The motion, W. (K.S.) v. W. (S.), was about whether the youngest of two children could have private counsel appointed.

The motion was brought by the father who wanted a change in custody, access and the residential arrangements for the children ages 18, 15 and 12. This motion was also brought due to the mother’s intentions to move to Los Angeles.

The Office of the Children’s Lawyer refused to become involved due to timing issues. The mother sought an order to appoint a private lawyer for the children. The mother’s motion was persistently opposed by the father.

Analysis

The court began its analysis by first considering section 64 of the Children’s Law Reform Act which states that where possible the court shall take into consideration the views and preferences of the child.

Furthermore, Rule 4(7) of the Family Law Rules states that a court may authorize a lawyer to represent a child. As such, the court had jurisdiction to make an order to appoint a lawyer to the children, and in the end a lawyer was appointed to each of the younger two children.

The court was of the opinion that the issue was really about allowing the children to express their views with regard to the move. It was held that:

“because of the narrow focus of the role of lawyers in this case, I note by way of instructions to the lawyers that I am not expecting them to evaluate the capacity of Daniel and Hannah to retain and instruct counsel because that is not what either child is doing. Appointed counsel is not expected to advocate as particular outcome based on instructions from the child. Appointed counsel is expected to advise the court as to the child’s views and preferences in accordance with s. 64 of the Children’s Law Reform Act. A formal evaluation of capacity is not required.”

It is interesting that the court decided to appoint a lawyer for each child instead of appointing a psychologist or therapist to act in the capacity of the Office of the Children’s Lawyer, as the role of a lawyer in this position is somewhat confusing. The acumen of a therapist or psychologist is probably more appropriate.