Putting Children First: The Role of Child’s Counsel in Family Law Cases

Ask An Expert: Terri L. Mair, K.C.

By Brittany Koenig, Senior Paralegal

In family law matters involving children, the best interests of the child are paramount. However, determining what those interests are can be complicated and emotional - particularly when parents or other family members have conflicting interests. This is where child counsel lawyers come in. These lawyers specialize in representing the legal interests of the children themselves, ensuring their voices are heard and their needs are prioritized in legal proceedings.

Terri L. Mair is a prominent child counsel lawyer who has been practicing law in Calgary for over 30 years. In her work, Terri represents children in divorce and separation cases, giving them a voice in the legal proceedings and advocating for their best interest. She is a Senior Mentor Lawyer with the Legal Representation of Children and Youth in Alberta (LRCY), where she offers support and guidance to other child counsel lawyers and assists them in navigating the complex legal and ethical challenges of representing children in foster care.

In her role as Counsel for the Director of TsuuT’ina Child & Family Services, Terri works with children who have experienced abuse, neglect, or other extreme circumstances that put them at significant risk on physical, emotional, mental, and spiritual levels. Terri is an active member of the Canadian Bar Association and the Access to Justice Committee. She has attended numerous conferences and seminars regarding the representation of children and their development, and has participated in extensive training with the Palix Foundation who seek to improve the health and wellness of children by promoting the application of early brain and biological development.

As a trained mediator, Terri strives to settle matters in the least emotionally damaging way, working with children and their families to ensure a positive outcome for the children she represents.

In the following interview, Terri shares her experience and insights about working with children and families, how to communicate and work with child’s counsel, and how parents can support their children through the process.

Brittany: What are child lawyers and what do they do?

Terri: Child lawyers represent children in both family law and child welfare matters.
Like any lawyer-client relationship, my responsibility is to advise and work with my client to advance their position. When representing children, that role can look a little different – though my responsibility is still with my client and what is in their best interests.

When a Judge must make a decision about parenting, the “best interests of the child” are paramount – they must decide what best protects the child’s physical, psychological, and emotional safety, security, and well-being.
When representing children, the child’s age and level of maturity is important as that factors into the role that I play in any family law proceeding. Typically, I take on 1 of 2 roles in a family law matter:

  1. Instructional advocate - if the child is old enough and mature enough to express their views and preferences, my role looks similar to a conventional lawyer-client relationship. I help the child to understand the parts of the legal proceedings that are relevant to them, I listen to their views and preferences, I give them legal advice, and I advocate to advance their position; or
  2. Interests & entitlement advocate – if the child is not old enough or mature enough to formulate their views and preferences and provide instructions, my role is to advocate for their interests and entitlements. I would also utilize this role if the child has a disability that impairs his or her ability to make decisions and instruct counsel. In the interests and entitlements role, on an objective basis, I undertake an examination of all family ties, educational interests, personal, culture, religious, and other important factors in the child’s life. Next, I would put forth to the court evidence to support those interests and entitlements that favour the child without forming an opinion on what may be best for the child.

From time to time, I may also be appointed to act as amicus curiae, which is a legal term that essentially means a “friend of the court”. As a friend of the court, I am there to provide impartial assistance to the Judge that will help them make a decision. In this role, I remain neutral and do not advocate for the child’s views or preferences. My focus in this role is to investigate all possible options for the child’s care. To do this, I may reach out to people in the child’s life, such as teachers, daycare providers, and religious leaders.

Brittany: How do you work with the child’s parents or other family members?

Terri: As child’s counsel, my primary responsibility is to advocate for the child’s views, preferences, and interests. However, I also work collaboratively with parents and other family members to achieve a positive outcome for the child. Although there are no formal guidelines or rules that lawyers must follow when working with a child in family law matters, the process initially involves the following steps:

  • Upon being retained or appointed by the court, I will request copies of all historical court filings from the parents or their counsel. This will enable me to review the file and gain a comprehensive understanding of the legal issues at hand, as well as the respective positions of each parent.
  • I will then contact both parents (or their counsel) to schedule a meeting with the child at each parent’s home. This is important as it allows me to observe the child in each environment.
  • During my initial meeting with the child, I will spend approximately 15-minutes with both the child and their parent to explain my role and the process. While I will exchange niceties with the parents, I stress that I am there to represent their child.
  • Once I have established a rapport with the child and their parent, I will ask the child if they are comfortable chatting with me one-on-one and where they would feel most comfortable to do so (usually the child suggests their bedroom).
  • During our one-on-one meeting, I ask the child questions to establish a baseline of sorts and help them to feel more comfortable. Sometimes we color together or talk about their favourite things, such as their stuffed animals or art on their walls.

Brittany: What do you need to know from parents or other family members?

: To ensure that the child’s interests are prioritized, I maintain clear boundaries when communicating with parents or family members involved in a legal dispute. While I understand that parents may have their own wishes and preferences, the respective positions of each parent are often conflicting. So, I strongly encourage parents to trust that I have thoroughly reviewed all the relevant court filings and understand their position and the legal issues at hand.

In rare instances, where it is absolutely necessary for a parent or family member to express their perspective, I ask that they submit their concerns in writing via e-mail. It is important to note that all communications with me must be copied to the opposing party or their counsel to ensure transparency. This also helps to avoid any miscommunication and minimize any potential concerns of bias.

For self-represented litigants who may not have as many court documents on file, I may request a concise 1 to 2-page summary of their position and concerns. Again, that summary would need to be shared with all parties involved in the legal dispute.

