2018 BCCA 286 J.E.S.D. v. Y.E.P.

COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:	J.E.S.D. v. Y.E.P.,
	2018 BCCA 286

Date: 20180713

Dockets: CA44373; CA44425

Docket: CA44373

Between:

S.D.

Appellant

(Applicant)

And

J.E.S.D.

Respondent

(Claimant)

And

Y.E.P.

Respondent

(Respondent)

And

Attorney General of British Columbia

Respondent

(Respondent on Application)

- and -

Docket: CA44425

Between:

Attorney General of British Columbia

Appellant

(Respondent on Application)

And

J.E.S.D.

Respondent

(Claimant)

And

Y.E.P.

Respondent

(Respondent)

And

S.D.

Respondent

(Applicant)

Before:

The Honourable Mr. Justice Groberman

The Honourable Madam Justice Stromberg-Stein

The Honourable Mr. Justice Savage

On appeal from: Orders of the Supreme Court of British Columbia, dated March 8, 2017 and April 25, 2017 (J.E.S.D. v. Y.E.P., 2017 BCSC 495 and 2017 BCSC 666, New Westminster Docket No. E011396).

Counsel for S.D.:	S.J. Rauch
The Respondent, appearing in Person:	J.E.S.D.
Counsel for Respondent Y.E.P.:	J.A. Janzen
Counsel for Attorney General of B.C.:	E.L. Ross K. Chewka
Place and Date of Hearing:	Vancouver, British Columbia February 6 and 7, 2018
Place and Date of Judgment:	Vancouver, British Columbia July 13, 2018
Written Reasons by:
The Honourable Mr. Justice Groberman
Concurred in by:
The Honourable Madam Justice Stromberg-Stein The Honourable Mr. Justice Savage

Summary:

Ms. D. and Mr. P. are involved in long-running litigation over Mr. P.’s access to, and parenting relationship with, their daughter, S., who is now 17 years old. S. applied to become a full party to the litigation, and to have counsel appointed to represent her. The judge refused that relief but, of his own motion, appointed an amicus curiae without defined functions. He ordered the Attorney General to provide public funding for the amicus. S. appealed from the denial of her application for counsel and from the appointment of an amicus. The Attorney General appealed the funding order. On appeal, held: Appeal allowed from the order appointing an amicus. Appeal dismissed from the denial of an order appointing counsel to represent S. The judge made no error in finding that the requirements for appointing counsel under s. 203 of the Family Law Act were not met. He erred, however, in resorting to the parens patriae jurisdiction to appoint amicus. Amici can be appointed pursuant to the court’s power to control its own process, but should be appointed only to deal with specific and exceptional circumstances. The judge did not refer to any such circumstances in this case. Government funding of amici can only be ordered where their presence is essential to the discharge of judicial functions such that the absence of an amicus would interfere with the constitutionally mandated independence of the judiciary.

Reasons for Judgment of the Honourable Mr. Justice Groberman:

[1] S.D. (“S.”) is the 17-year old daughter of Ms. J.E.S.D. (“Ms. D.”) and Mr. Y.E.P. (“Mr. P.”). Ms. D. and Mr. P. are involved in long-running litigation over Mr. P.’s access to, and parenting relationship with, S.

[2] At present, the biggest obstacle to Mr. P. having a parental relationship with S. is that S. does not want to have anything to do with him. As this matter may yet go to trial, I do not wish to say much about the background to her refusal to spend time, or even communicate with, Mr. P. I will say only that, apart from S.’s attitude toward him, there does not appear to be any basis for precluding Mr. P. from having access to and parental responsibilities in respect of S.

[3] Given S.’s age and level of maturity, her attitude toward Mr. P. would seem to make any relationship between the two of them impossible. It is difficult to understand what order a court might make to resolve the situation. Without cooperation from S., no order can be effective in restoring or building a relationship between S. and Mr. P. There is no indication that S. is prepared to cooperate or to relinquish the effective control she has over Mr. P.’s relationship with her.

[4] Mr. P. is, nonetheless, pursuing litigation with a view to securing a court order giving him parenting time and parental responsibilities. It appears that he will also seek an order requiring S. to participate in an intensive counselling program.

[5] The current appeal arises out of S.’s application to be made a full party to the litigation between her parents, and to have a lawyer appointed to represent her. The chambers judge dismissed the application, but appointed a lawyer to act as amicus curiae in the proceeding. He made a further order that the Attorney General pay the lawyer. S. appeals from the dismissal of her application to have a lawyer appointed to represent her. The Attorney General appeals from the order requiring public funding of the amicus.

Background

[6] Ms. D. is a Canadian citizen, living in the Lower Mainland. Mr. P. is an American citizen, who lives in Maryland. The couple were legally married in Japan in December 1999 after a brief relationship. They planned a wedding ceremony for the summer of 2000 in Vancouver. Ms. D. became pregnant with S. approximately six weeks before the planned ceremony. The night before the ceremony was scheduled to take place, Mr. P. decided to end the relationship, and left Vancouver for New York, where he then lived.

[7] S. was born in April 2001, and has, throughout her life, lived with Ms. D. Ms. D. and Mr. P. entered into a separation agreement in March 2002, under which Ms. D. was to have “sole custody and guardianship of” S. and Mr. P. was to have generous access, including at least two periods of in-person access each year. The Supreme Court granted an order of divorce in January 2003.

