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A Child’s Choice: The Role of a Private Retainer for a Child in Determining a Child’s Views and Preferences
For our final week on a Child’s Choice series we discuss an exceedingly rare approach to determine a child’s views: hiring an independent lawyer for the child. While the law is still developing, significant cases like Puszczak v. Puszczak have begun to shape how and when a child can have private legal representation during parenting disputes.
Is a Private Lawyer for my Child an option?
The Divorce Act and the Children’s Law Reform Act allow courts to consider the views and preferences of a child when determining parenting time. However, the process by which these views are heard is not always straightforward. Often, it is up to the parents to represent the child’s interests, which can be problematic if the parents have conflicting positions. This is where private legal representation for the child can come into play.
Case Example Where a Private Lawyer was Not Allowed
The case of Puszczak v. Puszczak (2005) highlights the complexities surrounding the retainer of a lawyer for a child. In this case, a father in Edmonton hired a lawyer to represent his 12-year-old son, who had been living with the mother in Calgary. The father’s intention was to modify the parenting arrangement, believing his son wanted to live with him. However, the retainer occurred without the mother’s knowledge, raising concerns about the lawyer’s independence and impartiality.
The court ultimately found that the lawyer’s appointment lacked transparency, and the retainer was not properly aligned with the child’s best interests. The ruling emphasized that before appointing legal counsel for a child, the court must ensure that the child has the capacity to provide instructions and make independent decisions without undue influence. This case set a precedent for the need to carefully consider the appointment of counsel for children, particularly regarding the potential for bias and the need for independent representation. Notably however, the case did not go so far as to disallow the private retainer from ever occurring.
The Court, while still refining the guidelines for appointing child counsel, drew upon international principles and case law. The Family Court of Australia has outlined specific circumstances when appointing a lawyer for a child is essential. These include cases involving allegations of abuse, intractable parental conflict, or situations where a child expresses strong preferences about custodial arrangements. In these cases, a lawyer can ensure that the child’s views are presented to the court, particularly when those views may lead to a significant change in parenting.
Case Example Where a Private Lawyer was Allowed
In K.S.W. v. S.W., (2012), for instance, the court granted private legal representation for two children in a parenting dispute. The children were significantly impacted by the ongoing conflict between their parents, and their voices needed to be heard. The court emphasized that the children’s views, particularly in contentious matters like relocation, warranted independent representation to ensure their interests were adequately protected.
While the legal landscape regarding private retainers for child representation in parenting disputes continues to evolve, the growing importance of ensuring that children’s views and preferences are properly heard is clear. As courts continue to refine their approach, lawyers and judges alike must prioritize the child’s best interests, ensuring that any legal representation is impartial, independent, and focused on amplifying the child’s voice in an often complex and emotionally charged situation.
Conclusions
This concludes our series on a Child’s Choice and their impact on the court proceeding. Whether through general views and preferences, third party assessor, judicial interview of a child, or private retainers, there are a plethora of ways to take views into account. If you are struggling to have your child’s voice heard, reach out to an experienced family law team like McKenzie Lake Lawyers to help guide you through your options.
This article was written by Family Law Lawyer, Katrina Wiegers.
If you require assistance with any Family Law matter, speak to a Family Lawyer at McKenzie Lake Lawyers LLP by calling (519) 672-5666.
