When will a Court in Alberta Appoint Children’s Counsel (a lawyer for the Child)?

When parents separate and cannot agree on parenting arrangements, one question that sometimes comes up is whether the child should have their own lawyer. Children’s counsel is a lawyer who represents or assists in presenting the child’s perspective to the court. While this may sound like a straightforward solution, the reality is more nuanced.

The Divorce Act does not provide for the appointment of children’s counsel however section 16(3)(e) directs that in determining the child’s interest and entitlements, the Court shall consider “the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained.” In Alberta, the decision in DCE v DE, 2021 ABQB confirms that there is no fixed rule for when children’s counsel will be appointed. Instead, it depends on the specific circumstances of each case.

In this blog, I will review the legal test courts apply when deciding whether to appoint children’s counsel, as well as the different roles that counsel may play once appointed.

Framework for the Appointment of Children’s Counsel

a. as a starting point, a child capable of forming views is entitled to express those views freely in all matters affecting the child, with those views being given due weight in accordance with the child’s age and maturity;

This does not automatically justify appointing counsel, the Court shall determine how the child’s views are best placed before the court.

b. the issues raised by the parties and potentially affecting the child should be identified and the Court may review, on a preliminary basis, the extent to which the child’s interests are engaged;

The more the dispute turns on the child’s lived experience relationships, preferences, or allegations affecting their wellbeing the more likely their perspective will matter. But where the issues are more structural or logistical, children’s counsel may add little.

c. the Court must determine whether the child has attained an age and degree of maturity such that the child’s views should be considered;

There is no fixed age threshold. Instead, the court looks at whether the child can express independent views, and (if relevant) can instruct counsel. Older children are more likely to meet this standard. Younger children may not.

d. the specific purpose of the appointment and how the child will participate in the process should be explained by identifying the proposed role of independent counsel; if a direct advocate role is contemplated, the Court may consider whether the child is capable of instructing counsel;

e. the nature of the information to be collected from the child should be identified (e.g. facts, evidence, opinion, preference, or choice);

f. the Court may explore whether counsel for the child is necessary or desirable, rather than relying on another means to hear from the child; and

Courts will ask whether the same information could be obtained through less intrusive means, such as a Voice of the Child Report, or a parenting or psychological assessment. If those tools are adequate, children’s counsel will generally not be appointed.

g. the Court may take into account countervailing factors such as the negative impact of involving the child in the litigation process, the parties’ ability to pay, the likely probative value of the child’s information or abuse of process.

Finally, courts consider the broader impact of the appointment, including cost, delay, and whether involving the child more directly in litigation may be harmful.

Role of Children’s Counsel

Children’s counsel can take on different roles depending on the circumstances. In any application counsel must identify which role is appropriate. The different roles of children’s counsel are:

a. Direct Advocate

This is a traditional lawyer-client relationship where counsel takes instructions from the child, maintains confidentiality, and advances the child’s preferences and views. This role will be appropriate where the child is mature and capable of directing their own representation.

b. Interests and Entitlements Advocate

Here, counsel forms an independent view of what the child’s interests and entitlements are and advances that position. The child’s views may inform that analysis, but they are not determinative. This role is often considered where the child is younger or where there are concerns about influence.

c. Friend of the Court (or “Amicus curiae”)

In this role counsel assists the court rather than advocating for a specific outcome. This can involve gathering and testing evidence and ensuring the court has a complete evidentiary record. This is a more neutral function and may not involve advancing the child’s preferences.

Puszczak V. Puszczak, 2005 ABCA 426

The Alberta Court of Appeal confirmed that certain circumstances normally favour the appointment of counsel, including:

1. cases involving allegations of child abuse;
2. cases where an apparently intractable conflict exists between the parents;
3. cases where the child is seemingly alienated from one or both parents;
4. where real issues arise about cultural or religious differences affecting the child;
5. where the sexual preferences of either or both of the parents or some other person having significant contact with the child are likely to impinge on the child’s welfare;
6. where the conduct of either or both of the parents or some other person having significant contact with the child is alleged to be anti-social to the extent that the child’s welfare is seriously impinged;
7. where issues arise about significant medical, psychiatric or psychological illness or personality disorder in relation to either party or a child or other persons having significant contact with the child;
8. any case in which, on the material filed by the parents, neither seems a suitable guardian;
9. any case in which a child of mature years is expressing strong views, which if given effect would involve changing a longstanding custodial arrangement or a complete denial of access to one parent;
10. where one of the parties proposes that the child will either be permanently removed from the jurisdiction or permanently moved to a place within the jurisdiction that would greatly restrict or for all practical purposes exclude the other party from access to the child;
11. cases proposing to separate siblings;
12. custody cases where none of the parties is legally represented; and
13. applications to the Court’s welfare jurisdiction relating in particular to the medical treatment of children where the child’s interests are not properly represented by one of the parties.

These are not automatic triggers. They are indicators of cases where the child’s perspective may require more formal presentation.

Conclusion

If you are considering whether to involve children’s counsel in your matter, it is important to approach the issue strategically. These applications can be helpful in the right case but they are not automatic, and they are not always the best tool.

Understanding when children’s counsel will genuinely assist the court and when other options may be more effective can make a significant difference in both outcome and cost. If you are navigating a parenting dispute and are unsure whether this step is appropriate, seeking early legal advice is key.