[8] In fact, Mr. P. has never had regular access to S. Until 2005, Ms. D. would not allow Mr. P. to spend time with S. except under her supervision. Thereafter, the parties appeared in court on access issues on a number of occasions. In February 2006, a judge of the Supreme Court ordered specified access for Mr. P., but his order did not, in the end, succeed in establishing any regular access. On August 21, 2009, another judge of the Supreme Court ordered the production of a report pursuant to s. 15 of the Family Relations Act, R.S.B.C. 1996, c. 128. She specifically requested that the report consider whether parental alienation was playing a role in the difficulties in effecting access.

[9] While a report was prepared, it did not directly address the issue of parental alienation. In reasons indexed as 2011 BCSC 1237, a different judge (who has become the case management judge) reiterated the need for a full report dealing with parental alienation. He made an interim order modifying the access regime pending receipt of the report and a full hearing.

[10] In April 2016, a psychologist provided a report to the court under s. 211 of the Family Law Act, S.B.C. 2011, c. 25. The report was comprehensive in its assessment of the parties and in its examination of S.’s situation. It made several recommendations with a view to creating or restoring relations between S. and Mr. P. It was anticipated that the report would be considered fully by the court in the course of a lengthy hearing then scheduled for June 2017. Unfortunately, that hearing has yet to take place.

Proceedings in the Court Below

[11] The preparation of the report led to concern on the part of S. as to what orders the court might make regarding counselling and contact between her and Mr. P. As a result, with the assistance of pro bono counsel, she filed an application in July 2016, seeking an order that she be made a full party to the proceedings, and that a lawyer be appointed under s. 203 of the Family Law Act to represent her interests.

[12] In support of her application, S. filed an affidavit setting out her own view of matters. The judge interviewed her on August 8, 2016, to obtain further information and to better understand her concerns.

[13] At some point, the judge began to consider whether, rather than appointing counsel for S., he should appoint an amicus curiae. He did not propose any specific role for amicus, apart from providing assistance to the court:

[8] In the course of considering the submissions made by … [S.’s] proposed counsel, and the opinions of [the psychologist], coupled with the possibility that neither party will be represented by counsel at trial, I formed the view that to ensure a proper and fair trial that the court would be greatly assisted by the appointment of amicus curiae. The court, on its own initiative, proposed to the parties that amicus be appointed to assist the court in the upcoming trial. Thus, I invited the Attorney General to appear and make representations concerning the appointment and funding of amicus. The Attorney took no position on the appointment of amicus, but firmly outlined the Crown’s objection to any order that it pay the costs of that representation. … Neither party has significant resources to pay counsel.

[14] In his March 8, 2017 reasons, the judge dismissed S.’s application, and instead ordered the appointment of an amicus.

[15] In rejecting the application to appoint counsel to represent S., the judge considered the scope of s. 203 of the Family Law Act. That section reads:

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.

[16] In assessing whether the requirements of s. 203 were made out, the judge noted certain concerns expressed in the psychologist’s report, and expressed doubt as to the capacity of each parent to fully represent the child’s best interest:

[14] … The … report indicates that [S.] has an unhealthy relationship with her mother and is being alienated from her father. [The psychologist] believes that [S.] may be enmeshed in a relationship that is psychologically unhealthy for her. She presents as an adultified and parentified child. [The psychologist] opined that the damage in her relationship with her father should be addressed. She said the damage in [S.’s] relationship with her father and his new family will be significant as time moves on and she grows into adulthood. [She] reports that Ms. D. has done many things well in parenting [S.], but lacks insight regarding the extent to which she has enlisted her daughter to meet her own needs at the expense of [S.’s] needs. She noted that children who experience these problems suffer a variety of short-term and long-term deficits in both their individual functioning and their interpersonal relationships. Parents often do not appreciate the extent to which pseudo-maturity is occurring at a significant cost to child development. The questions addressed by [the psychologist] will be explored during the trial of this case.

…

[16] Based on the limited evidence provided by [the psychologist], it appears quite possible that Ms. D. is too enmeshed in this dispute and she does not have a clear or helpful perspective on [S.’s] best interests. Although those issues will be analyzed at trial, at this stage, Ms. D. may not be able to act in the best interests of [S.]. Mr. P. has been excluded from [S.’s] life and, although I think he might have a better sense and be able to act in the best interests of the child, his involvement at this stage on her behalf is impractical and would be unhelpful. Mr. P. has expressed through counsel a conviction that he does not want any measures taken that will harm [S.].

[17] The judge found, however, that the preconditions for the appointment of counsel under s. 203 were not satisfied:

[30] Based on [the psychologist’s] report, it is quite possible that [Ms. D.’s] ability to grasp the problems inherent in her own personal history and which are playing a part in her relationship with [S.] and [Mr. P.] is so impaired that she cannot be and is not able to act in [S.’s] best interest, but those are not questions of conflict. Rather, they reflect a possibility that [S.’s] development has been harmed by her lack of insight and [Ms. D.’s] lack of insight and that that issue will be the principal question to be addressed at the trial.

