Independent legal counsel may be appointed by the Court to represent children in high-conflict parenting disputes. Latitude Family Law lawyers Amanda, Danielle and Riley have experience representing children.
Why do Courts consider the views and preferences of children when Courts make decisions regarding their care?
Article 12 of the United Nations Convention of the Rights of the Child, which has been ratified by Canada, says that children who are capable of forming their own views have a right to express those views freely in all matters affecting them, with their views being given due weight in accordance with the child’s age and maturity. In particular, children shall be provided the opportunity to be heard in any judicial proceedings affecting the child, either directly or indirectly, through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.
Canada’s Divorce Act says that when the Court makes a parenting order, the Court shall only consider the best interests of the child. The Divorce Act includes a list of factors for the Court to consider when determining the child’s best interests, which includes “the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained.”
When Will the Court Appoint Independent Counsel for a Child?
Judges have the authority to decide whether or not to appoint a lawyer for a child. Any party to the dispute (for example, one of the parents) may apply to the Court for an Order appointing a lawyer to represent their child. The Judge hearing the application may appoint counsel for the child if it is in child’s best interests and if it is necessary and desirable in the circumstances (Puszczak v. Puszczak, 2005 ABCA 426). The court will consider a number of factors before making the decision.
In DCE v. DE, 2021 ABQB 909 Justice Feth of Alberta’s Court of Queen’s Bench discussed appointing independent counsel for children in family law matters. Just Feth noted:
- As a general rule, children who are capable of forming their own views about matters affecting them are entitled to express those views freely and to have those views given due weight in accordance with their age and maturity.
- Hearing from an affected child does not necessarily require appointing counsel for the child or obtaining a “Voice of the Child” report from a psychologist. Reliable hearsay evidence from a parent or neutral third party may work or the child may be able to provide their views directly through an affidavit, oral testimony, judicial interview, video or letter.
- The Court must consider whether obtaining the child’s views will be harmful to the child, for example if the child is reluctant to share views and preferences or does not understand the consequences of sharing this information.
- The Court must avoid abuse of its process, for example if one parent attempts to use the child as a means of harassing the other parent, spying on the other parent, coercing settlement, or as a “fishing expedition” to look for evidence.
- Appointing independent counsel for a child may serve many objectives, including:
- Ensuring that the Court is provided with all relevant evidence;
- Supporting the emotional well-being of the child;
- Focusing the parents on the child’s needs;
- Facilitating the cooperation of older children who need to feel heard;
- Advancing the child’s own rights;
- Preserving the integrity of the legal process; and
- Promoting a just determination of the issues affecting the child.
- The Court must be satisfied that the child is old enough and mature that their views should be considered. There is no specific age threshold for a child to have a lawyer or to presume that the child’s views should be considered. This analysis will depend on the specific child and the specific circumstances.
- Children’s views are seldom determinative, so their ability to make decisions or provide opinions does not need to be perfect. Children are typically asked to provide views and preferences, not make choices.
- When determining whether a child is old enough and mature enough to have their views considered, the Court may look at:
- The nature and complexity of the issues;
- Whether the child has expressed interest in providing views;
- Whether the child is being asked to provide facts rather than draw conclusions or give opinions;
- Whether the child’s decision-making may be compromised by their relationship with one of the parties;
- Whether the child can gather relevant information and weigh competing benefits and disadvantages when developing their viewpoint;
- Whether the child reasonably appreciates the consequences of giving their viewpoint;
- Whether the child has made good decisions in other situations;
- How the child performs and behaves in school;
- Any assessment of the child’s behavior and decision-making capacity provided by professionals such as psychologists, counsellors, physicians and teachers; and
- The parents’ observations of the child’s behavior and decision-making ability.
- The Court of Appeal gave a list of circumstances that normally favour the appointment of counsel in Puszczak v. Puszczak, 2005 ABCA 426. This list does not cover every appropriate circumstance, and even if a case falls within one of these circumstances it does not automatically mean that counsel must be appointed. Judges still have discretion to decide whether the appointment of independent counsel is appropriate. The list of circumstances provided by the Court of Appeal includes:
- Cases involving allegations of child abuse;
- Cases where an apparently intractable conflict exists between the parents;
- Cases where the child is seemingly alienated from one or both parents;
- Cases where real issues arise about cultural or religious differences affecting the child;
- Cases where the sexual preferences of either or both of the parents or some other person having significant contact with the child are likely to impinge on the child’s welfare;
- Cases where the conduct of either or both parents or some other person who has significant contact with the child is alleged to be anti-social to the extent that the child’s welfare is significantly impinged;
- Cases where issues arise about significant medical, psychiatric, or psychological illness or personality disorder in relation to either party or a child or other person who has significant contact with the child;
- Cases where neither parent seems to be a suitable guardian for the child;
- Cases where the child is of mature years and is expressing strong views, which if given effect would involve changing a longstanding parenting arrangement or denying parenting time to one parent;
- Cases where one of the parties proposes that the child will be permanently removed from the jurisdiction or permanently moved to a place that would greatly restrict or exclude the other parent’s parenting time;
- Cases proposing to separate siblings;
- Cases involving parenting time disputes where none of the parties has a lawyer; and
- Cases involving court applications for the Court to order medical treatment of a child where the child’s interests are not being represented properly by one of the parties.
