Jennifer Shaften, Q.C. was appointed as amicus on an enforcement of time with child application in the Provincial Court of Alberta.

Counsel for the Respondent parent made an application mid Trial seeking the Court’s direction on how she should carry out her role as amicus. Assistant Chief Judge Cornfield heard submissions and delivered an oral Judgment from the bench. The decision has been reduced to writing to provide direction on the role of amicus.

ACJ Cornfield opined “In my view, what is being attempted here is the mother trying to direct the role of the amicus. He then considered the modern role of amicus. In the decision DM v. JR, 2020 AB 184 , ACJ Cornfield relies on the decision of Associate Chief Miller from Romaniuk v. Alberta, 1988 CanLII 3451 (AB QB), paragraphs 41 (a) through (e) and the decision of Justice Yamauchi in GG v. JTG, 2013 ABQB 726, paragraphs 33 and 24 to conclude that: “…parties could not direct the amicus on how to proceed. GG, in my view, also shows that they are to be independent and are given leeway to do their jobs as they see fit.” And declined to interfere with how Ms. Shaften was doing her job. (paragraph 20)

Of note, ACJ Cornfield then turned to alternative methods for hearing the voice of a child, including (1) judicial interview; (2) the appointment of an independent expert able to ascertain the child’s views; and (3) the appointment of independent legal counsel for the child.

On Judicial Interview he cited the criteria established by Justice Martinson of the British Columbia Supreme Court:

1. “A Judge, at Trial has the jurisdiction to interview a child in private, even in the absence of the consent of one or both parents. The judge must, on a case by case basis, decide whether such an interview in the Judge could interview the child in private, with or without counsel, and must decide on a case by case basis whether such an interview is in the best interests of the child in question.

2. In exercising this discretion, the judge can consider the general purposes of such an interview and the general benefits of and concerns relating to the judge interview process. In addition, the judge can consider case specific factors by looking at:

  • The relevance of the information that would be obtained to the issues that have to be decided;
  • The reliability of the information that might be obtained; and
  • The necessity of conducting the interview rather than obtaining the information in another way. Other options might include evidence presented: (i) By the parties informed of expert evidence or no expert evidence; (ii) By a neutral third party expert; (iii) By a lawyer, acting as a lawyer for the child, an amicus curiae (friend of the court), or a family advocate.

3. While a parent cannot simply veto an interview, a parent’s specific reasons for withholding consent may be important to a determination of relevance, reliability and necessity.

In cases involving parental alienation, it may be appropriate for a judge to see the children privately with a view to having them articulate their wishes.”

This decision will be of interest to parents, parents' counsel and counsel for children in the area of family law and child protection law.

The three lawyers at Foster LLP who represent children in family law matters and child protection matters are Rupert Joshi, Jennifer Shaften, Q.C., and Sasha Joshi.