[31] I am satisfied that [Mr. P.] is not approaching the question of the relationship with [S.] in a confrontational manner and that he has the capacity to grasp and understand [S.’s] best interests are not impaired. [Mr. P.’s] submission that he does not want to take any steps that might cause more harm than good indicate a helpful and healthy insight into the problems concerning [S.’s] future health and well-being.

[18] In short, while the judge found that the parents might face certain limitations in their abilities to represent the child’s best interests, he rejected the idea that “the degree of conflict between the parties … significantly impair[ed their] capacity … to act in the best interests of the child”. Accordingly, the requirement set out in s. 203(1)(a) was not met.

[19] The judge also found that the appointment of counsel for S. would not meet the requirement of s. 203(1)(b), that such an appointment be “necessary to protect the best interests of the child.” Rather, he found that appointing counsel to act on S’s instructions would not serve to protect her best interests:

[23] I am not satisfied that the child has the insight, capacity, or inclination to reflect on her own best interests or on the issues in question that might affect her own best interest. It seems to me that she is a bright, capable, and aware child, but lacks the specific insight into her own needs and interests in light of what has been said by [the psychologist].

…

[32] I am concerned that [S.’s] mind is so closed to the prospect of any reconciliation with her father or counselling or other steps directed at that purpose that I am not satisfied that she has any awareness of her own best interest in light of the comments made in [the psychologist’s] report. Although there would be a great deal of value in [S.] receiving information and input from a lawyer to help her understand the legal process and the applications of the [Family Law Act], I am not satisfied that it is open to me on the facts to appoint … a lawyer to act on her behalf. In particular, I am satisfied that it would not be appropriate for [S.] to have a role in the trial that would involve cross-examination of her parents or [the psychologist] on the important issues.

[20] The judge concluded that he should not appoint counsel for S. He then turned his mind to the appointment of amicus curiae. He expressed concern that the parents, if self-represented, might be incapable of effectively exploring the questions raised by the psychologist. He considered that, while he could not appoint counsel under s. 203 of the Family Law Act, he could rely on the court’s parens patriae jurisdiction to appoint amicus curiae. He ordered that an amicus be appointed, but adjourned the matter, in order for inquiries to be made as to who should be appointed, and to hear further submissions on whether the Attorney General could be required to pay the amicus.

[21] Prior to the hearing of those submissions, a lawyer offered to act as amicus on a pro bono basis. Nonetheless, the judge proceeded to consider whether to order the Attorney General to pay counsel. At para. 44 of his April 25, 2017 reasons, without further explanation, he expressed the view that “it is not appropriate to rely on pro bono counsel to assist the Court in meeting its obligation in the exercise of the parens patriae jurisdiction to protect this child.”

[22] The judge considered that the parens patriae jurisdiction gave him very broad powers to make a funding order:

[22] The overriding principle is that the Crown, through the court, has jurisdiction to act to protect children and to do whatever is necessary to protect those interests that best ensure the safety, health and well-being of children when parents are unable or unwilling to act appropriately.

[23] Placing considerable reliance on Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43 [Criminal Lawyers’ Association], the judge concluded that it was permissible to make an order that the Attorney General pay the fees and disbursements of the amicus.

Issue on Appeal

[24] S. appeals from the judge’s March 8, 2017 order dismissing her application to have the court appoint counsel for her and appointing an amicus instead. She argues that the judge misinterpreted or misapplied s. 203 of the Family Law Act. She also contends that the judge should not, in any event, have appointed an amicus.

[25] The Attorney General appeals the order requiring that the Crown pay the amicus appointed by the court.

Section 203 of the Family Law Act

[26] In interpreting a statute, a court must apply Elmer Driedger’s “modern approach” to statutory interpretation, as adopted by the Supreme Court of Canada in Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27 at para. 21:

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

See also: Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42 at para. 26.

[27] The chambers judge’s analysis of s. 203 is in conformity with this approach. He found that the section sets out two prerequisites to the appointment of a lawyer to represent the interests of a child. First, the court must find that conflict between the parties is so severe that it significantly impairs their ability to act in the best interests of the child. Second, the court must be persuaded that the appointment of counsel is required to protect the best interests of the child. The judge’s interpretation respects the grammatical and ordinary sense of the words used in the legislation.

[28] The Supreme Court of Canada stated in Canada Trustco Mortgage Co. v. Canada, 2005 SCC 54 at para. 10, “[w]hen the words of a provision are precise and unequivocal, the ordinary meaning of the words play a dominant role in the interpretive process.” Here, where the language of s. 203 is clear and explicit, its ordinary meaning will be central in the analysis.

[29] Counsel for S. argues that s. 203 should be interpreted as providing a more expansive right of representation for children than is apparent on its wording. While she does not engage in any rigorous interpretation exercise, she puts forward a number of theories to support an expansive right. First, she refers to Charter values. The role of the Charter in interpreting statutes was discussed by Charron J., for the majority, in R. v. Rodgers, 2006 SCC 15:

[18] … Charter values as an interpretative tool can only play a role where there is a genuine ambiguity in the legislation. In other words, where the legislation permits two different, yet equally plausible, interpretations, each of which is equally consistent with the apparent purpose of the statute, it is appropriate to prefer the interpretation that accords with Charter principles. However, where a statute is not ambiguous, the court must give effect to the clearly expressed legislative intent and not use the Charter to achieve a different result. …

[19] If this limit were not imposed on the use of the Charter as an interpretative tool, the application of Charter principles as an overarching rule of statutory interpretation could well frustrate the legislator’s intent in the enactment of the provision. Moreover, it would deprive the Charter of its more powerful purpose – the determination of the constitutional validity of the legislation: Symes v. Canada, [1993] 4 S.C.R. 695, at p. 752; Willick v. Willick, [1994] 3 S.C.R. 670, at pp. 679-80; Vriend v. Alberta, [1998] 1 S.C.R. 493, at paras. 136-42; Bell ExpressVu, at paras. 60-66; Charlebois v. Saint John (City), [2005] 3 S.C.R. 563, 2005 SCC 74, at paras. 23-24.

