DCE v DE, 2021 ABQB 909

Court of Queen’s Bench of Alberta Citation: DCE v DE, 2021 ABQB 909 Date: 20211115 Docket: 4803 187215 Registry: Edmonton Between: DCE Plaintiff - and - DE Defendant Restriction on Publication By Court Order, no person shall publish or broadcast information that may identify the children involved in this proceeding. NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published. _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice K.S.

Feth _______________________________________________________ [ 1 ] Appointments of independent legal counsel for children involved in parenting disputes are increasingly common. Despite the

importance of these appointments to the lives of children and parents, the guidelines for deciding whether to appoint counsel are underdeveloped. [ 2 ] DCE (the “Father”) and DE (the “Mother”) have been embroiled in a high conflict parenting dispute since their marital separation in June 2018. They have three children who are 9, 10 and 11 years of age. [ 3 ] The children are in the primary day-to-day care of the Mother, as directed by a Parenting Order granted in January 2019. The Father has parenting time with the children three weekends each month.

As a consequence of a subsequent Order, parenting time is divided during July and August on an alternating two-week-on-two-week-off schedule. [ 4 ] The Father alleges several concerns about the Mother’s parenting of the children and strongly believes they want to spend more time with him. He applies for the appointment of independent counsel for the children or alternatively, a Voice of the Children Evaluative Intervention (“Evaluative Intervention”) under Family Law Practice Note 7 (“PN7”).

He submits that independent counsel or an Evaluative Intervention would allow for an inquiry into his concerns. [ 5 ] The Mother resists the application on the basis that the Father’s concerns are immaterial and unfounded.

She characterizes him as a vexatious litigant engaged in a fishing expedition and litigation harassment. [ 6 ] Nothing in the evidence suggests that the children have asked for legal counsel to represent their interests or for an independent means to express any views to the Court. [ 7 ] For the reasons to follow, I conclude that the best interests of the children are not served at this time by appointing legal counsel for them or conducting an Evaluative Intervention. Principles [ 8 ]

Section 16 of the Divorce Act , RSC 1985, c 3 (2 nd Supp ) (“ Divorce Act ”) prescribes that, in making a parenting order, the Court shall take into consideration only the best interests of the child. Section 16(3)(

e) directs that in determining the child’s best interests, 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.” [ 9 ] In McCauley v McCauley , 2021 ABCA 311 [ McCauley ], at para 19 , the Alberta Court of Appeal confirmed that s 16(3)(

e) does not compel the appointment of counsel for the child or a PN7 Voice of the Child report. The Court retains discretion. [ 10 ] As a general rule, children who are capable of forming their own views about matters affecting them are entitled to express those views freely and to have those views given due weight in accordance with their age and maturity: Hartley v Del Pero , 2017 ABQB 1 at para 44 ; BJG v DLG , 2010 YKSC 44 . [ 11 ] This general principle aligns with

Article 12 of the United Nations Convention of the Rights of the Child , 5/25 UNGA Resolution, November 20, 1989 A/RES/4 (the “Convention”): 1. State Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child. 2.

For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly or indirectly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law. [ 12 ] Canada ratified the Convention on December 13, 1991.

The Alberta Government expressed qualified support for the Convention’s objectives and principles on January 13, 1999. [ 13 ] Hearing from an affected child does not necessarily require the appointment of independent counsel or an Evaluative Intervention, including a PN7 Voice of the Child report. Simpler alternatives may be available such as reliable hearsay through a parent, guardian or neutral third party like a psychologist, psychiatrist or social worker who interviewed the child.

The child might be capable of providing direct evidence through an affidavit, oral testimony, judicial interview, video or letter: see, for example, the use of a letter in LKM v JF , 2004 ABQB 824 . [ 14 ] The Court must also consider whether collecting the child’s views will be harmful to the child, although that concern should not be based on conjecture. An essential premise of the Convention is that hearing from the child is in the child’s best interests.

Nevertheless, eliciting information from a reluctant child or a child who does not understand the consequences of the opinions shared can have adverse consequences if not conducted with appropriate sensitivity and skill. [ 15 ] The Court is also vigilant to avoid an abuse of its process, especially where high conflict domestic disputes descend into one parent using a child as an instrument for harassing the other parent, spying on the other parent’s activities, or coercing a settlement.

