Litigation Guardians for Minors (LTB)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-04-29
CLNP Page ID:	2328
Page Categories:	Hearing Process (LTB)
Citation:	Litigation Guardians for Minors (LTB), CLNP 2328, <{{{shortlink}}}>, retrieved on 2024-04-29
Editor:	Smcgrory
Last Updated:	2023/12/20

Rule A10 - Litigation Guardians

A10.1	This Rule applies where a person seeks to be a litigation guardian for a party. It does not apply where no litigation guardian is required as a result of the nature of the proceeding.
A10.2	Persons are presumed to have the mental capacity to manage and conduct their case and to appoint and instruct a representative.
Litigation Guardian Declarations
A10.3	A litigation guardian for a minor under the age of 18 is required to file a signed declaration in the form designated by the tribunal, confirming: the litigation guardian's consent to serve in this role; the minor's date of birth; the nature of the relationship to the minor; that any other person with custody or legal guardianship of the minor has been provided with a copy of the materials in the proceeding and a copy of the SJTO practice direction on litigation guardians; that the litigation guardian has no interest that conflicts with those of the person represented; an undertaking to act in accordance with the responsibilities of a litigation guardian as set out in Rule A10.8; and that the litigation guardian is at least 18 years of age and understands the nature of the proceeding.

Rule A10 - Litigation Guardians

A10.1	This Rule applies where a person seeks to be a litigation guardian for a party. It does not apply where no litigation guardian is required as a result of the nature of the proceeding.
A10.2	Persons are presumed to have the mental capacity to manage and conduct their case and to appoint and instruct a representative.
Litigation Guardian Declarations
A10.3	A litigation guardian for a minor under the age of 18 is required to file a signed declaration in the form designated by the tribunal, confirming: the litigation guardian's consent to serve in this role; the minor's date of birth; the nature of the relationship to the minor; that any other person with custody or legal guardianship of the minor has been provided with a copy of the materials in the proceeding and a copy of the SJTO practice direction on litigation guardians; that the litigation guardian has no interest that conflicts with those of the person represented; an undertaking to act in accordance with the responsibilities of a litigation guardian as set out in Rule A10.8; and that the litigation guardian is at least 18 years of age and understands the nature of the proceeding.
A10.4	A litigation guardian for a person who lacks mental capacity to participate in the tribunal proceeding must file a signed declaration in the form designated by the tribunal, confirming: the litigation guardian's consent to serve in this role; the nature of the litigation guardian's relationship to the person represented; reasons for believing that the person is not mentally capable of participating in the proceeding; the nature and extent of the disability causing the mental incapacity; that no other person has authority to be the person's litigation guardian in the proceeding; that any person who holds power of attorney or guardianship for the person for other matters has been provided with a copy of the materials in the proceeding and a copy of the SJTO practice direction on litigation guardians; that the litigation guardian has no interest that conflicts with the interests of the person represented; an undertaking to act in accordance with the responsibilities of a litigation guardian as set out in Rule A10.8; and that the litigation guardian is at least 18 years of age and understands the nature of the proceeding.
Naming and Removing a Litigation Guardian
A10.5	Upon the filing of a complete declaration as required by this Rule and unless refused or removed by the Tribunal, the person may act as litigation guardian for the party.
A10.6	The Tribunal will review the declaration and may direct submissions by the parties on whether the litigation guardian should be refused pursuant to Rule A10.7.
A10.7	Upon review of the declaration, or at any later time in the proceeding, the Tribunal may refuse or remove a litigation guardian on its own initiative or at the request of any person because: the litigation guardian has an interest that conflicts with the interests of the person represented; the appointment conflicts with the substitute decision making authority of another person; the person has capacity to conduct or continue the proceeding; the litigation guardian is unable or unwilling to continue in this role; a more appropriate person seeks to be litigation guardian; or no litigation guardian is needed to conduct the proceeding.
Responsibilities of Litigation Guardians
A10.8	A litigation guardian shall diligently attend to the interests of the person represented and shall take all steps necessary for the protection of those interests including: to the extent possible, informing and consulting with the person represented about the proceedings; considering the impact of the proceeding on the person represented; deciding whether to retain a representative and providing instructions to the representative; and assisting in gathering evidence to support the proceeding and putting forward the best possible case to the tribunal.
A10.9	No one may be compensated for serving as a litigation guardian unless provided for by law or a pre-existing agreement.
A10.10	When a minor who was represented by a litigation guardian turns 18, the role of the litigation guardian will automatically end.

Birth parent

6 (1) The birth parent of a child is, and shall be recognized in law to be, a parent of the child. 2016, c. 23, s. 1 (1).

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Equal entitlement to decision-making responsibility

20 (1) Except as otherwise provided in this Part, a child’s parents are equally entitled to decision-making responsibility with respect to the child. 2020, c. 25, Sched. 1, s. 2.

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If parents separate

(4) If the parents of a child live separate and apart and the child lives with one of them with the consent, implied consent or acquiescence of the other, the right of the other to exercise the entitlement to decision-making responsibility with respect to the child, but not the entitlement to parenting time, is suspended until a separation agreement or order provides otherwise. 2020, c. 25, Sched. 1, s. 2.

Divorce Act (R.S.C., 1985, c. 3 (2nd Supp.))

ARTICLE 40

• 1 The authorities of the Contracting State of the child’s habitual residence, or of the Contracting State where a measure of protection has been taken, may deliver to the person having parental responsibility or to the person entrusted with protection of the child’s person or property, at his or her request, a certificate indicating the capacity in which that person is entitled to act and the powers conferred upon him or her.
• 2 The capacity and powers indicated in the certificate are presumed to be vested in that person, in the absence of proof to the contrary.
• 3 Each Contracting State shall designate the authorities competent to draw up the certificate

Chapter I – Scope of the Convention

• 2 For the purposes of this Convention, the term “parental responsibility” includes parental authority, or any analogous relationship of authority determining the rights, powers and responsibilities of parents, guardians and other legal representatives in relation to the person or the property of the child.