[Emphasis in original.]

See also: Bell ExpressVu at para. 62.

[30] As s. 203 is not ambiguous, Charter values cannot play any significant role in its interpretation.

[31] I note that S. did not challenge the constitutional validity of s. 203 in the court below. While she attempted to include a Charter challenge in her arguments on the appeal, this Court refused to hear such a challenge on the well-established basis that Charter challenges will not, ordinarily, be allowed to be made for the first time on appeal: R. v. Ubhi (1996), 81 B.C.A.C. 161; R. v. Olson (1993), 28 B.C.A.C. 288; R. v. Vidulich (1989), 37 B.C.L.R. (2d) 391 (C.A.); R. v. Millar, 2004 BCCA 234 at para. 13. In the case before us, it would have been inappropriate to entertain a Charter challenge, as the record in the court below was not developed with a view to examining the constitutional validity of the legislation.

[32] S. also places reliance on the United Nations Convention on the Rights of the Child, November 20, 1989, Can. T.S. 1992 No. 3 [UNCRC]. It is well settled that Canada’s international obligations can inform the interpretation of domestic statutes, even when those obligations have not been implemented in domestic law. If possible, courts will avoid statutory interpretations that place Canada in breach of its international obligations and will prefer interpretations that reflect the principles of international law: R. v. Hape, 2007 SCC 26 at para. 53. Again, however, there are limits to the use of such interpretive tools. In Kazemi Estate v. Islamic Republic of Iran, 2014 SCC 62, Lebel J., speaking for the majority, said:

[60] … International law cannot be used to support an interpretation that is not permitted by the words of the statute. Likewise, the presumption of conformity does not overthrow clear legislative intent (see S. Beaulac, “‘Texture ouverte’, droit international et interprétation de la Charte canadienne”, in E. Mendes and S. Beaulac, eds., Canadian Charter of Rights and Freedoms (5th ed. 2013), at pp. 231-35). Indeed, the presumption that legislation will conform to international law remains just that – merely a presumption. This Court has cautioned that the presumption can be rebutted by the clear words of the statute under consideration (Hape, at paras. 53-54).

[33] He added, at para. 63, that where the provisions of the statute are not “genuinely ambiguous or [require] clarification” it is inappropriate for the court to look to international law for guidance.

[34] S. specifically relies on Article 12 of the UNCRC, which states:

1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

[35] Care must be exercised in interpreting the provisions of international conventions. The UNCRC applies across diverse legal systems and traditions. In the result, a purposive approach to its interpretation is required; it would be a mistake to assume that words in the convention necessarily correspond to specific concepts established in the Canadian legal system.

[36] Article 12, in its terms, does not go so far as to guarantee children a right to legal representation or to party status in a legal dispute. Rather, it requires that children’s voices be heard in proceedings that affect them. This requirement is echoed in various provisions of the Family Law Act, including ss. 37(2)(b) (requiring the court to consider children’s views in determining their best interests); 199(2)(a) (requiring the court to consider the impact of the proceeding on the child); 202(a) (allowing a judge to admit hearsay evidence of absent children); 202(b) (permitting other directions to receive a child’s evidence); and 211 (providing for the appointment of a person to assess the needs and views of a child), as well as the ability of the judge to interview the child.

[37] In this case, S.’s voice has been heard directly, through affidavits and an interview with the chambers judge, and indirectly through the report of the psychologist. It is possible that she may also be called upon to give further evidence, or provide additional observations at the trial. Article 12(2) does not, on its face, provide for a greater level of participation in this case.

[38] The parties also referred to the official UN commentaries on the UNCRC to support their arguments. These include: Committee on the Rights of the Child, General Comment No. 12 (2009); The right of the child to be heard, UN Doc. CRC/C/GC/12 (2009) [General Comment 12]; and Committee on the Rights of the Children, General Comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration (art. 3, para. 1), UN Doc. CRC/C/GC/14 (2013) [General Comment 14]. While these commentaries are not authoritative, they can shed light on the correct interpretation of the articles of the UNCRC.

[39] General Comment 12, at para. 35, emphasises that giving the child the opportunity to be heard directly, as was done in this case, is the best option. This commentary, at para. 36, also explains that the term “representative” in art. 12(2) “can be the parent(s), a lawyer, or another person (inter alia, a social worker).” Accordingly, the UNCRC does not mandate that the child have access to legal representation, as S. suggests.