Similarly, independent counsel or an Evaluative Intervention should not be ordered as a fishing expedition to find evidence or make a case: Gordon v Towell , 2010 ABQB 396 at para 62 .

a) Counsel for the children [ 16 ] The Court may appoint independent counsel for a child, if the appointment is in the child’s best interests: Puszczak v Puszczak , 2005 ABCA 426 at para 10 [ Puszczak ]. Consideration is given to whether the appointment is “necessary or desirable in the circumstances”: Puszczak at para 17 .

[ 17 ] When addressing parenting issues regulated by the Divorce Act , the Court’s discretion to appoint counsel is grounded in its parens patriae jurisdiction. Similar authority is conveyed by statutory provisions covering other proceedings: Family Law Act , SA 2003, c F-4.5 at s 95; Child, Youth and Family Enhancement Act , RSA 2000, c C-12 (“ CYFE Act ”) at s 112. While most of my comments have general application, minor modifications might apply to appointments under the CYFE Act . [ 18 ] Independent legal representation can serve many objectives, including:

a) ensuring that all relevant evidence is available to the Court;

b) supporting the emotional well-being of the child;

c) focusing the parents on the child’s needs;

d) facilitating the cooperation of older children who need to feel heard;

e) advancing the child’s own rights;

f) preserving the integrity of the legal process; and

g) promoting a just determination of the issues affecting the child. [ 19 ] In recent years, the Court has seen an increase in requests for the appointment of independent counsel for children. Unfortunately, many of these applications suffer from deficiencies because the considerations guiding the Court’s exercise of discretion can be opaque. In Puszczak , the Court of Appeal lamented that the parameters for determining when counsel should be appointed are not highly developed. That continues to be true.

I therefore offer the following observations. [ 20 ] The Court must be satisfied that the child has attained an “age and degree of maturity” such that the child’s views should be considered: RM v JS , 2013 ABCA 441 at para 24 [ RM ]. If that threshold is not satisfied, concerns arise about the child’s capacity to form and convey views, to instruct counsel and make reasonable choices, and to be free from undue influence. [ 21 ] No specific age is a threshold for appointing counsel nor invites a presumption that the child’s views should be taken into account.

The inquiry into the child’s age and degree of maturity is individualized and contextual. [ 22 ] In RM , the Alberta Court of Appeal cautioned that the inquiry is complex, especially for a child as young as 10 years of age. Eliciting some expertise through professionals knowledgeable about the child might be desirable: RM at para 25 .

As a child reaches their teenage years, assumptions about their maturity can be applied with greater comfort since they have more opportunities to make significant decisions for themselves: RM at para 25 referring to MLE v JCE (No 2) , 2005 ONCJ 89 at para 13 . [ 23 ] The child’s views are seldom determinative, so their capacity to make decisions or offer a perspective need not be perfect. Constraints on the child’s ability to develop helpful views and preferences can be addressed in assessing the weight given to them. [ 24 ] The child is usually asked to express views or preferences, not to make choices.

More specifically, giving the child a choice, or the impression of choosing, between parents is a “developmentally inappropriate” responsibility: S. Carter and P. Hebert, “Voice of the Child Reports: When, How and By Whom?”, Symposium on Children’s Participation in Justice Processes, Canadian Research Institute for Law and the Family, September 2017, [unpublished] at 8. [ 25 ] When assessing whether the child’s age and maturity are such that their views should be considered, relevant considerations include:

a) The nature and complexity of the issue for which the child’s input is sought;

b) Whether the child has expressed an interest in offering a viewpoint;

c) Whether the child is primarily being asked to provide facts rather than engage in higher reasoning such as drawing conclusions or formulating opinions;

d) Whether the child’s decision-making might be compromised by the child’s relationship with a party, including emotional attachment, dependency, estrangement or undue influence;

e) Whether the child has the ability to gather relevant information and to weigh competing benefits and disadvantages when developing a viewpoint;

f) Whether the child reasonably appreciates the consequences of expressing a viewpoint;

g) Whether the child has made good decisions of a substantial nature in other situations;

h) The child’s performance and behaviour in school;

i) Assessments of the child’s behaviour and decision-making capacity provided by professionals such as psychologists, counsellors, physicians and teachers; and

j) Parental observations about the child’s behaviour and decision-making ability. [ 26 ] The Alberta Court of Appeal in Puszczak , at paras 14-16 , confirmed that certain circumstances normally favour the appointment of counsel. The Court relied on a non-exhaustive list of categories delineated by the Full Court of the Family Court of Australia in In the Matter of: Re K

