When parents are going through a divorce, their children are not often participants in litigation. Occasionally, though, a child may want to become a full party to the litigation. Such a situation was recently at issue in a decision from the Court of Appeal for British Columbia.

Background

The mother is a Canadian citizen living in British Columbia. The father is an American citizen living in Maryland. The couple were legally married in Japan in December 1999. They had been planning a wedding ceremony in Vancouver for the following summer. The mother became pregnant with their daughter (“S”) six weeks before the ceremony was scheduled to take place. The night before the ceremony the father decided he did not want to go through with things. He left for New York, where he lived at the time.

S was born in 2001 and has lived her entire life with her mother. The mother and the father entered into a separation agreement in March 2002, which stated the mother was to have “sole custody and guardianship” of S, with the father having generous access, including at least two periods of in-person access each year. A divorce was granted in January 2003.

The father and S enjoyed a positive relationship until she was about five years old. Despite what was laid out in the separation agreement, the father didn’t ever enjoy regular access to S. The mother only allowed him to see S under her supervision. This caused the mother and father to enter into what ended up being 17 years of litigation, resulting in four decisions. While the courts had made orders granting the father unsupervised access, S repeatedly refused to leave with him or to make contact with him. In 2007 she refused to leave for a trip to the United States with the father, locking herself in the bathroom. Two years later, when S was dropped off at an agreed upon meeting place, she again locked herself in a bathroom and refused to come out, resulting in the police being called. At other times she would meet him at the door but refuse to talk to him.

In August 2009 the court ordered a report to explore the possibility of parental alienation playing a role in the deterioration of the father’s relationship with S, meaning there was some concern that the mother may have manipulated S into rejected her father. A report was eventually produced that suggested S had an psychologically unhealthy relationship with her mother, and that S had been alienated from her father.

S was concerned that the report could lead to her being required to have contact with her father. She filed an application under Section 203 of the Family Law Act in July 2016, seeking to be made a full party to the proceedings with the assistance of a lawyer, who would be working for her. Section 203 states:

(1)The court may at any time appoint a lawyer to represent the interests of a child in a proceeding under this 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.

(2)If the court appoints a lawyer under this section, the court may allocate among the parties, or require one party alone to pay, the lawyer’s fees and disbursements.

The judge determined that while the father and mother did have a strained relationship which may impact their ability to represent S’s best interests, the degree of the conflict did not reach the level of severity required under Section 203. The judge also found that the appointment of a lawyer for S would not be necessary to protect the best interests of the child.

Instead, the judge appointed an amicus curiae. who’s responsibility would be to advise the court in respect to S’s best interests, but not work for her directly. The court ordered the Attorney General to appoint and pay for the amicus curiae, even though a lawyer had offered to act as one on a pro bono basis. The judge’s reasons were that “ The overriding principle is that the Crown, through the court, has jurisdiction to act to protect children and to do whatever is necessary to protect those interests that best ensure the safety, health and well-being of children when parents are unable or unwilling to act appropriately.”

S appealed both the court’s appointment of an amicus curiae as well as its denial for her to hire her own lawyer and be a full party to the proceeding.

Decision at Appeal

S sought to expand the definition of the Section 203, arguing the trial judge relied on too literal an interpretation of the law. However, the court determined the judge acted in conformity to the rules of statutory interpretation, which were laid out by the Supreme Court of Canada in 1998, and state “Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.”

The court also determined that “ In this case, S.’s voice has been heard directly, through affidavits and an interview with the chambers judge, and indirectly through the report of the psychologist. It is possible that she may also be called upon to give further evidence, or provide additional observations at the trial.”

Despite S wishing to have her own lawyer, the court agreed with the trial judge that it would no be necessary to represent her best wishes.

However, the court did side with S on the ground of appeal related to the appointment of an amicus curiae, stating that one should only be appointed to deal with “specific and exceptional circumstances.” The trial judge failed to mention any such circumstances. As a result, the court set aside the order of appointment.

The lawyers at Borden Family Law know the emotional difficulty of working through a divorce and issues such as custody and access to children. We help our clients focus on what is best for their children while also navigating the complexities of the family law system. Please call us at 905-576-6090 or reach us online to schedule a consultation today. Please remember to ask us about our flat fee payment options as well.