[40] General Comment 14, at para. 88, “invites” state parties to “pay special attention” to a number of procedural safeguards to guarantee the protection of the best interests of children. One of these recommendations is contained in para. 96:

The child will need appropriate legal representation when his or her best interests are to be formally assessed and determined by courts and equivalent bodies. In particular, in cases where a child is referred to an administrative or judicial procedure involving the determination of his or her best interests, he or she should be provided with a legal representative, in addition to a guardian or representative of his or her views, when there is a potential conflict between the parties in the decision.

[41] The interpretation of this recommendation is not straightforward. In particular, it is not clear what is meant by “legal representation” or a “legal representative”. The official French version of General Comment 14 demonstrates this ambiguity. In French, para. 96 reads:

L’enfant a besoin d’une représentation juridique adéquate quand son intérêt supérieur doit être officiellement évalué et déterminé par un tribunal ou un organe équivalent. En particulier, l’enfant qui fait l’objet d’une procédure administrative ou judiciaire donnant lieu à une évaluation de son intérêt supérieur doit, outre un tuteur ou un représentant chargé d’exposer ses vues, se voir attribuer un conseil juridique s’il y a un risque de conflit entre les parties impliquées dans la décision. [Emphasis added.]

[42] In using the term “un conseil juridique” in place of the English term “legal representative”, the French version appears to indicate that the level of “representation” contemplated by the commentary is not a full right to counsel, but rather a right to have the benefit of legal advice.

[43] Of course, even if General Comment 14 did recommend greater availability of legal representation for children than what the Family Law Act provides, it could not override the provisions of the statute. The language and context of s. 203 indicate a deliberate choice to limit the circumstances in which a child has a right to counsel.

[44] In D.J. Martinson & C.E. Tempesta, “Young People as Humans in Family Court Processes: A Child Rights Approach to Legal Representation” (2018) 31 Can. J. Fam. L. 151, the authors adopt an expansive view of General Comment 14, and advocate for Canadian law to provide greater availability of legal representation for children. Nonetheless, they accept that s. 203 of the Family Law Act cannot be interpreted as going that far. At 194-95, the authors say:

Some Canadian laws and policies on legal representation for children are not consistent with a child rights approach, and therefore not in the best interests of children. For example, section 203 of British Columbia’s Family Law Act significantly limits the ability of courts to appoint lawyers for children as required by the Convention. The judge can do so only if 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. [Footnotes omitted.]

[45] I am not persuaded that anything in the UNCRC would allow the Court to ignore the clear limitations on the appointment of counsel set out in s. 203(1).

[46] While the failure to meet the requirements of s. 203(1)(a), in and of itself, would preclude the appointment of counsel under s. 203, the judge also found that the requirement of 203(1)(b) was not met, as it was not in S.’s best interest to become a full party to the litigation and to have her own counsel. S. contends that the judge erred in making that finding. She says that the court ought to have deferred to S.’s assessment of her best interests.

[47] Counsel for S. notes that the Family Law Act emphasizes the best interests of the child in proceedings involving children, especially s. 37(1), which reads:

37(1) In making an agreement or order under this Part respecting guardianship, parenting arrangements or contact with a child, the parties and the court must consider the best interests of the child only. [Emphasis added.]

[48] S. points to comments such as those made by this Court in Hellberg v. Netherclift, 2017 BCCA 363 at para. 76, that the best interests of the child “must be determined from a child-centred perspective”. Those comments echo statements made by L’Heureux-Dubé J. in her minority judgments in Young v. Young, [1993] 4 S.C.R. 3 at 26, and Gordon v. Goertz, [1996] 2 S.C.R. 27 at para. 143. It seems to me that the addition of the words “from a child-centred perspective” adds little to the phrase “best interests of the child”. The best interests of the child must, by definition, focus on the child and not on others. That is all that is meant by a “child-centred perspective”.

[49] Adding the phrase “from a child-centred perspective” to “best interests of the child’ can, unfortunately, lead to confusion. In this case, for example, S. argues that the court is bound to accept her view of her best interests as definitive, because the best interests of the child must be assessed from the child’s viewpoint. Such an interpretation would make the child, rather than the court, the final arbiter of her/his best interests. In my view, such an interpretation conflates the best interests of the child with the child’s wishes.

[50] I do not suggest that the child’s wishes are to be ignored in assessing what is in the child’s best interest. Under s. 37(2)(b) of the Family Law Act, the views of children are a relevant consideration in determining their best interests, unless it would be inappropriate to consider them. This consideration, however, is only one among many that helps a court determine what is in the best interests of the child.

[51] In A.C. v. Manitoba (Director of Child and Family Services), 2009 SCC 30, the Supreme Court of Canada considered the concept of “best interests of the child” in the context of legislation that permitted a court to authorize medical treatment, even against a child’s wishes. Justice Abella, writing for the majority, noted that as children gain maturity, their wishes become proportionately more important in determining what is in their best interests. She stated:

[87] The more a court is satisfied that a child is capable of making a mature, independent decision on his or her own behalf, the greater the weight that will be given to his or her views when a court is exercising its discretion under s. 25(8). In some cases, courts will inevitably be so convinced of a child’s maturity that the principles of welfare and autonomy will collapse altogether and the child’s wishes will become the controlling factor. …

…

[92] The statutory factors reflect decades of careful study into children’s needs and how the law can best meet them. … With our evolving understanding has come the recognition that the quality of decision making about a child is enhanced by input from that child. The extent to which that input affects the “best interests” assessment is as variable as the child’s circumstances, but one thing that can be said with certainty is that the input becomes increasingly determinative as the child matures.