(1994) FLC 92-461:

a) cases involving allegations of child abuse;

b) cases where an apparently intractable conflict exists between the parents;

c) cases where the child is seemingly alienated from one or both parents;

d) where real issues arise about cultural or religious differences affecting the child;

e) 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;

f) 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;

g) 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;

h) any case in which, on the material filed by the parents, neither seems a suitable guardian;

i) 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;

j) 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;

k) cases proposing to separate siblings;

l) custody cases where none of the parties is legally represented; and

m) 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. [ 27 ] The Court of Appeal cautioned, however, at para 16, that while these categories might be helpful in identifying circumstances when a child’s interest are not adequately represented by a party, merely bringing a case “within one of these categories does not necessarily mean independent counsel is required.” The categories do not inhibit discretion. [ 28 ] Another relevant consideration is the parties’ ability to pay for independent counsel.

Even when a lawyer is initially provided through Legal Aid Alberta, the parties may be required to reimburse some of that expense in the future. To the extent that parental funds are diverted into legal expenses, less money may ultimately be available for the child’s needs. A best interests of the child analysis therefore properly examines the cost of obtaining legal representation for the child. [ 29 ] An application for the appointment of counsel for the child should identify the proposed role for the lawyer.

In this way, the Court may consider the specific purpose of the appointment and the child’s ability to constructively participate in that process. [ 30 ] The scope of the work to be performed by the child’s counsel may vary, but three roles are generally recognized: friend of the court, best interests guardian, and direct advocate. See: N. Bala, “Child Representation in Alberta: Role and Responsibilities of Counsel for the Child in Family Proceedings” (2006) 43:4 Alberta Law Review 845; D.

Hensley, “Role and Responsibilities of Counsel for the Child in Alberta: A Practitioner’s Perspective and a Response to Professor Bala” (2006) 43:4 Alberta Law Review 871. Each of these roles can be customized to the specific circumstances of a proceeding or a child. [ 31 ] The “friend of the court” takes instructions from the Court and may assist by arranging for the investigation of facts, often with the assistance of a psychologist or social worker, and may question witnesses at a hearing.

The lawyer ensures that all relevant evidence is tendered before the Court and makes submissions about legal issues that arise. The focus is on ensuring that all realistic options for the child’s care are investigated. The lawyer maintains neutrality, need not inform the Court of the child’s views, and is not expected to make submissions about the outcome or resolution that best serves the child’s interests. Information provided by the child to legal counsel is not confidential and may be shared with the Court.

Such an appointment may be appropriate where the child lacks full capacity or does not instruct counsel. [ 32 ] The best interests guardian role modifies the friend of the court function by allowing the lawyer to advocate a position based on their assessment of the child’s best interests. The lawyer acts much like a litigation guardian, assessing the best interests of the child and making recommendations to the Court. The lawyer’s assessment governs.

The lawyer is not bound by the child’s views, but usually informs the Court of what they are. [ 33 ] The direct advocate role contemplates a conventional lawyer-client relationship in which counsel communicates the child’s views to the Court and seeks to advance the child’s objectives. The lawyer advises the child about choices, maintains confidentiality, and advances the child’s instructions. [ 34 ] In choosing between or customizing these roles, the following issues usually need to be addressed:

a) whether legal counsel will take instructions from the child;

b) whether legal counsel may advocate for a position based on their assessment of the child’s best interests;

c) whether counsel may advocate for a position contrary to the child’s express wishes;

d) whether counsel is responsible for collecting evidence and ensuring that all relevant evidence is before the Court, even if the parties decline to introduce that evidence;

e) whether counsel may have record disclosure and discovery, examine or cross-examine any witness at a hearing or trial, and call witnesses;

f) whether counsel may retain another professional, such as a psychologist or social worker, to assist in collecting information from the child;

g) whether communications between counsel and the child remain confidential or privileged, and any exceptions to confidentiality, such as disclosure of child abuse;

h) whether counsel may communicate directly with the parents, collect information directly from third parties such as healthcare providers, counsellors and schools, and meet with the child in the absence of the parents;

i) whether counsel takes further direction from the Court and if so, how and when direction is provided;

j) the manner of reporting to the Court, including whether the child’s information is evidence;

k) whether counsel may initiate appeals, take other steps authorized by the Court, and seek costs;

l) whether counsel’s role will change over the course of a proceeding. [ 35 ] Where counsel for the child is asked to investigate facts or to ascertain and then report on a child’s views, consideration should be given to whether the lawyer is sufficiently trained and experienced for the assigned function. Lawyers frequently lack the technical skills of social workers or mental health professionals to interview children. For many appointments, communication skills specific to young children are necessary.

