Smith v. Lagace, 2011 ABQB 405

Court of Queen’s Bench of Alberta Citation: Smith v. Lagace, 2011 ABQB 405 Date: 20110628 Docket: FL03 24609 Registry: Edmonton Between: Morgan Bradford Smith Applicant - and - Allison Norma Lagace Respondent _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [ 1 ] Invoking s. 95(3) of the Family Law Act , the father of a 12 year old girl asks the court to appoint a lawyer for his daughter. [ 2 ] Invoking s. 4 of the FLA , the girl’s mother asks the court to rule that the father’s application is brought in the wrong court since the parties have previously instituted parenting proceedings in the Provincial Court. [ 3 ] Jurisdiction was not fully argued by the parties.

It may be that the constitutional jurisdiction to appoint an independent lawyer for a child is a prerogative of a superior court: such an appointment gives to a child the status of an adult and determining status is typically the preserve of superior courts. Section 3(3) of the Family Law Act makes it clear that the Legislature was not attempting, in s. 95(3), to

give parens patriae jurisdiction to the Provincial Court. As other case law points out, even where there is legislation authorizing the appointment of a lawyer for a child, the exercise of that power is described as an exercise of parens patriae jurisdiction: A.C.B. [ 4 ] Assuming, without deciding, that the appointment of a lawyer for a child over the objection of one of the parents is within the exclusive jurisdiction of the Court of Queen’s Bench, then this court denies the father’s application: here, the appointment of an independent lawyer for the child is neither desirable nor necessary.

Each of the parents appears to be responsible and interested in the best interests of their child. There is no need for the court to replace the parents and to exercise its own parens patriae jurisdiction. This child is not in danger; she does not need to be rescued.

There are ways, other than through the appointment of an independent lawyer, in which the child’s expressed desire with respect to parenting regime can be brought before the court. [ 5 ] If, however, the Provincial Court does have jurisdiction to change the status of a child to that of an adult for the purpose of retaining a lawyer, then the Provincial Court and the Court of Queen’s Bench have concurrent jurisdiction.

In that case, the framework of the Family Law Act requires an applicant to establish that, as between the two courts, an application can properly be heard in the court of the applicant’s choice given the principles set out in s. 4 of the Act. Here, the father has not satisfied that requirement. Cases and authority cited [ 6 ] By the applicant father: Access to Justice for Children: The Voice of the Child in Custody and Access Disputes , Christine Davies, Q.C., 2004, (Can be accessed on line at 22 CFLQ 153); Children: Status and Representation , The Honourable Nancy A.

Flatters (with acknowledged contribution by The Honourable Justice Colleen L Kenny, for LESA seminar Representing Children and High Conflict Custody Cases, 2002.); Counsel for Children: Principles for Child Welfare Proceedings in Alberta , Patricia Hebert for LESA seminar Representing Children and High Conflict Custody Cases, 2002; The Rights of Children to Separate Representation: United Nations Convention on the Rights of the Child , Linda McKay-Panos for LESA seminar Representing Children and High Conflict Custody Cases, 2002. [ 7 ] By the court: On the appointment of a lawyer for a child: Puszczak v Puszczak 2005 ABCA 426 , [2005] A.J.

No. 1715 ; A.C.B. v R.B. 2010 ONCA 714 , [2010 O.J. No. 4558 ; H.(L.M.) v H. (S.R.) 2010 ABQB 769 , 2010 CarswellAlta 2380 . [ 8 ] On the issue of the Family Law Act jurisdiction of the Provincial Court and the Court of Queen’s Bench: Platner v Platner 2010 ABCA 342 , [2010] A.J. No. 1298 ; R.W. v Alberta (Child, Youth and Family Enhancement Act, Director) 2010 ABCA 412 ; [2010] A.J. No. 1489 ; E.E.E. v C.F.H. 2009 ABCA 46 , [2009] A.J. No. 1112 ; B.J.B. v K.T.L. 2008 ABPC 91 , [2008] A.J. No. 364 . Appendix A: Recommended form of consent order for appointment of lawyer for a child by Family Law Office. (i.e.

Alberta Legal Aid) 1. Background

a) Factual [ 9 ] The parties are the parents of a 12 year old girl. The girl resides with her mother and her half-brother and the father has generous access. At the hearing, the parties agreed that the girl is an honours student at school.

It appears from the material filed that the father has more financial flexibility than the mother: he has taken the child on vacation to the United States and he has set up an RESP for her. [ 10 ] The parties agree that, in 2005 or 2006, some type of parenting application under the Family Law Act was made by one of them in Provincial Court, that eventually an order was made appointing a named parenting expert to prepare a parenting opinion for the court, and that the provisions of that order were never implemented.

