolution is also essential.
Jennifer Shuber is certified
by the Law Society of Upper
Canada as a family law specialist and is a partner at
Basman Smith LLP in Toronto.
Her practice is restricted to
family law. She advises clients
on all aspects of family law
cases, as well as representing
children in contested custody
and access matters. She also
acts as a comprehensive family
mediator and conducts mediations and arbitrations in private practice.
