Smith v. Lagace, (2011) 520 A.R. 269 (QB)

• Judge: Veit, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: June 16, 2011
• Citations: (2011), 520 A.R. 269 (QB);2011 ABQB 405

Smith v. Lagace (2011), 520 A.R. 269 (QB)

MLB headnote and full text

Temp. Cite: [2011] A.R. TBEd. JL.035

Morgan Bradford Smith (applicant) v. Allison Norma Lagace (respondent)

(FL03 24609; 2011 ABQB 405)

Indexed As: Smith v. Lagace

Alberta Court of Queen's Bench

Judicial District of Edmonton

Veit, J.

June 27, 2011.

Summary:

The parties were the parents of a 12 year old daughter. They were involved in parenting proceedings in the Provincial Court. The father applied to the Court of Queen's Bench for an order appointing a lawyer for the daughter.

The Alberta Court of Queen's Bench dismissed the application.

Family Law - Topic 2095

Custody and access - The hearing - Counsel - Representation of child's interests - The parties were the parents of a 12 year old daughter - They were involved in parenting proceedings in the Provincial Court - The father applied to the Court of Queen's Bench for an order appointing a lawyer for the daughter - At issue was, inter alia, which court had jurisdiction to hear the application - The Alberta Court of Queen's Bench stated that "[j]urisdiction was not fully argued by the parties. It may be that the constitutional jurisdiction to appoint an independent lawyer for a child is a prerogative of a superior court: such an appointment gives to a child the status of an adult and determining status is typically the preserve of superior courts. Section 3(3) of the Family Law Act makes it clear that the Legislature was not attempting, in s. 95(3), to give parens patriae jurisdiction to the Provincial Court. As other case law points out, even where there is legislation authorizing the appointment of a lawyer for a child, the exercise of that power is described as an exercise of parens patriae jurisdiction." - The outcome of such an analysis was that the Court of Queen's Bench was the court with exclusive jurisdiction to hear a contested application for the appointment of a lawyer for the child - See paragraphs 15 to 20.

Family Law - Topic 2095

Custody and access - The hearing - Counsel - Representation of child's interests - The parties were the parents of a 12 year old daughter - They were involved in parenting proceedings - The father applied for an order appointing a lawyer for the daughter - The Alberta Court of Queen's Bench reviewed the general principles about the appointment of lawyers for children - First, the court's jurisdiction should be exercised only where the parents were unable to adequately represent the best interests of their children - Second, in determining whether the parents were able or unable to adequately represent the rights and best interests of their children, the court could look to factors such as those articulated by the Australian courts, although the presence of any one of those factors would not necessarily result in the appointment of a lawyer - Third, a lawyer should not be appointed for a child until the court had determined that it was desirable and necessary for independent counsel to be appointed - See paragraphs 22 to 26.

Family Law - Topic 2095

Custody and access - The hearing - Counsel - Representation of child's interests - The parties were the parents of a 12 year old daughter - They were involved in parenting proceedings in the Provincial Court - The father applied to the Court of Queen's Bench for an order appointing a lawyer for the daughter - At issue was, inter alia, which court had jurisdiction to hear the application - The Alberta Court of Queen's Bench dismissed the application - Assuming, without deciding, that the appointment of a lawyer for a child over the objection of one of the parents was within the exclusive jurisdiction of the Court of Queen's Bench, then the court denied the father's application - The appointment of an independent lawyer for the child was neither desirable nor necessary - Each of the parents appeared to be responsible and interested in the best interests of their child - There was no need for the court to replace the parents and to exercise its own parens patriae jurisdiction - This child was not in danger - She did not need to be rescued - There were ways, other than through the appointment of an independent lawyer, in which the child's expressed desire with respect to parenting regime could be brought before the court - See paragraphs 27 to 32.

Family Law - Topic 2095

Custody and access - The hearing - Counsel - Representation of child's interests - The parties were the parents of a 12 year old daughter - They were involved in parenting proceedings in the Provincial Court - The father applied to the Court of Queen's Bench for an order appointing a lawyer for the daughter - At issue was, inter alia, which court had jurisdiction to hear the application - The Alberta Court of Queen's Bench dismissed the application - If the Provincial Court had jurisdiction to change the status of a child to that of an adult for the purpose of retaining a lawyer, then the Provincial Court and the Court of Queen's Bench had concurrent jurisdiction - In that case, the framework of the Family Law Act required an applicant to establish that, as between the two courts, an application could properly be heard in the court of the applicant's choice given the principles set out in s. 4 of the Act - Here, the father had not satisfied that requirement - See paragraphs 33 to 40.

Cases Noticed:

Puszczak v. Puszczak (2005), 384 A.R. 57; 367 W.A.C. 57; 2005 ABCA 426, refd to. [para. 7].

A.C.B. v. R.B. - see Bhajan v. Bhajan.

Bhajan v. Bhajan (2010), 269 O.A.C. 335; 2010 ONCA 714, refd to. [para. 7].

L.M.H. v. S.R.H. (2010), 507 A.R. 201; 2010 ABQB 769, refd to. [para. 7].

Platner v. Platner, [2010] A.R. Uned. 671; 2010 ABCA 342, refd to. [para. 8].

R.W. et al. v. Director of Child Welfare (Alta.), [2010] A.R. Uned. 780; 2010 ABCA 412, refd to. [para. 8].

E.E.E. v. C.F.H. (2009), 457 A.R. 109; 457 W.A.C. 109; 2009 ABCA 46, refd to. [para. 8].

B.J.B. v. K.T.L., [2008] A.R. Uned. 280; 2008 ABPC 91, refd to. [para. 8].

Authors and Works Noticed:

Davis, Christine, Q.C., Access to Justice for Children: The Voice of the Child in Custody and Access Disputes (2004), 22 CFLQ 153, generally [para. 6].

Flatters, Nancy A., Children: Status and Representation (LESA seminar Representing Children and High Conflict Custody Cases, 2002), generally [para. 6].

Hebert, Patricia, Counsel for Children: Principles for Child Welfare Proceedings in Alberta (LESA seminar Representing Children and High Conflict Custody Cases, 2002), generally [para. 6].

McKay-Panos, Linda, The Rights of Children to Separate Representation: United Nations Convention on the Rights of the Child (LESA seminar Representing Children and High Conflict Custody Cases, 2002), generally [para. 6].

Counsel:

Carolyn L. Seitz (Duncan & Craig LLP), for the applicant;

J.R.B. Shortreed (Biamonte Cairo), for the respondent.

This application was heard on June 16, 2011, by Veit, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following memorandum of decision on June 27, 2011.