Puszczak v. Puszczak, 2005 ABCA 426

• Judge: Russell, Hunt and Paperny, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: November 09, 2005
• Citations: 2005 ABCA 426;(2005), 384 A.R. 57 (CA)

Puszczak v. Puszczak (2005), 384 A.R. 57 (CA);

    367 W.A.C. 57

MLB headnote and full text

Temp. Cite: [2005] A.R. TBEd. DE.065

Joanna Marie Puszczak (plaintiff/appellant) v. Paul John Puszczak (defendant/respondent)

(0501-0255-AC; 2005 ABCA 426)

Indexed As: Puszczak v. Puszczak

Alberta Court of Appeal

Russell, Hunt and Paperny, JJ.A.

November 9, 2005.

Summary:

The father applied for a variation of the custody of the parties' 12 year-old child. The father also sought the appointment of counsel for the child.

The Alberta Court of Queen's Bench allowed the motion for the appointment of counsel for the child. The mother appealed.

The Alberta Court of Appeal allowed the appeal where the appointment had not been made properly. The court held that, if an application for the appointment of independent counsel for the child were made, the counsel that had been appointed at first instance would not be permitted to act for the child.

Family Law - Topic 2095

Custody and access - The hearing - Counsel - Representation of child's interests - The Alberta Court of Appeal discussed the appointment of independent counsel for a child who was the subject of custody proceedings - See paragraphs 9 to 16.

Family Law - Topic 2095

Custody and access - The hearing - Counsel - Representation of child's interests - A chambers judge appointed counsel for a child who was the subject of a custody dispute - The appointment was made on the basis that the lawyer appointed was a well known family lawyer - The Alberta Court of Appeal quashed the appointment where the chambers judge had failed to undertake any consideration of whether counsel for the child was necessary or desirable in the circumstances - See paragraphs 1 to 17.

Family Law - Topic 2095

Custody and access - The hearing - Counsel - Representation of child's interests - The Alberta Court of Appeal ruled that a father seeking a variation of custody was not entitled to retain counsel on behalf of the child of the parties without consultation of the mother who was the child's joint guardian and primary custodial parent - See paragraphs 18 and 19.

Family Law - Topic 2095

Custody and access - The hearing - Counsel - Representation of child's interests - A father seeking a variation of custody respecting the parties' 12 year-old son retained, met and paid counsel for the son all in the absence of and without the knowledge of the mother - The Alberta Court of Appeal held that this lacked the appearance of independence - See paragraphs 21 to 23.

Cases Noticed:

Kalaserk v. Nelson, [2005] Northwest Terr. Cases 4; [2005] 8 W.W.R. 638 (S.C.), refd to. [para. 10].

Strobridge v. Strobridge (1994), 72 O.A.C. 379; 18 O.R.(3d) 753 (C.A.), refd to. [para. 12].

Wahl v. Wahl (2000), 257 A.R. 212 (Q.B.), refd to. [para. 13].

K., Re, [1994] F.L.C. 92-461 (Aust. Full Ct. Fam. Ct.), refd to. [para. 14].

Stefureak v. Chambers, [2004] O.T.C. 922; 6 R.F.L.(6th) 212 (Sup. Ct. Fam. Ct.), refd to. [para. 14].

B. and R. and the Special Representative, Re, [1995] F.L.C. 92-636 (Aust. Full Ct. Fam. Ct.), refd to. [para. 15].

V.L. v. D.L. (2001), 293 A.R. 104; 257 W.A.C. 104 (C.A.), refd to. [para. 18].

Authors and Works Noticed:

Davies, Christine, Access to Justice for Children: The Voice of the Child in Custody and Access Disputes (2004), 22 Can. Fam. L.Q. 153, generally [para. 10].

Law Society of Alberta, Code of Professional Conduct, c. 9, rule 7.1 [para. 20]; Commentary C.7.1 [para. 20]; c. 14, rule 2(d) [para. 21].

Counsel:

E.L. Lenz, Q.C., for the appellant;

R.G. Kent, for the respondent;

D.G. Moe, for the child.

This appeal was heard on November 9, 2005, by Russell, Hunt and Paperny, JJ.A., of the Alberta Court of Appeal.

The decision of the Court of Appeal was delivered orally on November 9, 2005. Written reasons for judgment by Paperny, J.A., were filed on December 8, 2005.