A new BC Leave to Appeal granted to have child advocate appointed case just came down this week. The recent BC Court of Appeal decision granted leave to appeal an adjournment to trial of a family law application to appoint a child advocate for a 12 year old child.
BC Leave To Appeal Granted To Have Child Advocate Appointed Tel: 604 602 9000
The Statutory Two-Part Test
Under s. 203(1), the court may at any time appoint a lawyer to represent the interests of a child in a proceeding under the Act if the court is satisfied that:
(a) the degree of conflict between the parties is so severe that it significantly impairs the capacity of the parties to act in the best interests of the child; and
(b) it is necessary to protect the best interests of the child. British Columbia Laws
It is a conjunctive test as Both branches must be met to succeed.
Criticism Of The BC Appointment of Child Advocate Test
British Columbia is the only province or territory in Canada where the threshold for exercising the statutory power to appoint a children’s lawyer is a degree of conflict between the parties so severe they cannot act in the best interest of the child. The CBA BC has actually advocated to lower this threshold to align BC with other jurisdictions. Lorne N MacLean KC and the rest of his top tier family lawyers handle the most high conflict parenting law cases on a daily basis.
K.L.K. v. E.J.G.K., 2013 BCSC 2030 is a leading case applying s. 203, the parties had two children aged 11 and 8. The mother sought an order appointing a lawyer for the children. The judge denied the application. Despite a long and difficult history that showed some impact on the children of the mother’s inability to appreciate her convictions the father was harming the children were inaccurate was not enough to meet the “significantly impairs” standard in branch (a).
The strict construction of the test was followed in J.E.S.D v. Y.E.P., 2017 BCSC 495 and the cases cited in it. The judge’s decision not to appoint a lawyer was upheld by the B.C. Court of Appeal: J.E.S.D v. Y.E.P., 2018 BCCA 286
In the recent BC Court of Appeal decision where BC Leave To Appeal Granted To Have Child Advocate Appointed occurred was Ireland v. Ireland an Appeal Chambers Justice concluded:
[4] The eldest child is 12 years old. He has been in contact with the Child and Youth Legal Centre (CYLC), and it appears they are willing to provide counsel to represent him in the proceedings. There was evidence before the chambers judge that the child’s counsellor and other professionals are of the view that a child advocate would be beneficial.
[5] The chambers judge heard the application on December 8 but declined to decide on the appointment of an advocate, adjourning the issue to trial. I understand no trial date has been set.
4 Part Test To Grant Leave To Appeal Interim Family Law Act Order Met
The Court of Appeal Justice went on to apply the 4 part test and found the Appellant had met the four part test for leave to be granted from an interim order under the Family law Act as follows:
[11] First, given the limited jurisprudence from this Court on s. 203 of the FLA, I am prepared to accept that the points raised on appeal would have some significance for the practice.
[12] Second, the appeal would also have significance for the action itself, as the child’s best interests are a central consideration. There are obvious benefits to resolving the question of whether to appoint an advocate before proceeding to trial, particularly given that trial dates have yet to be set. In the circumstances, it does not appear that the appeal would unduly hinder the action, aside from the more general point that the parties would be much better off spending their energy parenting rather than litigating.
[13] Third, I accept that the appellant has demonstrated some merit to the appeal. The question on an application for leave to appeal a discretionary order is whether there is an arguable case that the judge below erred in principle, made an order that is not supported by the evidence, or made an order that will result in an injustice: Hagwilneghl v. Canadian Forest Products Ltd., 2011 BCCA 478 at para. 31 (Chambers).
[14] The reasons for judgment in this case are extremely brief and do not explicitly engage with the factors set out in s. 203 of the FLA,or the evidence presented by the appellant. It may be that the factual and legal bases for the decision are discernible when the reasons are read in the context of the record as a whole. However, on the face of the materials before me, I find that the appellant has demonstrated sufficient merit to the appeal to justify the granting of leave.
Best BC Child parenting and Guardianship Dispute Lawyers Tel: 604 602 9000
Given the Justice’s comments on a dearth of authority in the area this case could have a huge impact on child parenting disputes moving forward. If you have questions about the need for an Appointment of a Child Advocate in your high conflict family law case feel free to reach out to our tier 1 complex child parenting and guardianship lawyers.
