August 16, 2022

In a previous blog (found here), I commented on the role of the Office of the Children’s Lawyer (the “OCL”) in representing the interests of a child under the age of 18, in cases in Ontario involving estates and trusts.

There are various nuances to the OCL’s role in such matters. While settlements impacting minors require court approval pursuant to Rule 7.08 of the Ontario Rules of Civil Procedure, a notable intricacy lies in Rule 7.08(4)(c). The Rule provides, “On a motion or application for the approval of a judge under this rule, there shall be served and filed with the notice of motion or notice of application, (a) an affidavit of the litigation guardian setting out the material facts and the reasons supporting the proposed settlement and the position of the litigation guardian in respect of the settlement; (b)  an affidavit of the lawyer acting for the litigation guardian setting out the lawyer’s position in respect of the proposed settlement; (c)  where the person under disability is a minor who is over the age of sixteen years, the minor’s consent in writing, unless the judge orders otherwise; and (d)  a copy of the proposed minutes of settlement…[Emphasis added].”

In other words, when a “major-minor” (i.e. an individual over 16 years of age, but still a minor) is impacted by the settlement of a proceeding, his/her consent to the settlement in writing is to form part of the settlement approval motion materials. This requires the OCL (through its counsel or otherwise) to discuss with the major-minor about, in part, the ongoing litigation, the negotiations  which took place, and the cost-benefit analysis of proceeding in court versus agreeing to a settlement to finally conclude the matter. This presents the OCL with a tricky position, as when minors are involved in such litigation, instructions come from the OCL itself, and not from the minor individual. In order to comply with Rule 7.08(4)(c), the OCL is in turn charged with ensuring the major-minor understands and appreciates all aspects of a contemplated settlement, and the consequences of a major-minor’s neglect or refusal to consent to the agreement reached. Notably, it can always be left to a judge’s discretion as to whether a settlement may be approved, even in the absence of a major-minor’s consent.

Rule 7.08(4)(c) reinforces the need for parties to carefully consider all aspects of a settlement impacting a minor, particularly when a major-minor is involved and a judge may want to hear from the OCL as to what that individual’s position on the proposed settlement is. At all times, the best interests of the minor (major, or not) are paramount.