Children’s Wishes Counsel and Voice of Child representation is becoming more common in child parenting time and responsibilities disputes. Hearing the “Voice of the Child” is becoming increasingly important in high-conflict family law disputes these days. In today’s blog, senior Children’s Wishes Counsel and Voice of Child lawyer Peter Graburn explains when a lawyer may be appointed to represent a child in a child custody and parenting dispute. In fact, one recent Ontario Court of Appeal case (see: GR. v. GK., 2017 ONCA 108 at para. 67) stated:
“This appeal demonstrates the importance of the emerging movement to incorporate the voice of the child in all matters concerning minors.”
Children’s Wishes Counsel and Voice of Child Lawyers
In a previous article our multiple award winning child custody and parenting lawyers indicated how recent changes to the federal Divorce Act (as well as a long-standing provision under the United Nations Convention on the Rights of the Child) have put increased emphasis on hearing the “Voice of the Child” as to their wises and preferences regarding their own parenting arrangements. There are many ways to ‘hear’ (ie. receive) this Voice, including hearing the oral evidence of the child (in exceptional circumstances only) or child welfare/social worker, psychologist or psychiatrist (ie. Practice Note 7 or 8 in Alberta) as to their ‘wishes and preferences’.
Child’s Views Counsel – When Is It Appropriate?
Another way to hear the “Voice of the Child” is to have a lawyer appointed specifically for the child(ren). – this is “Child’s Counsel”. But what would happen if one parent does not agree to hear the “wishes and preferences” of the child through Child’s Counsel? What then are the factors and considerations a Court will look at in determining whether Child’s Counsel should or should not be ordered?
Role of Child’s Counsel
Before we look at these factors and considerations, two (2) points. First, there are three (3) basic roles Child’s Counsel can play in acting on behalf of the child(ren) in a parenting dispute, depending on the child’s age and the particular situation, being:
- Amicus Curiae (Friend of the Court) – where counsel investigates the facts (sometimes with the assistance of a social worker or psychologist) and puts forward all the relevant evidence to assist the Court determine all the options available as to what is “in the child’s best interest”. This role may be appropriate where the child lacks full capacity or does not / cannot instruct counsel;
- Litigation Guardian (“best interests of the child”) – where counsel balances the child’s stated wishes and preferences with what counsel believes is “in the child’s best interest”. This is usually done with younger children whose stated wishes are clearly not best for the child;
- Direct Representation (instructional advocate) – where (as for any competent adult) counsel advocates for the child’s stated wishes and preferences. This is usually done where the child is old enough to give well thought-out reasons for their wishes.
Second, when Child’s Counsel takes an Advocate role, there are limits on what they can say and do in Court. They can call and cross-examine witnesses and make submissions to the Court, but they can’t give evidence (ie. can’t act as a witness). The Alberta Court of Appeal has stated [see: RM v. JS (2013 ABCA 441) at para. 28] (although not uniformly supported by some lower Courts):
“It seems to me that, absent consent, counsel cannot be both an advocate and a witness on an important issue… It is to be borne in mind that the function of counsel in any Court is that of an advocate; he is there to plead his client’s cause upon the record before the Court and does not in any sense occupy the dual position of advocate and witness.”
A Framework for Appointing Counsel
So what then are the specific factors and considerations Alberta Courts will look at in determining whether Child’s Counsel should or should not be appointed? In the recent case of DCE v. DE (2021 ABQB 909), Alberta Court of Queen’s Bench Justice K. Feth (in noting that such guidelines were “underdeveloped”) set out a framework for considering whether independent Child’s Counsel should be appointed, being (at para. 41):
- a) 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;
- b) 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;
- c) the Court must determine whether the child has attained an age and degree of maturity such that the child’s views should be considered;
- d) 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;
- e) the nature of the information to be collected from the child should be identified (e.g. facts, evidence, opinion, preference, or choice);
- f) 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
- g) 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.
Aside from setting out this framework for considering the appointment of Child’s Counsel, Justice Feth went on to comment on the need for hearing the Voice of the Child, stating (at para. 42):
In LMH v. SRH (citation omitted), my colleague Germain J. stated in obiter dicta that the appointment of legal counsel for children is an “unusual procedure” arising in “exceptional circumstances” and that the “presumption should be against this type of appointment.” However, the practice has evolved since then. The emotional and legal benefits to children in having an opportunity to express their opinions and fears to an impartial person are increasingly recognized: (reference omitted). In my view, the contextual analysis is better served by a review of the various principles rather than relying on such a presumption.
BC Children’s Wishes Counsel and Voice of Child Lawyers
Fraser MacLean of our Vancouver office is currently involved in a high conflict family law case where counsel for the child may be involved and he points out the sections in BC that involve Children’s Wishes Counsel and Voice of Child representation. Official BC government explanatory notes for the BC Family law Act explain that independent counsel can be appointed in parenting disputes where it is necessary to protect the child’s interest on the following conditions:
- Children’s lawyers can be a useful tool in highly conflicted parenting cases. They can refocus attention on the child’s best interests and help ensure that decision-makers have appropriate information when parents are unwilling or unable to provide it.
- However, use of children’s lawyers is not appropriate in the vast majority of cases, as it tends to draw the child further into the conflict. It may increase the adversarial nature of the proceedings, and therefore may work counter to the child’s best interests. Research shows that the best way to manage high conflict families is to get them out of court and into more interventionist approaches where they can resolve underlying issues.
- If an appointment is made, the court may allocate among one or both of the parties all or part of the lawyers’ fees and disbursements.
- Section 203 replaces section 2 of the Family Relations Act with a section that allows the court to appoint a lawyer to represent a child in high conflict parenting disputes where it is necessary to protect the child’s interest.
In The British Columbia Court of Appeal decision in 2018 JESD v YEP and SD the court upheld a trial judge’s decision against allowing a child to have their own legal representation in a child custody and parenting time a responsibility dispute:
Ms. D. and Mr. P. are involved in long-running litigation over Mr. P.’s access to, and parenting relationship with, their daughter, S., who is now 17 years old. S. applied to become a full party to the litigation, and to have counsel appointed to represent her. The judge refused that relief but, of his own motion, appointed an amicus curiae without defined functions. He ordered the Attorney General to provide public funding for the amicus.
On appeal, held: Appeal allowed from the order appointing an amicus. Appeal dismissed from the denial of an order appointing counsel to represent S. The judge made no error in finding that the requirements for appointing counsel under s. 203 of the Family Law Act were not met. He erred, however, in resorting to the parens patriae jurisdiction to appoint amicus. Amici can be appointed pursuant to the court’s power to control its own process, but should be appointed only to deal with specific and exceptional circumstances and he erred in ordering the AG to pay.
In C.D.M. v. K.M.A.W., 2019 BCSC 608, the court was not satisfied that the parties’ nine-year-old child was mature enough to recognize his best interests and instruct counsel, and considered that it would not be in his interests to draw him into the litigation as an adversary to one or both of his parents (para. 91).
Call Our Experienced Children’s Wishes Counsel and Voice of Child Lawyers
The increasing use and importance of hearing the “Voice of the Child” demonstrates the growing shift from looking at parenting disputes from a parent-focused approach to a more child-focused approach. But how far will this shift go in implementing the “wishes and preferences” of the child(ren) in Court decisions in parenting matters? While hearing the “Voice of the Child” is becoming increasingly important in high-conflict family law disputes these days, so is the associated adage: children have a “voice, but not a choice”.
