Lawyers who practice family law know the important role a children’s lawyer plays in high-conflict family cases. As the child’s advocate, a children’s lawyer ensures that a child’s voice is heard and considered in court proceedings. Many provinces in Canada have legislation that provides for the appointment of a children’s lawyer in family law proceedings.
In British Columbia, section 203 of the Family Law Act1 is the authority for appointing a children’s lawyer. Under this provision, there is no presumption that it entitles a child to legal representation in a family law proceeding. In fact, British Columbia is the only province in Canada where a children’s lawyer is only appointed if the conflict between parties is so severe they cannot act in the child’s best interests.
In this article, we address three concerns with this threshold test and make recommendations for change. Amending section 203 is important, as children’s views often get lost in adversarial legal processes. Having a legal representative for a child can improve their well-being, protect and promote their legal rights and give them a voice.
Current Issues with Section 203
First, under section 203, a party who wishes to obtain a lawyer for their child must establish that the parties are not able to act in their own child’s best interest. The obvious flaw in this requirement is that most parents would be reluctant to present evidence that demonstrates an inability to act in their child’s best interest. Moreover, requiring parties to bring forward evidence about the level of conflict between themselves and the other party only inflames conflict further.
Second, the focus is on the parents’ level of conflict rather than the best interests of the child. This runs contrary to the spirit and intent of family law legislation and jurisprudence in British Columbia, specifically that the best interests of a child are paramount above all other considerations. There are a multitude of reasons why a children’s lawyer should be appointed in a family law proceeding that are not related to the parties’ level of conflict. The court’s primary consideration should be whether appointing counsel is necessary to protect a child’s legal interests. Families are complex, as are family files that warrant a children’s lawyer’s involvement. For example, parties may suffer from substance misuse and be unable to act in the best interests of a child. In this case, parties might not conflict with one another, thus failing to meet the threshold test under section 203.
Third, section 203 as currently drafted severely limits the likelihood that the court will order or appoint legal representation for children in proceedings, even when the court determines it would be in the child’s best interests to have representation. The language of section 203 limits judicial discretion by requiring the court to find that conflict is so severe it is impacting the parties’ ability to act in their child’s best interests.
Suggested Changes
The threshold to determine whether a children’s lawyer should be appointed in a family law proceeding should not depend on the level of conflict between the parties involved. Section 203 should be amended to entirely remove any reference to conflict and, instead, to mirror language in other provinces such as the Yukon, Alberta, Ontario, Quebec and Prince Edward Island. These changes would give the judiciary greater discretion in determining whether to appoint a children’s lawyer in a family law proceeding, if they find it to be in the child’s interests.
1 Family Law Act, SBC 2011, c 25, s 203. | ↩
Written by Kendra Hewson, Lindsay Kenney & Michael Zimmerman on behalf of CBABC’s Children’s Law Section Executive.