In British Columbia, it is possible for children to have a children’s lawyer appointed to represent their interests. However, these situations are rare, and only permitted in exceptional circumstances. This is because the Courts in British Columbia do not want to involve children in family law proceedings between parents and/or cause further emotional harm or acrimony.
When two parents separate, often times they may find themselves in disagreement over what is in the best interests of their children. These disagreements can very quickly turn into acrimonious family law proceedings, where children are often caught in the middle of a cross fire and asked to take sides. In some situations, older children wish to voice their wishes and be in control of their future. Children’s voices are important, and often needed. There are a few ways to relay children’s wishes to our Courts in BC. One of those ways is to appoint a dedicated children’s lawyer to represent the child’s wishes only, and not those of the parents’.
In What Situations Can a Children’s Lawyer be Appointed?
Generally speaking, a children’s lawyer is only appointed for a child in very high conflict cases. This is a fairly high threshold. Most applications for the appointment of a lawyer for a child are not granted. Courts often prefer other methods to have the views of the child taken into account, such as a views of the child report.
Under the Family Law Act, the court may at any time appoint a lawyer to represent the interests of a child. The court needs to be satisfied that:
- the degree of conflict between the parties is so severe that it significantly impairs the parties from acting in the best interests of the child, and
- the children’s lawyer is necessary to protect the best interests of the child.
How Do I Find A Children’s Lawyer in BC?
Children or parents may contact the Society for Children and Youth of British Columbia’s Child and Youth Legal Centre to obtain legal representation. Family lawyers who are interested in representing children in family proceedings must make an application to become a Roster member at this society.
The Society for Children and Youth of British Columbia normally appoints a lawyer and provides funding for the lawyer. However, the Court may choose to allocate the cost of the child’s lawyer among the parties.
When Do You Consider the Child’s Opinion?
Generally, the views of children under the age of 12 are not often considered, or alternatively, given very little weight. Pursuant to s. 37(2)(b) of the Family Law Act, when determining the best interest of a child, the court must consider the views of the child “unless it would be inappropriate to consider them.” There are situations where it is inappropriate to consider the views of the child such as:
- When the child is too young or immature (often under the age of 12), or
- When the child’s views are being improperly influenced by a parent or others.
Both the Family Law Act, and the United Nations Conventions on the Rights of the Child, require courts to consider the views of children when making decision regarding children.
When Have the BC Courts Appointed a Children’s Lawyer? When Have They Not?
Below are some of the most recent cases out of the British Columbia Supreme Court and the Court of Appeal where the courts dealt with this issue:
- In M.K.S. v. L.B.S., 2022 BCPC 79, Judge Doulis ordered the appointment of a lawyer from the Child and Youth Legal Centre for a 16 (almost 17) year old. There were concerns regarding the Child self harming, including a recent suicide attempt. There was also an ongoing dispute between the parents as to where the child should live. Judge Doulis found that given the age of the child, her views should be given paramount consideration. The child’s recent medical crisis raised concerns regarding the her ability to act in her own self interest. The courts rules it was appropriate to appoint counsel for the child to help her define and articulate her views.
- In the case of S.T.C. v. D.J.B., 2021 BCSC 1987, the court agreed to appoint legal counsel from the Child and Youth Legal Centre. The children were 13 and 16 years old. The parties had already gone through a two-week trial, which included a s. 211 report. The parties continued to have conflict over parenting arrangements. Justice Mayer stated: “In high conflict cases such as this case, legal counsel can advocate the interests and views of the children, challenge expert parenting reports, cross-examine parents on their affidavit evidence, and call further expert evidence when appropriate.”
- In Clayton v. Clayton 2021 BCSC 525 Justice MacIntosh declined to appoint counsel. The case involved a 12 year old who was refusing to have parenting time with his father. Justice MacIntosh found that it was not in the best interest of the child to “lawyer up” given the facts.
- In the case of A.W. v. J.M., 2020 BCPC 108 Judge Merrick, after three days of testimony, suggested that the parties consider appointing a lawyer for a 7 (almost 8) year old child. This was due to the level of conflict between the parties. The parents essentially agreed with the appointment of counsel for the child. The court found that there was a lack of reliable evidence regarding the views of the child. The courts ordered that a lawyer from the Child and Youth Centre be appointed to represent the child.
- In M.C. v. B.A., 2020 BCSC 1205, Justice Steeves declined to appoint a lawyer for a 12 year old child. Partially because the child was a vulnerable and impressionable individual with genuine developmental issues. Additionally, the child had been wrongfully withheld from the mother for over a month. Also there were concerns about the father influencing the views of the child.
- In J.E.S.D. v. Y.E.P. BCCA 286 the court declined to appoint legal counsel for a 17 year old girl who had consistently refused contact with her father. The courts opined that “Adversarial proceedings can easily destroy goodwill between the parties, and impede the development of healthy relationships. It would be invidious, and contrary to (the child’s) best interests, to place her in an adversarial role against her father or against experts who have been engaged by the court.”
To assess the best interests of your child and obtain advice on how to proceed on custody and parenting issues, please contact us. We specialize in parenting matters and reaching a resolution for your concerns.