What Do the Courts Consider When a Party Applies for Independent Legal Counsel for a Child?

In the recent ABQB decision, DCE v DE, 2021 ABQB 909, Justice K.S. Feth cast light on the factors the court should consider when appointing independent legal counsel for under-aged children.

In this contested litigation the father applied to the court for independent legal representation for the children of the relationship who currently reside primarily with the mother. Justice Feth did not allow the application.

Before providing the framework for considering independent counsel, Justice Feth comprehensively described several aspects of that framework that are of key importance.

First, the court provided the relevant considerations for assessing whether the child’s age and maturity are such that their views should be considered (paragraph 25):

1. The nature and complexity of the issue for which the child’s input is sought;
2. Whether the child has expressed an interest in offering a viewpoint;
3. Whether the child is primarily being asked to provide facts rather than engage in higher reasoning such as drawing conclusions or formulating options;
4. Whether the child’s decision-making might be compromised by the child’s relationship with a party, including emotional attachment, dependency, estrangement or undue influence;
5. Whether the child has the ability to gather relevant information and to weigh competing benefits and disadvantages when developing a viewpoint;
6. Whether the child reasonably appreciates the consequences of expressing a viewpoint;
7. Whether the child has made good decisions of a substantial nature in other situations;
8. The child’s performance and behaviour in school;
9. Assessments of the child’s behaviour and decision-making capacity provided by professionals such as psychologists, counsellors, physicians and teachers; and
10. Parental observations about the child’s behaviour and decision-making ability.

Then, Justice Feth discussed three general roles that counsel may play for a child: friend of the court, best interests guardian and direct advocate. The friend of the court is the least onerous and is mostly an organizational position ensuring that all relevant documents and facts are before the court on behalf of the child. The best interests guardian serves the same function as the friend of the court except the lawyer may also advocate a position based on their assessment of the child’s needs and the child’s best interests. The direct advocate is a conventional lawyer-client relationship whereby the lawyer responds to the direction and desires of the child.

In choosing between which of these roles are best fit, at paragraph 34 the court provided the following issues to be addressed:

1. Whether legal counsel will take instructions from the child;
2. Whether legal counsel may advocate for a position based on their assessment of the child’s best interests;
3. Whether counsel may advocate for a position contrary to the child’s express wishes;
4. Whether counsel is responsible for collecting evidence and ensuring that all relevant evidence is before the Court, even if the parties decline to introduce that evidence;
5. Whether counsel may have record disclosure and discovery, examine or cross-examine any witness at a hearing or trial, and call witnesses;
6. Whether counsel may retain another professional, such as a psychologist or social worker, to assist in collecting information from the child;
7. Whether communications between counsel and the child remain confidential or privileged, and any exceptions to confidentiality, such as disclosure of child abuse;
8. Whether counsel may communicate directly with the parents, collect information directly from third parties such as healthcare providers, counsellors and schools, and meet with the child in the absence of the parents;
9. Whether counsel takes further direction from the Court and if so, how and when direction is provided;
10. The manner of reporting to the Court, including whether the child’s information is evidence;
11. Whether counsel may initiate appeals, take other steps authorized by the Court, and seek costs;
12. Whether counsel’s role will change over the course of a proceeding.

The determination of whether the child’s views should be considered, and the role of the independent counsel are important factors in the 8-part framework Justice Feth used to consider whether independent counsel should be appointed for a child laid out at paragraph 41.

1. 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;
2. The issues raised by the parties and potentially affecting the child should be identified and Court may review, on a preliminary basis, the extent to which the child’s interests are engaged;
3. the court must determine whether the child has attained an age and degree of maturity such that the child’s views should be considered;
4. 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 is contemplated, the Court may consider whether the child is capable of instructing counsel;
5. the nature of the information to be collected from the child should be identified (e.g. facts, evidence, opinion, preference, or choice);
6. the court may explore whether counsel for the child is necessary or desirable, rather than relying on other means to hear from the child; and
7. 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.

Justice Feth stressed that the above framework must always have a solid foundation in the best interests of the child.

Another option to ensure the child is given a proper voice in the proceedings proposed by Justice Feth is an Evaluative Intervention, governed by Family Law Practice Note 7, wherein a Voice of the Child report is conducted by a Parenting Expert. This shall only be ordered if the parties are able to cover the cost of the Intervention.