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In British Columbia, the court may only appoint counsel for a child if both requirements set out in s.203(1) of the Family Law Act, S.B.C. 2011, c. 25 [FLA] are met.
Statutory Framework
Section 203 of the FLA provides as follows:
203 (1) The court may at any time appoint a lawyer to represent the interests of a child in a proceeding under this Act if the court is satisfied that
- (a) the degree of conflict between the parties is so severe that it significantly impairs the capacity of the parties to act in the best interests of the child, and
(b) it is necessary to protect the best interests of the child.
(2) If the court appoints a lawyer under this section, the court may allocate among the parties, or require one party alone to pay, the lawyer’s fees and disbursements.
The case law that has considered this section to date makes clear that the threshold is high (perhaps too high), which has resulted in a number of unsuccessful applications. In 2022, the CBABC made a request to the Deputy Attorney General to amend s. 203 of the FLA (https://www.cbabc.org/our-impact/submissions/deputy-attorney-general-amendment-to-s-203-of-family-law-act/). The proposed amendment would lower the threshold that must be met before the court can order a legal representative for a child who is involved in a family matter. To date, that amendment has not been made.
The Case
In the recent decision in S.D.N. v. E.G.N., 2025 BCSC 2219, the Court considered an application in which the lawyer applied on behalf of the child for an order pursuant to s.203 of the FLA that she be appointed as counsel for the child (the “Child Lawyer Application”). The respondent father paid the retainer for the lawyer making the application.
A letter from Carly Debuck of the Child and Youth Legal Centre advising that the child at issue, T., had met with her twice and wished to have her views heard in court via her own lawyer or an updated s.211 report precipitated the application.
- was a 15-year-old girl, and the only shared biological child of the parties. T. had a documented history of anxiety but was otherwise a healthy child with no special needs.
The parties separated when T. was approximately five and a half years of age. From the time of separation until T. was 12 years old, there was a shared parenting arrangement in place between the parties by agreement.
Thereafter, for a period of approximately two years, between the time that T. was 12 and 14 years of age, she was completely estranged from the claimant. Not surprisingly, the parties had very different views on what caused the estrangement between the claimant and T. The claimant alleged alienation by the respondent while the respondent argued that the claimant’s parenting conduct over a span of many years resulted in T. justifiably rejecting the claimant. At the time, the trial of the matter had not yet proceeded.
The matter was previously set for trial in October 2024 but, on the eve of trial, the parties had negotiated a very comprehensive interim consent order (the “Interim Consent Order”), which provided for reunification therapy, implementation of a progressive parenting time schedule for T. and close judicial oversight of the proceeding.
Despite the Interim Consent Order, the path forward for the parties and T. was not without challenges. At the time of the Child Lawyer Application, the relationship between T. and the claimant remained fragile though there had been some progress made.
The claimant opposed the application. She argued that the statutory requirements for the appointment of counsel under s.203 of the FLA were not satisfied in the circumstances. She also argued that allowing T. to have counsel would “over empower” her and for, various reasons, was not in her best interests.
The respondent father, having paid the retainer for counsel to bring the application on behalf of T., not surprisingly consented to the relief sought.
Justice Hardwick considered the various expert reports on the parenting issues the parties intended to tender at trial and the objections to same, including the jointly commissioned s.211 report by Mr. Colby, which the claimant intended to object to at trial. While the respondent had filed an application seeking an update to the s.211 report in the summer, he had not proceeded with the application in light of the letter from Ms. Debuck, which was received a few weeks prior to the hearing date of the application for the updated s.211 report.
The Court also considered the parties’ anticipated positions at trial as set out in their respective trial briefs. Specifically, the claimant sought orders that she and T. participate in the Family Bridges program and that T. not have any contact with the respondent or his family for not less than 90 days. She also sought compensatory parenting time for the two years that she did not see T. and subsequently a return to week on/week off parenting time.
In contrast, the respondent sought an order that he have primary parenting of T. He opposed any further reunification counselling.
The Law
After considering the relevant case law, Justice Hardwick noted that the test imposed by s.203 is a stringent one and, as a result, most applications (at least ones that result in reported decisions) have not been successful.
Of note is that while Justice Hardwick did not substantively address the Ontario authorities that were relied on given the difference in the legislation between the provinces, she noted that there are “some interesting points that can be gleaned from these authorities that might assist in informing the overall analysis of the issue”.
Section 203(1)(a) – step one
In considering step one of the analysis (i.e. is the conflict so severe that it significantly impairs the parties’ ability to act in the best interests of the child) and having reread the decision in J.E.D.S. v. Y.E.P., 2018 BCCA 286 “multiple times” and the cases following it, Justice Hardwick held that the threshold under s.203(1)(a) of the FLA “must not be so high that it requires what amounts to permanent impairment”. In the case at bar, while the parties had been “doing kind of okay” in their co-parenting of T. with “some bumps in the road”, it was being “guided by the ongoing post-reunification assistance of Wendy Blancher, being closely managed through experienced counsel and occurring with the knowledge that the courts retain its judiciary supervisory role that the parties specifically agreed to in the Interim Consent order until such time as there was a final order made”.