Information about the experience, skills and training of the proposed lawyer usually assists the Court. [ 36 ] In making these comments, I acknowledge that Legal Aid Alberta has recently launched the Representation of Children Panel as part of an initiative to address concerns about the experience level of independent counsel for children.

Nevertheless, the exercise of the Court’s parens patriae jurisdiction normally demands some inquiry into and assurance that the assigned counsel can adequately perform the functions ordered by the Court. [ 37 ] Applications for the appointment of legal counsel for the child often lack clarity about the qualifications and intended role of counsel. The Court is frequently asked to delegate the determination of the role of counsel to the appointed lawyer.

In those circumstances, an unidentified lawyer, with unspecified skills and experience, is invited to define the functions to be performed, rather than having that determination remain with the judge. This approach risks compromising the Court’s obligations to the child. [ 38 ] In some situations, the appointed lawyer will consult with the parties about the role to be adopted and then return to the Court for an Order confirming the scope of work and counsel’s obligations, essentially as dictated by the parties.

The exercise can then become deferential to the views of the appointed lawyer and the parties, rather than focusing on the Court’s own assessment of the child’s best interests. [ 39 ] As a preferred practice, the Court would be assisted by a clear articulation of the proposed role for counsel when the appointment is sought and some comfort about counsel’s ability to satisfactorily perform that function (e.g. by providing details about counsel or drawing from a roster with published standards). [ 40 ] Counsel for the child must also be independent from the parties: Puszczak at paras 21, 28 .

Deferring to the parties to set the role of counsel can interfere with that independence. [ 41 ] From these principles, a framework can be developed for considering a request to appoint independent counsel for a child:

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;

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;

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;

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

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. [ 42 ] In LMH v SRH , 2010 ABQB 769 , at para 12 , my colleague Germain J stated in obiter dicta that the appointment of legal counsel for children is an “unusual procedure” arising in “exceptional circumstances” and that the “presumption should be against this type of appointment.” However, the practice has evolved since then.

The emotional and legal benefits to children in having an opportunity to express their opinions and fears to an impartial person are increasingly recognized: Ann Wilton, Gary S. Joseph & Tara Train, Parenting Law and Practice in Canada , Release No. 4 (Carswell, 2021) at 4:5 . In my view, the contextual analysis is better served by a review of the various principles rather than relying on such a presumption.

b) Evaluative Intervention and Voice of the Child report

[43] A Voice of the Child report is prepared by a Parenting Expert (being a registered psychologist or registered clinical socialworker) at the conclusion of an Evaluative Intervention. The Parenting Expert canvasses the specific needs of, or where appropriate, thewishes of the child. The goal is for the child to speak candidly to a qualified neutral third party without pressure from any source,including the parents. In the report, information is given to the Court to assist in decision-making. [44] Evaluative Interventions and any Voice of the Child report are governed by PN7.

A Voice of the Child report does not assessthe parents and no opinion is given about parenting time or the suitability of the children being in the care of either parent: PN7 at para50. Either party may apply for an Evaluative Intervention. However, the party bringing the application has an obligation to provide thenames of one to three proposed Parenting Experts: PN7 at para 16. [45] On hearing the application, the Court must be satisfied that an Evaluative Intervention is “warranted”. Relevant considerationsinclude: (

a) the nature and complexity of the dispute between the parties; (

b) whether the child is old enough to voice an opinion; (

c) whether the child has any behavioural or psychological issues; (

d) whether the child has any special needs or developmental issues; (

e) whether a legitimate concern exists that the child is being harmed; (

f) whether one parent may be alienating the child from the other parent; (

g) whether the child is under the control of a parent in terms of formulating their views and preferences; (

h) whether an inexplicable rift has arisen between parent and child; (

i) whether any complex inter-personal dynamics between the parents are concerning; and (

j) whether the parents have the financial means to pay the cost of the Intervention.

See: McCauley at para 18; Glick v Cale, 2013 ONSC 893 at paras 27 and 48; Caheral Caheral, 2008 ABQB 238 at para 13; Goldberg v Goldberg (1996), 26 RFL (4th) 99, (Ont SCJ) at para 40. [46] The reasons for requiring an Intervention must more than offset any harm that might be occasioned by ordering theIntervention: DMM v DPL, 1999 ABQB 37 at para 25. [47] An Evaluative Intervention shall only be ordered if the parties are able to pay the cost of the Intervention after consideringany available subsidies or private health care coverage, or if the party seeking an Intervention is able to pay the entire cost at firstinstance, subject to a contribution from the other parent at the conclusion of the Intervention: PN7 at para 11.

