Do I have the right to a lawyer in my child protection case?

4. Ask the court to order the government to pay for your lawyer

If Legal Aid Ontario (LAO) won’t pay for your lawyer and you’ve tried but can’t afford to pay for one on your own, you can ask the court to order the government to pay for your lawyer.

This is sometimes called an order that the Ministry of the Attorney General provide “state-funded counsel”.

This type of order can be very hard to get. It will not happen in most cases.

You have fill out a Notice of Motion to ask for state-funded counsel. You also need to an Affidavit to explain why you need this.

You have to prove all of these things:

  • Your relationship with your child is at risk because of the order the (CAS) is asking for. The court will look at what CAS asks for in its and your past relationship with your child.
  • You can’t take part in court fairly without a lawyer. The court looks at how complex your case is and your ability to read, write, and present evidence in court.
  • You can’t afford a lawyer and have done your best to get one. For example, you’ve applied to LAO and appealed their decision not to pay for your lawyer.

You need to serve your Notice of Motion and Affidavit on:

  • CAS,
  • other to your case, and
  • the Attorney General of Ontario.

Sometimes, it’s a good idea to serve LAO. Then LAO can explain to the court why they refused your application and appeal.

In some cases, the court might decide that you don’t have a right to your own lawyer paid for by the government. But the court might appoint an “amicus curiae”, which means a “friend of the court”. This is a court-appointed lawyer who helps the court, not just one to a court case.

An amicus curiae lawyer can help protect your rights to take part in the court process and can help present your evidence to the court properly.

Because the amicus curiae lawyer is appointed by the court, they follow the court’s instructions, not yours. These types of orders are also rare, but made where the court decides that an amicus curiae is needed to ensure a fair process.

You, another party, or the court can ask for an amicus curiae. You can do this if the court decides not to order the government to pay for your lawyer.

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