The father, whose application is being heard by this court, has not provided to this court any specific information about previous proceedings in the Provincial Court. [ 11 ] In 2010, the father brought a “Claim” under the Family Law Act in this court; in that Claim, made under the “Other” category of

the “Parenting” heading, the father asked for an order that he be named on his daughter’s birth certificate and that he be allowed to apply for a passport for her as a prelude to taking her on a vacation to the United States. [ 12 ] The father brings the current application without filing a new or amended Claim in this court, but merely as a request for relief. [ 13 ] In affidavits filed in support of the current application, the father and his partner state that the father’s daughter, whose primary residence is with her mother, has mentioned to them that she would like to come to live with them, that her mother hits her, and that her mother takes her with her to buy marijuana which the mother then consumes.

The father’s partner swears in her affidavit that the father reported the drug allegations to Children’s Services in February 2011, but they: told him they would not investigate and that drug allegations are too hard to prove. I called back and asked what about the [the child’s] disclosure of violence, and [the child’s] word about what she had witnessed of drug abuse, but he replied that the last time they investigated the kids did not say anything.

Finally he said it is not their job to step in with a child when there is a willing and capable parent able to step in and ensure their safety instead of the province.

b) Legislative [ 14 ] Sections 1(e), 3, 4, and 95 of the Family Law Act read as follows:

Definitions 1 In this Act, . . . . (e) “court” means the Court of Queen’s Bench or the Provincial Court, as the case may be; Court jurisdiction 3(1) The Court of Queen’s Bench has jurisdiction in all matters under this Act.

(2) Subject to this section, the Provincial Court has jurisdiction in all matters under this Act except (

a) to make a declaration under

section 9, 10, 12 or 83, (

b) repealed 2005 c10 s3 , (

c) to make orders under sections 68, 73 and 76, and (

d) to grant relief described in section 66(3)(b), (d), (g), (4), (7), (9) and (10).

(3) Nothing in this Act gives the Provincial Court the inherent jurisdiction of the Court of Queen’s Bench to act in a parens patriae capacity respecting a child before the Court. 2003 cF-4.5 s3; 2005 c10 s3 (Emphasis added) Concurrent proceedings 4(1) Where an application under this Act has been made to a court, a party may not make another application that is substantially the same to the same court or the other court.

(2) If 2 or more applications that are substantially the same are made, unless the parties agree otherwise, only the first application that has been filed and served shall proceed.

(3) If in an application under this Act before the Provincial Court, it appears the Provincial Court does not have jurisdiction over all or part of the matters in issue, the proceeding may be transferred in whole or in part to the Court of Queen’s Bench in accordance with the regulations.

(4) Where, in an application under this Act, it appears to the court that it is necessary or desirable for the appropriate determination of the application to have other matters under this Act or another enactment or under any other statute determined first or simultaneously, the court may, on its own motion or the request of a party, (

a) adjourn the application until the other matter is determined, (

b) in accordance with the regulations and insofar as it is within the court’s jurisdiction, join and hear 2 or more applications or matters together, or (

c) in accordance with the regulations, and insofar as it is within the court’s jurisdiction, transfer all or part of the application to the other court. . . . Child as party 95(1) Subject to subsection (2), where a child is a party to an application under this Act, the application may be brought or defended (

a) by a guardian of the child in the name of the child, or (

b) by a next friend or guardian ad litem or any individual appointed by the court to act on behalf of the child.

(2) A child who is or has been a spouse or adult interdependent partner may make, conduct or defend an application under this Act

without the intervention of a next friend or guardian ad litem.

(3) The court may at any time appoint an individual to represent the interests of a child in a proceeding under this Act.

(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. 2. Does the Court of Queen’s Bench have jurisdiction on this application? [ 15 ] For the purposes of this decision, I assume that the Court of Queen’s Bench has jurisdiction to hear this application. Indeed, I assume that the Court of Queen’s Bench may have exclusive jurisdiction to hear the application. [ 16 ] Jurisdiction was not fully argued by the parties.

Indeed, I have not been able to find any Alberta reported decision in which the potential effect of s. 3(3) of the Family Law Act on s. 95(3) of the Act has been analyzed: see , for example, Puszczak at paras 11-12 and H.(L.M.) at paras 10-12 . It may not be noteworthy that a lawyer was not appointed in either of those cases. There are two jurisdiction possibilities. The first is that, because of s. 3(3) of the Family Law Act , the Court of Queen’s Bench has exclusive jurisdiction to hear contested applications for the appointment of a lawyer for a child.