Analysis [48] Utilizing the starting point that a child capable of forming views is entitled to express those views freely, with those viewsbeing given due weight in accordance with the child’s age and maturity, I turn to the Father’s request that counsel be appointed for allthree children to address multiple issues, failing which a PN7 Voice of the Child report should be obtained.

a) Issues potentially affecting the children and a preliminary assessment of theinterests affected [49] The Father seeks an ill-defined investigation into his concerns about the children’s welfare. In large measure, he attempts touse the appointment of children’s counsel as an expansive “wellness check” on their health, safety and educational development. [50] In my view, the Father has not provided compelling evidence that the children’s welfare is at material risk. [51] He complains that the Mother is not taking proper care of the children because they have experienced some rashes, acne andeczema.

He believes these conditions are caused by poor hygiene, but offers scant evidence to substantiate the claim. An unidentifiedteacher at the children’s school, on an unspecified occasion, told him one of the children wears dirty clothes to school and “smellsterrible in class,” especially after gym class. The children supposedly have untidy hair, which he says causes dandruff. No other detailsare offered.

No medical information is provided from the children’s physician or otherwise to show that these observations are the resultof poor hygiene or that the children’s health is suffering. [52] The Mother denies the claims. Even if true, the allegations do not raise material concerns about the children’s health orwelfare. [53] The Father asserts that the children have reported the Mother allows “her male friends to sleep in the children’s room.” He

complains that the children are at risk of being exposed to inappropriate situations. The Mother denies that any men have slept in the children’s room. [ 54 ] The male friends are not identified. The timing of the alleged sleep overs is not addressed. The circumstances are not described. No actual inappropriate behaviour is mentioned. The children have not said they were present in their room while an adult slept there or that they had any real concerns. [ 55 ] The lack of detail invites concern because the Father previously accused the Mother and the maternal grandmother of physically abusing the children.

Those allegations were reviewed by this Court at a full hearing in January 2020 and dismissed. [ 56 ] I find that the vague evidence about “male friends” sleeping in the children’s room, denied by the Mother, does not demonstrate a material risk to their safety. [ 57 ] The Father alleges that the Mother sometimes leaves the children unattended at home. In September 2020, the youngest child hurt her mouth and was bleeding, allegedly when the Mother was not at home.

He provides no details about the number of absences, the length of time the children were alone, whether another adult was monitoring them from nearby, whether any of these absences occurred recently, even within the past year, or whether the children have expressed concerns. The Mother explains that the September 2020 incident was simply the youngest child losing a baby tooth in a natural manner and that the children were not alone. [ 58 ] A chambers application does not usually allow for the resolution of conflicting evidence.

However, when the Father’s evidence is reviewed in context, I am not persuaded that the children’s welfare is at material risk. [ 59 ] The Father contends that the Mother is often late in delivering the children to school and does not ensure their homework is complete. The Mother denies the claims. She provides report cards for the children with attendance records confirming they rarely miss or are late for school. Their academic performance is graded by teachers as proficient to exemplary.

The Father’s concerns are not substantiated by the school records. [ 60 ] The Father complains that the Mother does not always pick up the children from school, sometimes arranging for a friend to collect them. The Mother explains that the friend is the mother of another child who attends the school and that she has only given them a ride on a couple of occasions.

Nothing about the ride sharing is improper. [ 61 ] The Father has not presented a compelling case that a serious behavioural, psychological or welfare issue is before the Court that engages the children’s interests or requires the assistance of independent counsel. [ 62 ] The Father’s second justification for appointing counsel for the children is that a credibility contest exists between himself and the Mother, which has been a “major issue” in the ongoing family litigation. He believes the best way to resolve the credibility contest is to hear the views of the children.

However, he does not particularize the factual issues for which the children’s views are sought. He does not identify any outstanding legal issue or court application for which a credibility analysis must be undertaken. [ 63 ] No application to vary parenting is currently before the Court. Assessing credibility is not a free-standing exercise operating in a vacuum. The inquiry is directed at specific issues or facts. [ 64 ] The Father wishes to entangle the children in a nebulous investigation about which parent is more honest.

That neither seriously engages nor truly serves the children’s interests. [ 65 ] The Father’s final justification for the appointment of legal counsel is his belief that the children want to spend more time with him. No evidence is presented of any child expressing that wish. The Father invites an inference to be drawn about their wishes based on skimpy evidence concerning how they feel after his weekend parenting time.