[52] Inherent in the Court’s analysis in A.C. is the recognition that circumstances will exist when the child’s wishes do not conform to what is in his or her best interests. Children are sometimes incapable of identifying what is in their own best interests.

[53] While the views and wishes of a mature child, such as S., will be important in determining what is in her best interests, they will not be determinative.

[54] The chambers judge took into account S.’s desire to be represented by counsel and to be a full party in the proceedings. He considered that desire not to represent her best interests. The judge made no error in reaching that conclusion. S.’s wishes and points of view on appropriate parental arrangements will be before the trial court in a number of forms. She has had, and will have, many opportunities to put her viewpoints and her evidence before the judge. It is essential that S.’s views be before the court. It is not, however, essential that she be cast in the role of an adversarial party in the proceedings.

[55] Adversarial proceedings can easily destroy goodwill between the parties, and impede the development of healthy relationships. It would be invidious, and contrary to S.’s interests, to place her in an adversarial role against her father or against experts who have been engaged by the court.

The Appointment of an Amicus

[56] The judge appointed counsel as amicus curiae based on his view that the parens patriae jurisdiction of the court allowed him to do so. I am of the view that he erred in treating the parens patriae jurisdiction as the source of the power to appoint an amicus.

[57] The parens patriae jurisdiction is an important and broad jurisdiction of superior courts. In E. (Mrs.) v. Eve, [1986] 2 S.C.R. 388, La Forest J., on behalf of a unanimous Court, undertook a thorough analysis of the history and scope of the jurisdiction. He noted that it is a jurisdiction normally used for the protection of children and persons who are mentally incompetent. He was careful, however, to observe, at 427, that the use of the jurisdiction is circumscribed:

Though the scope or sphere of operation of the parens patriae jurisdiction may be unlimited, it by no means follows that the discretion to exercise it is unlimited. It must be exercised in accordance with its underlying principle. Simply put, the discretion is to do what is necessary for the protection of the person for whose benefit it is exercised; see the passages from the reasons of Sir John Pennycuick in Re X [In re X (a minor) (1974), [1975] 1 All E.R. 697 (C.A.)], at pp. 706‑07, and Heilbron J. in Re D [In re D (a minor) (1975), [1976] 1 All E.R. 326 (Fam. D.)] at p. 332, cited earlier. The discretion is to be exercised for the benefit of that person, not for that of others. It is a discretion, too, that must at all times be exercised with great caution, a caution that must be redoubled as the seriousness of the matter increases. This is particularly so in cases where a court might be tempted to act because failure to do so would risk imposing an obviously heavy burden on some other individual.

[58] Two other limitations on the parens patriae jurisdiction are important. First, as it is a prerogative power, it must yield to statutory provisions. Thus, in L.M. v. British Columbia (Director of Child, Family and Community Services), 2016 BCCA 367 at para. 33, Saunders J.A., speaking for a unanimous Court, said:

[33] Where there is a legislative scheme, this protective jurisdiction of the court applies only when there is a gap in that legislation: Beson v. Director of Child Welfare (NFLD), [1982] 2 S.C.R. 716, 142 D.L.R. (3d) 20. … Use of parens patriae jurisdiction is, accordingly, not meant to be an avenue for statutory amendment or broad interference with existing laws, and does not create substantive rights: Tsaoussis v. Baetz (1998), 112 O.A.C. 78, 41 O.R. (3d) 257 (C.A.); P.(E.) v. B.C. (Supt. of Fam. & Child Service) (1988), 23 B.C.L.R. (2d) 329, 28 D.L.R. (4th) 469 (C.A.).

[59] The second important limitation on the parens patriae jurisdiction is that it is a jurisdiction of the superior courts, and cannot be exercised by other tribunals or courts: see Eve at 426.

[60] In this case, the judge’s reasons for appointing an amicus were not entirely clear. He did not specifically find that Ms. D. and Mr. P. were incapable of presenting their cases. Indeed, in this case, it is difficult to understand what deficiencies the judge was attempting to alleviate.

[61] The basic facts of the case were thoroughly canvassed in the various psychological reports prepared for the court. There was no reason to suspect that the parties were incapable of correcting any factual errors in the reports in giving evidence.

[62] It is also not clear why the judge considered that the parties would have difficulty cross-examining the psychologist or advancing arguments. While experienced counsel would, undoubtedly, be more at home in a courtroom than would Ms. D. or Mr. P., there is no basis for believing that they lack the capacity to adequately advance their respective positions.

[63] The judge did express concern regarding Ms. D.’s ability to advance the best interests of S., but his concerns were based entirely on the conclusions given in the psychologist’s report. It is entirely possible that Ms. D., in providing evidence or in cross-examining the psychologist, might have eliminated the judge’s concerns. Further, in the event that the psychologist’s views of Ms. D. were unshaken, the judge would be entitled to accept those views; it is unclear how any infirmity in Ms. D.’s appreciation of S.’s best interests would handicap the court in determining where those interests lay.