That result would be based on an analysis that begins with the expressed intention of the Legislature not to give to the Provincial Court any parens patriae jurisdiction: s. 3(3). [ 17 ] The appointment of a lawyer for a child over the objection or inaction of a parent has always been regarded in the common law as an exercise of parens patriae jurisdiction. That jurisdiction is the “power of the court to act in the stead of a parent for the protection of a child”: A.C.B. para. 23 .

The power to appoint a lawyer for a child is to give the child a direct status in a parenting dispute; in other words, by the appointing of a lawyer, the court grants a child a different status, that of an adult, and an adult who is entitled to their own parenting position.

As the nomenclature implies, the parents’ usual right and responsibility to act in the best interests of their child should only be supplanted by giving the child an independent role if “the rights and best interests of a child may not be adequately represented by his or her parents”: Puszczak , at para. 12 . [ 18 ] Moreover, the appointment of a lawyer for a child inferentially grants a different status to a child, that of an adult. Typically, determinations of status are made by a superior court.

In addition to not wanting to supplant the parens patriae jurisdiction of a superior court, in s. 3(3) of the Family Law Act , the Legislature may also have been indicating its intention not to provoke a constitutional imbroglio, especially where the superior court’s parens patriae jurisdiction has not been explicitly removed.

In that context, the word “inherent” in s. 3(3) of the Act presumably has the same meaning as “immanent” in para. 6 of our Court of Appeal’s decision in E.E.E. [ 19 ] Based on such an analysis, s. 95(3) would only apply to give to the Provincial Court the right to appoint a lawyer for a child in those situations where the appointment of a lawyer for a child does not arise from the exercise of parens patriae jurisdiction. Such situations would presumably include, for example, those where the parents agreed that the child should be separately represented.

Parenthetically, the consent of the parents appears to be the situation envisaged by the Family Law Office, i.e. a Legal Aid agency operating in the domestic area, in its recommended form of appointment of a lawyer for a child. A further example of parents agreeing to give their child the status of an adult is their power to consent to the marriage of their child who is under the age of 18: s. 19(1) Marriage Act . [ 20 ] The outcome of such an analysis is that the Court of Queen’s Bench is the court with exclusive jurisdiction to hear a contested application for the appointment of a lawyer for the child. 3.

Assuming that this court has exclusive jurisdiction to appoint a lawyer for the child, the court declines to exercise that jurisdiction

[ 21 ] Assuming then, that this court does have the exclusive jurisdiction to appoint a lawyer for a child in a contested situation, the court declines to exercise that jurisdiction in the circumstances here.

a) General principles about the appointment of lawyers for children [ 22 ] It is useful to remind ourselves of the principles which undergird the appointment of lawyers for children. With respect, the best guidance for Alberta trial judges on that issue comes from the Alberta Court of Appeal in a decision issued in 2005, Puszczak. Therefore, no reference will be made to the articles provided by the father since each of those articles pre-dates the Court of Appeal’s decision. [ 23 ] The general principles as set out in the case law appear to be the following.

First, the court’s jurisdiction should be exercised only where the parents are unable to adequately represent the best interests of their children.

Interestingly, the representative of Children’s Services whose opinion is discussed by the father’s partner, appears to have encapsulated the correct state of the law with respect to this issue. [ 24 ] Second, in determining whether the parents are able or unable to adequately represent the rights and best interests of their children, the court may look to factors such as those articulated by the Australian courts, although the presence of any one of those factors will not necessarily result in the appointment of a lawyer: Puszczak at para. 16 . [ 25 ] Third, a lawyer should not be appointed for a child until the court has determined that it was desirable and necessary for independent counsel to be appointed: Puszczak , at para. 17 . [ 26 ] On a more theoretical level, the recent decision of the Ontario Court of Appeal in A.C.B. has emphasized that: - although Canada is a signatory to the Convention on the Rights of the Child, that treaty has not been incorporated into domestic law and is therefore merely an aid to contextual

interpretation rather than of direct application; - there are existing mechanisms under Canadian law and practice for the child’s voice to be heard in proceedings affecting him or her; - a court’s parens patriae jurisdiction must be exercised in a principled manner.

b) Application of the general principles to the facts of this case [ 27 ] There is no evidence that these parents are unable to represent their daughter’s best interests. If the father is of the view that it is in his daughter’s best interests to change the primary parenting regime, he is perfectly able to make that case on his own behalf. [ 28 ] This girl is not in danger, she does not need to be rescued.

