L.M.H. v. S.R.H., 2010 ABQB 769

Court of Queen ’ s Bench of Alberta Citation: L.M.H. v. S.R.H., 2010 ABQB 769 Date: 20101206 Docket: 4813 004064 Registry: Ft. McMurray Between: L.M.H. Plaintiff (Respondent) - and - S.R.H. Defendant (Applicant) _______________________________________________________ Memorandum of Case Management Interlocutory Decision (The Appointment of Counsel for a Child) of the Honourable Mr. Justice A. W. Germain _______________________________________________________ 1. Introduction [ 1 ] The parties to this litigation were married November 1998 and separated May 2007. They have been in the courts ever since.

The parents were blessed in their relationship with a son, B.H., born in 1999. The child is 11 years old today and will be 12 years old shortly after the school year that ends in June of 2011.

[ 2 ] Bluntly, the litigation between the parties has not been pleasant. There have been emergency protection orders, the involvement of the Director of Child and Family Services, criminal proceedings, as well numerous Court of Queen’s Bench family law chambers hearings. On May 8, 2008 a request was made to the former Chief Justice, the Hon. Alan Wachowich, for the appointment of a case management justice.

That request was granted, and counsel were notified on May 15, 2008 that I would fill that role. [ 3 ] An assessment was completed during the case management period by a skilled psychologist conversant with family law issues. The conclusions of that professional led, in part, to my issuing an extensive case management order dated March 27, 2009. This order was approved as to form and content by both legal counsel.

Without going into great detail, the case management order generally arranged that the child would live with the father in a northern Alberta community while the mother would live nearer to Edmonton and have access to their son on a regular basis. [ 4 ] On November 30, 2010 another case management order was sought, initially by the mother but then joined by the father. Both parties request that the order of March 27, 2009 be reviewed and adjusted.

One of the father’s requests was for the appointment of legal counsel to act for the child. [ 5 ] The purpose of this case management decision is to discuss the appointment of legal counsel for a child. 2. The Facts [ 6 ] On November 24, 2010 the mother, who was the applicant at the November 30 hearing, filed a lengthy affidavit to 1. support her application to cite the father in contempt for having restricted the mother’s access to her son, and 2. to review and vary the March 27 order giving her primary care of the child.

Upon being served with these materials the father’s legal counsel cross-applied for certain other changes to the March 27 order which could potentially restrict the mother’s access. The cross application includes a request that the Court appoint legal counsel to represent the child. [ 7 ] However that is not the only step that the father took in relation to the child being represented by his own lawyer. Before the application to appoint legal counsel was made, the father actually hired a lawyer for the child.

Surprisingly, that lawyer accepted the assignment without court ratification or appointment, interviewed the child, and then expressed the details of the interview in an affidavit now filed before the court. [ 8 ] The mother objected to the father’s unilateral appointment of this “independent” legal counsel to act for the child.

In an e-mail disclosed to the court and attached to the independent lawyer’s affidavit the mother suggested possible litigation against that lawyer and his law firm. [ 9 ] These reasons discuss the efficacy and appropriateness of the procedure taken by the father and reflect on the proper procedural and legal approach to a child having separate representation in a family law proceeding. 3. Legal Analysis [ 10 ] The Court has two bases on which it may order a person (typically a lawyer) represent the interests of a child. Family Law Act , S.A. 2003, c.

F-4.5, ss. 95(3) and 95(4) authorize appointment and allocation of costs:

95(3) The court may at any time appoint an individual to represent the interests of a child in a proceeding under this Act. 95(4) Where the court appoints an individual under this section, the court shall allocate the costs relating to the appointment among the parties, including the child, if appropriate. [ 11 ] A parallel common-law authority exists, as a superior court of intrinsic jurisdiction may appoint a representative for a child as part of its parens patriae jurisdiction: Strobridge v. Strobridge (1994), 1994 CanLII 875 (ON CA) , 18 O.R. (3d) 753, 115 D.L.R. (4th) 489 (Ont.

C.A.) , cited with approval in Puszczak v. Puszczak , 2005 ABCA 426 at para. 12 , 384 A.R. 57 [ “ Puszczak ” ] . [ 12 ] No matter how authorized, the Alberta Court of Appeal in Puszczak has made it clear that the appointment of legal counsel for children is an unusual procedure. In a custody or access dispute the presumption should be against this type of appointment. Legal counsel should only be appointed in exceptional circumstances where the court can ascertain that it is in the best interest of the child (para. 10).