My primary focus is to advocate for the child and facilitate a positive outcome. As such, I limit communication with parents and guardians to avoid being pulled into conflicts. While I understand that they may have much to discuss, my attention remains solely on ensuring that the child’s interests are met.

Brittany: Should parents or guardians ask their kids about what they told their counsel?

: During my initial meeting with the child, I stress the importance of confidentiality. I assure them that anything they share with me will remain strictly between us, unless they give me permission to share it. This is crucial in helping children feel comfortable and safe when discussing their thoughts and feelings with me.
I also make it clear that what we discuss is not a secret, but rather it is their choice whether or not to share our conversations with their parents or guardians. If they do not feel comfortable sharing, I advise them to let their parents know that they spoke with their lawyer and that the conversation was confidential.

Brittany: What if a child shares what they talked about with their lawyer?

: It is not uncommon for children to share information about their conversations with me, and it is perfectly acceptable for parents to listen if their child chooses to share. However, it is important for parents to be mindful of the boundaries of confidentiality that exist between me and their child. If a child has told their parent something in confidence, the parent should be respectful of that and not ask too many questions or press for details that the child may not be comfortable sharing. It is important for children to feel that they can trust and confide in their lawyer without fear of retribution or negative consequences. So, if your child does share information with you, it is best to validate their feelings and let them know that you heard them and support them.

Brittany: What if a child shares something concerning that the parent wants to discuss with their lawyer?

: If a child shares something concerning and clarification is needed, I ask that those concerns be submitted in writing via e-mail. As a child’s counsel, my goal is to create a safe and supportive space for them to share their thoughts and feelings. I will not cross-examine a child on information shared, but I may follow-up in a thoughtful manner to ensure that I fully understand the concerns. For instance, if a child tells me that one parent allows them to miss school, I may ask if the other parent does the same. It is important to note that my role is to ask questions and engage in an open dialogue, with the goal of working collaboratively with everyone involved to determine what is best for the child.

Brittany: In your experience, what are some of the most common mistakes that parents make during a family law case involving their child?

: One of the most common mistakes that parents make is discussing legal proceedings with the child. As well, sometimes parents share negative feelings about the other parent with their child. It is important to remember that children often feel caught in the middle of a parenting dispute, and hearing negative comments or discussions can be emotionally harmful for them. I advise parents to be mindful of their conversations and to keep them away from the child, in private and out of earshot.

Brittany: How do you ensure that the child’s bests interests are represented during a legal process?

: My primary goal is to advocate for the child’s views, preferences, and interests, and I do this by listening carefully to what the child has to say and advocating for their needs and wishes. If both parents agree, I may also write a reporting letter that outlines the child’s views and instructions, as well as any relevant information that can assist in resolving the matter without going to court. I believe in being transparent and forthright about what was said and discussed during meetings with the child, so long as the child has given me permission to share, and I work to ensure that their voice is heard and their needs are prioritized throughout the legal process.

Brittany: How do you communicate with children to help them understand their involvement in the legal matter?

Terri: I first establish a rapport with the child and gauge their level of understanding. Based on this, I adjust my language and tone to speak at their level so they can comprehend what’s going on.

Sometimes, using visual aids like drawing pictures can be helpful in explaining complex legal concepts. For example, we may draw a picture of a courtroom and discuss the different roles and responsibilities of the people involved.
In front of parents, I emphasize the importance of the child’s opinion and perspective in legal proceedings. I explain to the child that their parents may have their own ideas of what’s best, and a Judge doesn’t know anything about you. The child is the most important person, and it is my job to share what they want and what they think about things. By doing so, I help children feel heard and valued while also ensuring that their best interests are at the forefront.

Brittany: What inspired you to work as a children’s lawyer and what motivates you to continue?

: When I started practicing law, I felt disillusioned and uncertain about whether law was truly my passion. I thought about leaving law and pursuing other avenues, such as teaching or continuing with my education in psychology and becoming a child psychologist. It wasn’t until I met an extraordinary female mentor who introduced me to the field of child representation and child welfare law that everything fell into place. At that moment, I felt as if I had found my calling and my path forward in the practice of law. For the past 25 years, I have dedicated myself to this field, and I have never looked back. Every morning, I wake up excited and motivated knowing that I have found my passion and path in the practice of law.

Brittany: Can you share an example of a particularly challenging case you have worked on? How did you approach it?
Terri: Over the years, I have had many complex files; however, a few certainly stand out as being exceptionally high conflict.

I had a very high conflict file where the parents were waging a war against each other and placed their children smack in the middle. Unfortunately, the children felt so conflicted between their parents that their positions kept on shifting as to how they wanted to spend time between their parents’ homes. By the time we got to the trial, the children's instructions to me had changed five times. Sadly, parents sometimes do not comprehend the impact that their words and actions may have upon their children. My role and my approach is to focus on what is best for the children and ensure that the court focuses on their best interest.

When it comes to matters of family law, child’s counsel lawyers can greatly benefit both parents and their children. By having a neutral and trained professional to advocate for the best interests of the child, parents can ensure that their child’s voice is heard and considered during the legal proceedings.

If you are considering hiring a child’s counsel lawyer for your child, or if you have questions about what that might look like for your case, we encourage you to take the next step and reach out to our team at Coach My Case for support. Our experienced legal coaches and paralegals can provide the guidance and resources you need to make informed decisions and advocate effectively for your child’s rights. To learn more, book a free 20-minute consultation with one of our family law experts today!