[64] It is, in short, unclear what advantage, apart from convenience, the court considered would be afforded by the appointment of an amicus. Most importantly, it is not clear that the appointment of an amicus was effected for the protection of S. rather than for the convenience of the court or the parties, or the efficiency of the trial process. These goals are not in accordance with the “underlying principle” of the parens patriae jurisdiction.

[65] It is important to recognize, as well, that the Family Law Act specifically addresses the issue of the appointment of counsel to represent the interests of a child. The powers are deliberately limited to specific circumstances. Great caution should be exercised in interpreting the parens patriae jurisdiction in a manner that would, effectively, amend the statute.

[66] The parens patriae jurisdiction, while broad, has important limitations. There is an unfortunate tendency, illustrated by cases such as L.M. and this case, for courts to assume that any case involving children presents an opportunity to exercise sweeping powers in the name of parens patriae. Most often, the necessary powers will be found elsewhere – typically either in statute or in the inherent powers of a court.

[67] The power to appoint an amicus has been recognized as an inherent power of superior courts. In Criminal Lawyers’ Association, Fish J., writing in dissent (though not on this point), recognized that statutory courts also possess the power to appoint an amicus:

[112] In the case of statutory courts, the power to appoint an amicus derives from the court’s authority to control its own process in order to administer justice fully and effectively. Their authority to appoint amici is necessarily implied in the power to function as a court of law: R. v. 974649 Ontario Inc., 2001 SCC 81, [2001] 3 S.C.R. 575, at paras. 70-71; Cunningham [R. v. Cunningham, 2010 SCC 10], at para. 19.

[68] A court may appoint an amicus where it concludes that such an appointment is required in order to administer justice fully and effectively. That appears to be the general basis upon which the judge acted in this case. It was unnecessary, in the circumstances, to refer to the parens patriae jurisdiction.

[69] A court must exercise considerable restraint, however, in appointing an amicus. In general, parties are entitled to control the presentation of their cases, and trials in Canada are founded on conceptions of procedural fairness that are unique to the adversarial process. In Criminal Lawyers’ Association, Fish J., in dissent, commented on the restraint that a court should exercise before appointing an amicus:

[115] The discretion of trial judges to appoint an amicus is not unrestricted. The power to appoint should be exercised sparingly and with caution (see Caron [R. v. Caron, 2011 SCC 5], at para. 30), and appointments should be in response to specific and exceptional circumstances. Trial judges must not externalize their duty to ensure a fair trial for unrepresented accused by shifting the responsibility to amici curiae who, albeit under a different name, assume a role nearly identical to that of defence counsel. [Emphasis in original.]

[70] Justice Karakatsanis, speaking for the majority, agreed:

[47] … [A]s my colleague Fish J. observes, much as is the case for other elements of inherent jurisdiction, the authority to appoint amici should be used sparingly and with caution, in response to specific and exceptional circumstances (para. 115). Routine appointment of amici because the defendant is without a lawyer would risk crossing the line between meeting the judge’s need for assistance and the province’s role in the administration of justice.

[71] While Criminal Lawyers’ Association was primarily concerned with the appointment of amici in criminal cases, the cautions expressed should also be applied to civil cases. Amici should be appointed only in response to specific and exceptional circumstances. Further, there is a need to define the role of the amicus with some precision. The amicus is present at a civil trial only to address specific circumstances, and should not take on a free-wheeling or undefined role.

[72] The case management judge in this case considered that he had a wide discretion to appoint an amicus, without limitation, under the parens patriae jurisdiction. He was wrong in that respect. His powers to appoint an amicus derived from the court’s inherent jurisdiction, and was subject to the limitations I have discussed.

[73] As the case management judge did not properly consider the limitations on the appointment of an amicus, I would set aside the order appointing an amicus. In setting aside the order, I do not say that the judge is powerless to appoint an amicus. I say only that, if an amicus is to be appointed, it must be on proper considerations.

Is there Authority to Order the Attorney General to Pay for an Amicus

[74] Given that I would set aside the order appointing an amicus, the Attorney General’s appeal from the order that the government pay the fees and disbursements of the amicus is moot. However, as the matter has been fully argued, and may arise in the future, I will address the issue.

[75] It is a fundamental principle of Canadian constitutional law that government funds cannot be expended unless authorized by Parliament, or, in the case of provincial funds, by the Provincial Legislature. The principle is discussed and affirmed in Auckland Harbour Board v. The King (1923), [1924] A.C. 318 (P.C.). While there are numerous statutory provisions at both the federal and provincial levels embodying this principle, the most important, for the purposes of British Columbia, are: ss. 53, 54, and 90 of the Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3, reprinted in R.S.C. 1985, App. II, No 5; s. 10 of the schedule to the British Columbia Terms of Union, reprinted in R.S.C. 1985, App. II, No. 10; s. 47 of the Constitution Act, R.S.B.C. 1996, c. 66; and s. 21 of the Financial Administration Act, R.S.B.C. 1996, c. 138.

[76] The judge appears to have been of the view that by resorting to the parens patriae jurisdiction, he could circumvent this constitutional precept. He was wrong in that regard. As I have indicated, the parens patriae jurisdiction, being derived from the royal prerogative, cannot override constitutional or statutory provisions.