The Father suggests, without stating, that they might be asked to express an opinion about spending more time with him. [ 66 ] In the absence of a parenting variation application, the request to appoint legal counsel for the children is less compelling since no live issue is before the Court. No material change in circumstances that warrants revisiting the existing Parenting Orders is demonstrated, which also detracts from the request. I conclude that the evidence does not establish that the children are seeking any change or want to express any views about the current parenting regime.

b) The ages and degrees of maturity of the children to provide views [ 67 ] The children are all young, so I cannot assume they are mature enough to form views on every possible issue or to instruct a lawyer. A contextual analysis is necessary. [ 68 ] The nature and complexity of the issues for which the children’s input might be sought is poorly delineated.

They are likely old enough to recount facts, but little is explained about whether they would be invited to express opinions or draw conclusions, including about the allocation of parenting time or anyone’s parenting skills. [ 69 ] The children have not asked to provide information to the Court. Minimal evidence is before me about their abilities to make good decisions of a substantial nature.

They excel in school, but almost nothing is offered about their maturity levels, decision-making abilities or whether they are free from undue influence aside from the Father’s bald assertion that they can make reasonable choice, exercise judgment without adult interference, and instruct counsel. [ 70 ] The parenting relationship might be characterized as involving “ intractable conflict between the parents,” which Puszczak identifies as a scenario in which independent legal counsel might normally be appointed.

However, the overall evidence does not demonstrate that the discord is such that counsel for the children is needed to protect their interests. A stable parenting regime is in place, by operation of Court Orders, and the record does not suggest that the parents are violating those terms such that further judicial

intervention is required at this time. [ 71 ] Whether the children could form and convey views to a lawyer is unclear because the issues for which their input might be sought are not fully particularized. While they can likely assist with some fact-finding, I am not satisfied that they are of the ages and degrees of maturity to form views about parenting time or to instruct counsel.

c) Proposed role for counsel [ 72 ] The Father does not identify a specific role for counsel for the children, although the possibility of a direct advocate role is raised. A general investigative function is contemplated, but the lawyer’s relationship to the children and their participation in the process are not clarified. [ 73 ] As I have concluded that the children are not sufficiently mature to provide instructions to a lawyer, a direct advocate role is inappropriate.

d) Information sought [ 74 ] The Father does not explain whether evidence alone is wanted, but he asserts that the children are old enough to instruct counsel, which suggests that they would be invited to form and express preferences about something, including parenting time.

e) Whether counsel for the child is necessary or desirable, rather than relying on other means [ 75 ] Both parents have access to the children and can relay information from them. The Father’s hearsay evidence from the children is imprecise and vague. The failure to provide probative evidence does not appear to be the consequence of an inability to obtain it, such that a lawyer is necessary to undertake the task.

f) Countervailing factors [ 76 ] The evidence does not address whether the parties have the ability to pay for legal counsel, including reimbursing Legal Aid Alberta. Further, the probative value of the factual information the children might provide is unclear. [ 77 ] The high conflict history of the litigation, the weak justification for appointing counsel for the children and the absence of an actual application before the Court seeking to vary the existing Parenting Orders raise substantial concerns about the Father using this application for an improper purpose or a fishing expedition.

While I make no finding of actual litigation harassment or misconduct in bringing this application, heightened caution is appropriate. [ 78 ] I conclude that the appointment of independent legal counsel is not in the best interests of the children. [ 79 ] The Father raises the possibility of a Voice of the Child report. However, few submissions were offered in support of this alternative request.

No proposed Parenting Expert was named and the parties’ ability to pay was not addressed. [ 80 ] The Father’s concerns about the children’s welfare, as previously discussed, do not satisfy me that a Voice of the Child report is warranted. Further, and while not determinative, no outstanding court applications or legal issues were identified for which an Evaluative Intervention would assist in a meaningful way.

Conclusion [ 81 ] I decline to direct either the appointment of counsel for the children or an Evaluative Intervention, including a PN7 Voice of the Child report. [ 82 ] The Mother requested an opportunity to provide submissions on costs. The parties may provide written submissions to me by letter within 10 days. Heard on the 20 th day of October, 2021. Dated at the City of Edmonton, Alberta this 15 th day of November, 2021. K.S. Feth J.C.Q.B.A.

Appearances: Ike Ulasi Prime-Synergy Law Office for the Plaintiff Anita Allen-Lloyd Alberta Law Group for the Defendant