The Court of Appeal, in J.E.S.D. v. Y.E.P. 2018 BCCA 286, found that a 17 year old child who had persistently refused any contact with her father was not entitled to her own lawyer to argue for her own desired outcome in a hearing in court about parenting time. The panel found that the Family Law Act, which includes provisions to elicit a child’s views, were sufficient to satisfy the requirements of the Hague Convention on the Rights of Child. The Convention, although not directly applicable to Canadian family law legislation, emphasizes that procedural safeguards will help protect the best interests of the child. One such recommendation is for “appropriate legal representation”.
The Family Law Act (s. 203) does provide that a court can order that a child have their own lawyer as a full advocate, but only if the conflict between the parents is so severe that they cannot act in the best interest of the child. Further, it must be shown that counsel is required to protect those best interests. The courts in B.C. have rarely found it necessary to appoint counsel for a child in the context of a private dispute between parents. Here, the mother was impaired in her judgment about the child’s best interests while the father was not in a position to promote the child’s best interests because he had not been given an opportunity to do. The estrangement between father and daughter prevented him from being an effective parent. It would be for the trial judge to test the allegations of alienation and to determine an appropriate remedy. This particular child had already spoken her mind through her own affidavits, affidavits of her mother, expert reports, and a judicial interview.
Noting that “inherent…is the recognition that circumstances will exist when the child’s wishes do not conform to what is in her or her best interests”, the court in this case found that it was contrary to the child’s interests to place her in an adversarial role against her father or court-appointed experts. Here, the child’s wishes were one factor among many that would help a court make its determination.
In short, unless the government wishes to again fund child advocates as it did under the now- repealed Family Relations Act, children’s voices will continue to be heard in court through parents and experts, rather than through direct legal representation.