Any “hitting” which occurs is presumably not serious: otherwise, evidence of assaults would have been reported by the school authorities. [ 29 ] On the contrary, the child is an honours student: she appears to be thriving in her mother’s household. [ 30 ] However, in a year or two, the child’s wishes may well be determinative; there is no need in the circumstances here to abbreviate the usual opportunity for a young child to make a more mature and informed choice about the parenting regime which she prefers. [ 31 ] Overall, this is not a situation where it is necessary to give the parties’ daughter a direct voice in a parenting dispute because the parents are incapable of representing the child’s best interests.

[32] Moreover, this is certainly not a situation in which the state should be called in to a parenting dispute. Here, given the expensesalready incurred by the father in relation to his daughter, there is no basis to assume that it is necessary for the state to meet the expenseof providing legal and other services in the parenting dispute. Even in situations where finances are a problem, the state’s financialresources are usually more usefully spent on obtaining expert evidence than on paying for legal services. 4.

If the Court of Queen’s Bench does not have exclusive jurisdiction to hear this application, then, under the secondjurisdiction possibility, the Court of Queen’s Bench and the Provincial Court have concurrent jurisdiction.

However, in thatcase, the father has not established that, as between the two courts, this court should hear the application [33] The first jurisdictional assumption was that the Court of Queen’s Bench has exclusive jurisdiction to hear the father’s application;as set out above, if that jurisdictional paradigm applies, then this court denies the father’s application and declines to exercise its parenspatriae jurisdiction. [34] The second jurisdiction possibility is that s. 95(3) applies as written; in that eventuality, the Provincial Court and the Court ofQueen’s Bench have concurrent jurisdiction in the contested appointment of lawyers for children. [35] If the second jurisdiction possibility applies, then the court must examine the framework of the Family Law Act which includesmechanisms for ensuring that there is no multiplicity of proceedings and that a court which embarks on a family law dispute has the bestopportunity possible to decide the dispute: s. 4. [36] Here, because the parties agree that there have been previous proceedings in the Provincial Court, the onus is on the father toprove that he is entitled to bring his current application in the Court of Queen’s Bench.

As the court in B.J.B. observed, in deciding s. 4issues, the court will look to the substance of previous applications, rather than to a potential difference in mere nomenclature. [37] Indeed, in the situation here, not only is it unclear that the father can bring this particular application to this court, it is unclear thatthe father can bring any application to this court: there is no unresolved Claim made by him in this court. [38] In Platner, our Court of Appeal stated: It also raises the issue under what circumstances is it appropriate for a Queen's Bench judge to direct a transfer of proceedingsoriginating in Provincial Court to Queen's Bench, particularly in the absence of any application by either of the parties to do so.

All theseissues are questions of law of significance to the practice, have a reasonable prospect of success on appeal, and, while they result inadditional litigation between the parties, it cannot be said that they unduly hinder the progress of the action. [39] In R.W., the Court of Appeal went back to the theme of parens patriae jurisdiction of the Court of Queen’s Bench in the contextof decisions about which court should hear applications under the Family Law Act when it said: As pointed out by LaForest J. in Re Eve, (SCC), [1986] 2 S.C.R. 388 at 425-426, 31 D.L.R. (4th) 1, parens patriaejurisdiction is founded on necessity, namely to act for the protection of those who cannot care for themselves, and "the categories underwhich the jurisdiction can be exercised are never closed".

In any event, it is clear that a satisfactory transition plan was an importantfactor in the order made by the appeal justice. In my view, this issue of law or jurisdiction, as the case may be, requires determination. (Emphasis added) [40] In the circumstances here, without knowing which parent had the obligation of obtaining a parenting assessment in the ProvincialCourt and why that obligation was not met, it is not possible for this court to determine whether it should entertain the father’s currentapplication.

5. Responsibility for preparing the formal order [ 41 ] Although she was not successful in preventing the father’s application from being heard, the mother was successful in resisting the appointment of a lawyer for the child. Therefore, the court orders the mother to prepare the form of order that will reflect these reasons. 6. Costs [ 42 ] If the parties are not agreed on costs, I may be spoken to within 30 days of the release of this decision. Heard on the 16 th day of June, 2011. Dated at the City of Edmonton, Alberta this 27 th day of June, 2011. J.B. Veit J.C.Q.B.A. Appearances: Carolyn L.

Seitz, Duncan & Craig LLP for the Applicant, Mr. Smith J.R.B. Shortreed, Biamonte Cairo for the Respondent, Ms. Lagace Appendix A