- It is also relevant to consider whether the parties can pay for independent counsel. Legal Aid Alberta may provide the independent legal counsel for the child, but the parties may be required pay Legal Aid Alberta for that expense in the future. If parents are paying for their child’s lawyer they may have less money available to pay for their child’s needs.
- The Court should consider the specific purpose for the appointment of independent counsel for the child. Three roles are generally recognized:
- Friend of the Court
- In this role, the independent lawyer takes instructions from the Court and may assist by arranging to investigate facts, often with the assistance of third parties, and question witnesses at a hearing. The lawyer makes sure the Court has all relevant evidence and addresses the court about legal issues. The lawyer remains neutral, does not need to give the child’s views, and is not expected to take a position about the outcome. Information provided by the child is not confidential and may be shared with the Court.
- This appointment may be appropriate if the child lacks full capacity or does not instruct the lawyer.
- Best Interests Guardian
- This role is similar to Friend of the Court, but the lawyer can advocate a position on behalf of their own assessment of the child’s best interests. The lawyer is not bound to advocate for the child’s views, but will usually tell the Court what the child’s views are.
- Direct Advocate
- In this role, the lawyer communicates the child’s views to the Court and tries to advance the child’s objectives. The lawyer advises the child about choices, maintains lawyer-client confidentiality, and advances the child’s instructions.
- Friend of the Court
- In selecting or customizing these roles, the following usually need to be addressed:
- Whether the lawyer will take instructions from the child;
- Whether the lawyer may advocate for a position based on their assessment of the child’s best interests;
- Whether the lawyer may advocate for a position that is contrary to the child’s expressed wishes;
- Whether the lawyer is responsible for collecting evidence and ensuring that all relevant evidence is presented to the Court, even if the parties do not introduce the evidence themselves;
- Whether the lawyer may have record disclosure and discovery, examine or cross-examine any witness at a hearing or trial, or call witnesses;
- Whether the lawyer may retain another professional, such as a psychologist or social worker, to assist in collecting information from the child;
- Whether communications between the lawyer and the child will remain confidential, and any exceptions to confidentiality (such as disclosures of child abuse);
- Whether the lawyer may communicate directly with the parents, collect information from third parties like healthcare providers, counselors and schools, and meet with the child without the parent present;
- Whether the lawyer takes further direction from the Court and if so, how and when direction is provided;
- The manner that the lawyer will report to the Court, including whether the child’s information is evidence;
- Whether the lawyer may initiate appeals, take other steps authorized by the Court, and seek costs; and
- Whether the lawyer’s role will change over the course of the proceeding.
- If a lawyer is being asked to investigate facts or ascertain and report on a child’s views, the Court should consider whether the lawyer is sufficiently trained and experienced to complete this work. Information about the experience, skills and training of the proposed lawyer for the child can assist the Court in determining whether the assigned lawyer can adequately perform the functions ordered by the Court.
- The Court prefers that the proposed role for the child’s lawyer be specified when a party is asking the Court to appoint a lawyer for the child.
- The child’s lawyer must be independent from the parties.
After considering the above, Justice Feth developed a framework for Judges to follow when considering a request to appoint independent counsel for a child:
- As a starting point, a child capable of forming views is entitled to express those views freely in all matters affecting the child, with those views being given due weight in accordance with the child’s age and maturity;
- The issues raised by the parties and potentially affecting the child should be identified and the Court may review, on a preliminary basis, the extent to which the child’s interests are engaged;
- The Court must determine whether the child has attained an age and degree of maturity such that the child’s views should be considered;
- The specific purpose of the appointment and how the child will participate in the process should be explained by identifying the proposed role of independent counsel; if a direct advocate role is contemplated, the Court may consider whether the child is capable of instructing counsel;
- The nature of the information to be collected from the child should be identified (e.g. facts, evidence, opinion, preference, or choice);
- The Court may explore whether counsel for the child is necessary or desirable, rather than relying on another means to hear from the child; and
- The Court may take into account countervailing factors such as the negative impact of involving the child in the litigation process, the parties’ ability to pay, the likely probative value of the child’s information or abuse of process.