That approach, is consistent with the core value of Canadian family law jurisprudence which relates to a child. As Justice Abella observed in Syl Apps Secure Treatment Centre v. B.D. , 2007 SCC 38 at para. 45 , [2007] 3 S.C.R. 83, “[t]his Court has confirmed that pursuing and protecting the best interests of the child must take precedence over the wishes of a parent …”. [ 13 ] Joint parental consent does not automatically result in the appointment of a lawyer to represent a child.

Obviously, a unilateral decision of one parent to “appoint” counsel for a child in a high-conflict family law scenario is even less appropriate. [ 14 ] The facts in Puszczak are similar to those in the present matter, as in that case the father who wanted custody hired a lawyer for the child without the consent of the mother. The Court of Appeal vacated the order of a chambers judge who confirmed that appointment. The appeal court observed that: [10] A court has the discretion to appoint counsel for a child, but the court must first be satisfied that the appointment is in the child's best interests .

In other words, that discretion must be exercised within certain parameters. While it may be desirable to ascertain a child's wishes in a contested custody dispute, the manner in which this ought to happen requires careful consideration. The three most common methods are judicial interview, the appointment of an independent expert able to ascertain those views, and the appointment of independent legal counsel . These roles were noted by Vertes J. in Kalaserk v. Nelson, 2004 CanLII 95247 (NWT SC) , 2005 NWTSC 4, [2005] 8 W.W.R. 638 (N.W.T.S.C.) referring to the

article by Christine Davies, "Access to Justice for Children: The Voice of the Child in Custody and Access Disputes" (2004), 22 Can. F. L. Q. 153. [Emphasis added.] [ 15 ] Further, any lawyer who represents a child must operate in an independent and neutral manner. Therefore, when a court takes the unusual step of appointing legal counsel for a child, that appointment must be absolutely neutral and unbiased, in appearance, procedure, and effect.

This requires that the court: 1. determine whether the child has the capacity to instruct a lawyer, 2. determine whether that appointment is necessary and in the best interests of the child, and then 3. make the selection of the lawyer to represent the child. Obviously, identification of a suitable lawyer may involve consultation with the counsel for the parties on whether they can agree on a suitable candidate member of the bar. [ 16 ] The reasons for this court-directed approach should be self-evident.

First, and to state the obvious, a child has no capacity to contract for a lawyer and therefore despite how the appointment is “spun” by legal counsel, any such appointment which was not directed by the court is, in fact, a parental appointment of a second lawyer who is notionally acting for the child.

[ 17 ] That fact cannot help but breed misunderstanding and distrust in what is already a potentially volatile situation. “Volatile” certainly describes the situation between these two parents, where the mother has alleged parental alienation, and the father has admitted (with an explanation) that the mother’s access to her son has not occurred with the frequency contemplated in the case management order.

I believe that until a court appointment has been made, any member of the Alberta bar who is a candidate to represent a child in a family matter should restrict his or her involvement in the case to an expression of willingness act on behalf of a child. [ 18 ] The litigant may well ask what difference does it make, to a judge, that a parent acted first by hiring a proposed lawyer for his child, particularly if that judge ultimately concludes that legal counsel should be appointed. The difficulty is more than simply timing!

What is critical is the perception of, and actual neutrality, that must pervade high-conflict family law cases. [ 19 ] In my view, it would be surprising for a Court to after-the-fact confirm an appointment of a lawyer for a child in a high-conflict family law case where that lawyer has already been retained by one of the parents. Such a confirmation could add a dimension of suspicion to what is an already stressful litigation, and make it impossible for the appointed lawyer to serve the interests of the child.

Any such after-the-fact ratification of an appointment which is absent the informed and clearest consent of the other parent should be discouraged as any such approach does not satisfy the “nose” test. [ 20 ] In this particular case, the retention and initial payment of the lawyer by the father has occurred in the context of where both parents are extremely distrustful of each other, their abilities, and their motives. That places the child’s lawyer in an awkward position.

In this case, when the lawyer approached and interviewed the child, he and his law firm were threatened with lawsuit by the parent who had not consented to the “appointment”. [ 21 ] This situation results in prejudice (real or apparent) to all participants. Here the “child’s” lawyer is threatened with a lawsuit for approaching the child without the consent of one of its legal guardians; this causes emotional stress to the lawyer and his law firm, and also puts in jeopardy the value of that lawyer’s opinion, assessment, and submissions to the court.

