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CHILDREN’S REPRESENTATION IN HIGH-CONFLICT DIVORCE

Sep 22 2014

The new Family Law Act came into force in March of 2013, and brought with it significant change in family law in BC.

One of those changes is section 203 of the Family Law Act, which confirms that in certain circumstances, children may be entitled to their own legal representation.  This essentially means that a child may be appointed a lawyer of his/her own to advocate for the child’s interests in custody and divorce proceedings, separate and apart from either of their parents’ counsel.

The reasoning behind this new provision is simple.  Emotions often run high in contentious family law cases and there is growing concern that throughout court processes in high conflict situations, the focus on the child’s best interest can take a back seat to the disputing parents.

 

The Law relating to Family Law Divorce and Access Proceedings in BC

Within the Family Law Act, a child is defined as a person who is under 19 years of age (s.1).

Legally, children do not have the capacity to conduct or defend themselves in a court proceeding unless they are 16 years or older, or a spouse or a parent according to s.201(1) of the Family Law Act.

Under the provision of s.203(1)(a) and (b) Family Law Act, the court may at any time appoint a lawyer to represent the interests of a child where it is satisfied that two conditions are met, namely:

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.

A lawyer for a child will only be appointed in the most extreme, high conflict circumstances.

 

Questions and Answers

 1.    Is there a minimum age requirement for a child to get representation?

The Family Law Act does not provide an age requirement for a child with respect to s.203 and the appointment of a “Children’s Lawyer”.

The Department of Justice in the article “The Voice of the Child in Divorce, Custody and Access Proceedings” recommends children as young as five have the ability to communicate his or her views to a lawyer. [1]  This article suggests a child should be expected to meet certain conditions before counsel is appointed to act as the child’s advocate:

1)    ability to communicate voluntarily to counsel, instructions which are rational and reasonable;

2)    ability to clearly and fully understand counsel’s advice; and

3)    appreciate the nature and legal significance of the judicial proceeding.

2.    Who chooses the lawyer?

The court is responsible for appointing a lawyer for the child under s.203(1) Family Law Act.  Lawyers so appointed should have five or more years of practice experience in Family Law. The Department of Justice suggests lawyers representing children should have the ability to communicate with young people, comprehend child psychology, possess skills in interviewing children and knowledge of community resources.[2]

3.    Who pays for the lawyer?

The court may allocate among the parties, or require one party alone to pay, the lawyer’s fees and disbursements (s.203(2) Family Law Act).

Currently in Nanaimo and Victoria, the Access ProBono Organization under the Children’s Lawyer Program offers legal representation without charge for children involved in high conflict cases by providing a “voice to the children” aged 10 – 18 in court hearings.  While this program is only offered in those two cities, there is hope to expand the program to other locations.[3]

4.    If a child has representation, how can a parent reduce undue pressure on the child to agree with counsel?

The lawyer appointed is the advocate for the child.  As with any legal representation, the lawyer provides guidance and advice, but ultimately, the child will decide what positon or view is presented in court by their lawyer.

5.    Are there any protections in place to avoid the child being taken advantage of by counsel?

In B.C., all lawyers are required to act within the Code of Professional Conduct for British Columbia.  This Code provides safeguards to ensure lawyers act within their capacity and meet the BC Code standard practice which protects all clients and the public, young and old alike.

Rule 3.2-9 BC Code provides that while representing clients with diminished capacity due to their minority age or disability a lawyer must “as far as reasonably possible, maintain a normal lawyer and client relationship”.

6.    What should someone with children who is considering divorce consider in light of the current legislation?

1)    Every decision should be made in the Child(ren)’s best interests

  • The Family Law Act by s.37 makes clear the focus in all family law matters is on the best interests of the child(ren).

2)    There are resources available (legal and otherwise)

  • It is important for parents to remember there are resources available to help guide every parent through the important decisions they are required to make during family law matters.  A helpful starting point is attending a Parenting After Separation course offered through the Justice Education Society of B.C.  This is a free, three hour workshop available to parents dealing with separation and all the related issues such as access, guardianship and support.  Sessions are offered in New Westminster, Richmond and Port Coquitlam.[4]

3)    alternate (out of court) dispute resolution is the most efficient, cost effective and least detrimental        method to solve family law disputes

  • The resounding theme throughout the newly enacted legislation is the goal of resolving family law disputes outside the courtroom.  For the sake of all parties involved, particularly the children, alternative dispute resolution is the primary starting point for a collaborative resolution to family disputes.

7.    What are the pros and cons of this law from your perspective?

Allowing for the appointment of legal representation for children should be welcomed as a step in the right direction to understanding children’s thoughts and concerns in court proceedings, and allowing their views to be heard.

However, there is concern within the legal profession that further involvement of children into the adult-oriented court processes could prove more harmful than beneficial to a child’s experience.

Every case, parent and child is different and so appointing a lawyer for a child will rightly be considered on a case-by-case basis taking into account all the surrounding circumstances.

8.    Are there any interesting cases underway?

The legislation is new, and there has been little opportunity for the courts to interpret this section.

To date, there is one BC Supreme Court case which applied s. 203, which was pronounced on November 7, 2013. (K.L.K v E.J.G.K.  2013 BCSC 2030).

In that case, the parties were married for 5 years.  At issue was parenting arrangements of their two children, aged 11 and 8 at the time the matter was before the court in 2013.  The mother sought an order to appoint a lawyer for the children which was ultimately denied by the judge.

The history of this case was long and difficult with many interim applications, trials and appeals which included but were not limited to accusations of sexual abuse made by the mother against the father.  The judge noted that the parties’ strife concerning the children was likely to continue.

In applying s.203 Family Law Act the court found that the conflict between the parties affected the father’s capacity to appreciate and act on the children’s best interests to some slight degree.  The mother’s overprotectiveness impaired her ability to act in the children’s best interests, to a greater extent than the father’s.  The mother continually convinced herself that the father was “harming the children” and would look to the father’s parenting in a negative way.  The judge associated this to her overprotective attitude; “her adherence to this view impairs her ability to act reasonably when it comes to the children spending time with their father” (at para. 68).

However, the judge ultimately held that the mother was appearing to better appreciate reality more clearly now than she had in earlier proceedings because in the year leading up to the hearing the mother did not manufacture complaints against the father.

For this reason, it was held that the mother’s capacity to act in the children’s best interest was not significantly impaired and as such, a lawyer for the children was not appointed under s.203 Family Law Act.

 

Points to Remember

The family justice system puts the best interests of the child affected by a family law dispute as paramount in every decision it makes.

Even without children attending court or personally discussing the issues with a lawyer, they can still be negatively affected throughout the court process by their interactions with and perceptions of their parents.

It is always most efficient and cost effective for all parties involved to resolve the issues in dispute outside of the court process, through alternative dispute resolution which should always be the parties’ first port of call.

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