[77] This does not mean, however, that a court can never make an order for the expenditure of government funds in the absence of legislation authorizing the expenditure. In a limited class of cases, the expenditure of public money may be necessary in order to meet constitutional obligations. In such cases, courts may order the constitutional obligations to be fulfilled through the expenditure of public funds that have not been appropriated for that purpose by a legislature.

[78] In New Brunswick (Minister of Health and Community Services) v. G.(J.), [1999] 3 S.C.R. 46, the appellant was seeking state-funded counsel to represent her at a hearing where the Minister of Health and Community Services sought to extend its custody order over her children. The Court found that the hearing had implications for the appellant’s rights under s. 7 of the Charter. Chief Justice Lamer, speaking for a majority of the Court, said:

[101] There are only two possible remedies a judge can order under s. 24(1) to avoid a prospective s. 7 breach in circumstances where the absence of counsel for one of the parties would result in an unfair hearing: an order that the government provide the unrepresented party with state-funded counsel, or a stay of proceedings. A stay of proceedings is clearly inappropriate in this case, as it would result in the return of the children to the appellant’s custody. Children should not be returned to their parent’s care when there is reason to suspect that they are in need of protection. Indeed, this would run contrary to the purposes of Part IV of the Family Services Act. The government must, therefore, provide the appellant with state-funded counsel.

[79] It is important to recognize how limited this power is. An order for the expenditure of public funds that have not been legislatively appropriated will be made only where no other remedy is practically available to the court. Thus, in criminal prosecutions, courts will not ordinarily order the expenditure of public funds to provide counsel where a constitutional violation can be avoided by staying the proceedings instead. In Criminal Lawyers’ Association, the majority acknowledged that in some cases, a stay will be the appropriate remedy:

[76] In the final analysis, if the assistance of an amicus is truly essential and the matter cannot be amicably resolved between the amicus and the Attorney General, the judge’s only recourse may be to exercise her inherent jurisdiction to impose a stay until the amicus can be found. If the trial cannot proceed, the court can give reasons for the stay, so that the responsibility for the delay is clear.

See also R. v. Rowbotham (1988), 41 C.C.C. (3d) 1 (Ont. C.A.).

[80] Nonetheless, there will be cases in which constitutional principles are engaged, and where the expenditure of unappropriated public funds is the only practical solution to avoiding a violation of other constitutional principles.

[81] Judicial independence is a principle that is constitutionally protected: Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island; Reference re Independence and Impartiality of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3 at paras. 83-109. It encompasses three separate requirements: security of tenure, financial security for the judiciary, and administrative independence for the courts: Valente v. The Queen, [1985] 2 S.C.R. 673.

[82] The requirement of administrative independence includes the idea that courts must be allocated sufficient financial resources to perform their duties. In limited circumstances, those resources may include the provision of counsel to act as amicus curiae.

[83] The Supreme Court of Canada has previously recognized that in the context of funding amici, the constitutional requirement of the administrative independence of the judiciary may come into play. While discussing the limits on the court’s inherent jurisdiction in Criminal Lawyers’ Association, the majority said:

[41] The proper constitutional role of s. 96 courts does not permit judges to use their inherent jurisdiction to enter the field of political matters such as the allocation of public funds, absent a Charter challenge or concern for judicial independence. [Emphasis added.]

[84] Justice Karakatsanis indicated that where it is necessary to ensure the independence of the judiciary, as the constitution demands, the courts might exercise their inherent jurisdiction in a manner that requires the allocation of public funds in a particular way. She also noted, at para. 65, that the Attorney General “has the obligation to pay what is constitutionally adequate to serve the needs of the courts.”

[85] Recognizing how extraordinary it is for a court to order the expenditure of public funds that have not been legislatively appropriated, however, courts must exercise considerable restraint before doing so. Accordingly, orders requiring government funding of amicus can be made only in cases where the participation of an amicus is “essential to the judge discharging [his or] her judicial functions” [Emphasis added]: Criminal Lawyers Association at para. 47. Only if that requirement is satisfied will an order be justifiable as one made to maintain the constitutionally mandated independence of the judiciary. Orders for government funding should not be made in cases where the appointment of an amicus is merely a convenience.

[86] In the case before us, the judge did not conduct analysis that would show the appointment of an amicus to be a necessity. His reasons fall far short of justifying the extraordinary funding order that was made. Accordingly, it was an error to require the Attorney General to fund the amicus.

Conclusion

[87] The court below made no error in its interpretation and application of s. 203 of the Family Law Act. I would therefore dismiss S.’s appeal from the order denying her request to have counsel appointed to act for her.

[88] I am also not persuaded that the court below made any error in refusing S. full party status in the litigation. It made adequate provisions to ensure that S.’s voice was heard, and that her views could be taken into consideration.

[89] The court below did err in appointing an amicus in this case, both by invoking the parens patriae jurisdiction and by making an order that the Attorney General pay for the amicus. Although, in specific and extraordinary circumstances, a court may appoint, and even order that public funds be used to pay for an amicus, this case was not one in which such circumstances were shown to exist. Therefore, I would allow S.’s appeal in part, to the extent of setting aside the order appointing an amicus.

[90] In the circumstances of this appeal, it is appropriate that each party bear their own costs.

“The Honourable Mr. Justice Groberman”

I AGREE:

“The Honourable Madam Justice Stromberg-Stein”

I AGREE:

“The Honourable Mr. Justice Savage”