By example, if the lawyer subsequently reported to the court that the child needs more time with his mother, an appearance could arise that this statement was simply a self-vested interest being expressed to reduce the risk of litigation. Expressing a contrary view could lead to the allegation that adopting a position that favours the father was in retaliation for the threat of lawsuit. All of this is avoided when the court makes the appointment.

I also note one does not need the threat of a lawsuit to create this kind of conflict; it is a necessary consequence of one parent being inappropriately involved in aspects of the appointment of a lawyer to represent a child. [ 22 ] Any dispute over the independence of a child’s lawyer has another and very important negative consequence. It is not in the best interest of a child to have the neutrality and independence of that child’s in-court representative brought into question.

In Puszczak at paras. 28, 30 , the Court of Appeal said: [28] If counsel is to be appointed for the child, it is imperative that the counsel, at the outset, be free from the appearance of alignment with the position of one of the parents .

This is particularly so where the child's interests may conflict, at least on the face, with the interests of one of his or her parents. … [30] … Regardless of how those wishes come before the court, it must be done in a considered manner that affords the child a voice but does not unnecessarily embroil him further or exacerbate what is already a high conflict matter . [Emphasis added.] [ 23 ] A litigant who feels that their infant children require independent legal counsel should have the courts rule on that before legal counsel is engaged, and certainly before counsel interviews the child.

Puszczak clearly directs that approach: para. 27. In this high-conflict case the fact that a member of the bar approached a child shows an lack of judgment, even accepting, as I do, that the lawyer attempted to act in good faith in his handling of this matter. What other impression can a bright 11-year-old boy get when a lawyer interviews him about how he is treated while in his mother ’ s home?

Even 11-year-olds know that those type of questions are the result of some kind of concern. [ 24 ] The courts can provide the appointed lawyer with legal authority to conduct his investigation and to act as counsel, and preempt the allegations of bias and misconduct that are made in this case. That benefits everyone.

[ 25 ] The courts also bring both neutrality and expertise to the appointment process. A judge is well positioned to identify a lawyer with a reputation for expertise in family law and perhaps some experience in the type of family conflict dynamic that has arisen here ( Puszczak , at para. 27 ), and as well take steps to ensure the child’s lawyer has no direct or indirect association with either parent.

The court’s discretion ensures the neutrality of the lawyer and buttresses the ability of that lawyer to act solely in the best interests of the child. [ 26 ] In many of these cases, court appointed lawyers are even paid through the Legal Aid Society to ensure neutrality and the judiciary holds great respect for these lawyers who will often work at a rate significantly below their hourly rate to ensure the appearance of neutrality and the protection of the interests of children.

Here, it is unlikely that either client would need the assistance of Legal Aid, nevertheless in such an appointment the parents would pay equally and the court would encourage the setting of a hourly rate and the number of hours approved. [ 27 ] I accept and wish to make clear in these reasons, that both learned counsel for the father, and the putative appointed counsel for the child acted throughout in good faith, and took steps they thought were both in the best interest of the child, and respectful of the role of the courts.

Regretfully, they were incorrect. [ 28 ] Any appointment by one parent of a lawyer to represent a child will always be seen as the introduction of a potentially biased and hostile agent, when viewed through the eyes of the other litigant. A court-appointed lawyer does not have that disadvantage.

As such, a ‘parental appointment’ becomes an ineffective appointment, and exposes the appointed lawyer to litigation risk at a personal level, disrupts the balance of power between parents in conflict, and is never in the best interest of the child. 4.0 Ruling [ 29 ] The application for the appointment of legal counsel for the child in this case is dismissed. Counsel for the father is given leave to re-apply after a concurrently ordered Practice Note 7 intervention has been attempted to resolve some of the issues between the parties and their relationship with their child.

The lawyer appointed by the father for the child is discharged in that appointment because he did not have either the approval of the court, nor the consent of the co-guardian of the child. The affidavit evidence provided by that lawyer will not be considered by the court. All fees incurred by the putatively appointed lawyer will be on a solicitor-client basis and paid by the father. Those fees will not become part of the costs claimed at any time in this case irrespective of its outcome. Heard on the 30 th day of November, 2010. Dated at the City of Edmonton, Alberta this 2 nd day of December, 2010. A.W.

Germain J.C.Q.B.A. Appearances: Chandra Flett

McMurray Law Office for the Plaintiff Timothy A. Verhaeghe Verhaeghe Law Office for the Defendant