As Justice Hardwick put it, “while I do not want to diminish the progress the parties have collectively made since October 2024, I still consider the degree of conflict to be so severe that it meets the threshold under s.203(1)(a) of the FLA”.
Section 203(1)(b) – step two
The Court was then required to consider whether the appointment of counsel would be in T.’s best interests.
In that regard, Justice Hardwick noted that the Court would not have the benefit of an updated s.211 report at the trial, which would have addressed, inter alia, T.’s views after having completed the reunification therapy and resumed shared parenting. An updated s.211 report would have been the Court’s preference over a judicial interview in the circumstances.
Fortunately, the Court was not prepared to defer to the view of Ms. Blancher that T. “should not have any input in the court proceedings”. Ms. Blancher had expressed this view to the parties upon learning that the respondent had paid the retainer for counsel to bring the within application.
Ultimately, Justice Hardwick held as follows in ordering that Mr. Jenab be appointed counsel for T.:
- [70] Simply stated, without the appointment of counsel, I am not satisfied that I will have satisfactory evidence as T.’s views post-completion of the SFRT to make prospective orders that are in her best interests as I am statutorily required to do. As I have already noted, T.’s views are not determinative and must be weighed in consideration of all the evidence in the multifactorial analysis required, but I think the involvement of counsel in the manner described by Ms. Jenab will be of valuable assistance to the Court in conducting that analysis.
Ms. Jenab had evidently done a good job of explaining her role using the analogy of “the bus” as the Court noted that her explanation was quite helpful. Ms. Jenab had submitted that appointing a lawyer for T. would not be the same as “allowing T. to drive the bus”. Rather, the role of counsel was to explain to T. “the route the bus is taking and the stops it is making along the way”.
Commentary
Though we were retained late in the day, it seems clear that this matter was high conflict. The child had been estranged from the claimant for a period of two years, a protection order had been in place for a period of time during the estrangement, and the Interim Consent Order, which was entered into on the eve of the first trial, was 12 pages in length and stipulated in great detail how the reunification program was to proceed.
Interestingly, the claimant’s position between August 2025 when the respondent’s travel application was heard and October 31st, when the Child Lawyer Application was heard had changed quite drastically. At the application for travel in August, it was the claimant’s position that the respondent had been undermining the reunification between her and T., which was contrary to the Interim Consent Order and T.’s best interests. She had opposed the application on the basis that there was a significant disparity between T.’s attitude and level of participation when she was at the claimant’s home compared to when she was at the respondent’s home.
At the Child Lawyer Application, the claimant instead argued that the parties could communicate effectively and had made “remarkable progress” through reunification counselling. The claimant detailed the regular correspondence exchanged between the parties and the continued involvement of Ms. Blancher in that regard.
In making her decision, Justice Hardwick aptly noted that while the parties were doing “kind of okay” in their co-parenting of T. with “some bumps in the road”, they were still being guided by the ongoing post-reunification assistance of Ms. Blancher and closely managed by experienced counsel. They were also aware of the impending trial date and the judiciary supervisory role that the Court continued to play as part of the Interim Consent Order.
The parties’ drastically differing positions regarding parenting arrangements was also a very good indicator of the level of conflict between the parties. A matter such as this one, with the history described and in which the parties were seeking vastly different parenting arrangements, including a very radical order that T. attend the Family Bridges program and not see the respondent for a period of 90 days juxtaposed against the respondent’s position that he should have primary parenting of T., is undoubtedly high conflict. However, whether it meets the threshold set under s.203 is what the Court was left to consider. Fortunately, the Court held that it did.
The Court’s determination that the threshold set under s.203(1)(a) must not be so high that it requires “what amounts to permanent impairment” will be helpful moving forward for parties seeking the appointment of counsel for a child. Many of the previous cases had failed at the first part of the s.203(1) test despite what appeared to be very high levels of conflict between the parties, with one decision even noting that although the dispute between the parties was a significant contributing factor to the child’s anxiety, the threshold was still not met: K.M.H. v. P.S.W., 2018 BCSC 1318.
With respect to the second part of the test in s.203, as in previous cases, the Court considered whether there were other means of obtaining T.’s views such that it would be in a position to consider those views in making orders that were in her best interest as required by s.37 of the FLA. Had the s.211 report been updated in the case at bar, the Court may have simply relied on the report in terms of obtaining T.’s views and not found that the appointment of counsel was necessary to protect T.’s best interests.
Finally, it is helpful that the Court noted that it was not inclined to defer to Ms. Blancher’s view that T. “should not have any input in the court proceedings”. As Justice Hardwick noted, this perspective is not in line with jurisprudence, including the seminal decision of Madam Justice Martinson in B.J.D. v. D.L.G., 2010 YKSC 44. Hopefully, this decision will be instructive on this issue moving forward.
Ultimately, and fortunately for the parties and T., this matter settled a week into trial.
The family practice group at LK Law is equipped with the knowledge and experience to help you navigate these complex issues. Contact us today to book an initial consultation.
This article is intended to be an overview of the law and is for informational purposes only. Readers are cautioned that this article does not constitute legal or professional advice and should not be relied on as such. Rather, readers should obtain specific legal advice in relation to the issues they are facing.
