Should Your Kids Get Their Own Lawyer? A BC Judge Just Said No

When does your child need a lawyer?

Almost every high conflict parenting file reaches the moment where one parent finally says it out loud. The children need their own lawyer.

It sounds fair, it sounds child focused, and in some cases it really is the right thing to ask for. But a decision released this month by the BC Supreme Court shows why that request can fail, and the reasoning behind it is worth reading twice.

In A.D.M. v. D.L.M., 2026 BCSC 1500, Justice Schultes dismissed the application and turned the usual assumption upside down. Giving these children a lawyer, he found, would not have given them a voice. Borrowing his own words from an earlier decision, it would only have handed them a megaphone.

What the mother was asking for

The parents separated in 2016, and they have two daughters who were 13 and 11 by the time of this hearing. A consent order in 2017, along with two changes to it in 2020, set up equal parenting time that rotated the girls between homes on set days over a two week period.

It never worked. The court file is close to a decade of conflict.

By 2026 the children were refusing to spend time with their father, so their mother applied under section 203 of the Family Law Act to have a lawyer appointed to represent them. Her position was that the relationship between the parents had broken down so badly that the girls needed their own voice in the case.

The father, who argued the entire application himself without counsel, saw it very differently. He said the mother was solely responsible for the children's reluctance to see him, and that putting a lawyer in place would only amplify the point of view she had already ingrained in them.

The legal test the judge had to apply

Section 203 sets a two part test. A judge may appoint a lawyer for a child only where both of these are met:

• the degree of conflict between the parties is so severe that it significantly impairs their capacity to act in the child's best interests, and

• the appointment is necessary to protect the best interests of the child

Both branches must be met, which means that severe conflict on its own is never enough. That is the part most parents miss when the idea first comes up. The section also allows the court to divide the lawyer's fees between the parties, or to require one party alone to pay them.

Why the application was dismissed

Justice Schultes accepted that the conflict in this family was intense. He was the case management judge and had watched this file up close for more than a year. To decide the application he drew on reasoning he had written earlier this year in a similar case, B.K.N. v. H.S.N., 2026 BCSC 1378. In that case he was not convinced that a high degree of conflict was actually impairing the parents' ability to act in their children's best interests, because each parent was pursuing those interests as they understood them. That reasoning, he said, applied equally well here.

Then came the observation that decided the application.

Nobody in that courtroom was confused about what the children wanted. Their position was already coming through loudly in their own conduct, their mother supported it openly, and their views had been captured in an expert report. There was no real danger of anyone missing the message.

The live question in the case was a different one. Where had those views come from?

A lawyer appointed for the girls could not answer that question, because counsel instructed to advocate a child's stated position is not there to test where that position came from. The whole case turned on whether that stated position was truly the children's own.

In B.K.N. he had put it this way. Section 203, he explained there, envisions a situation in which the relationship between the parents is so dysfunctional that the children need an independent voice to make known a position that is otherwise in danger of being drowned out by the conflict. It is not designed for the family where the children's position is already the loudest thing in the room.

The judge who went the other way

This is where the decision becomes useful for anyone choosing a lawyer.

The mother's counsel relied on S.T.C. v. D.J.B., 2021 BCSC 1987, a case where Justice Mayer, then a member of this same court, did appoint a lawyer for the children. He made that order even though one parent argued that the children had been unduly influenced, and that anything they told a lawyer would therefore be tainted.

Justice Mayer gave greater weight to the value of children's views being heard, relying on Article 12 of the United Nations Convention on the Rights of the Child, and on B.J.G. v. D.L.G., 2010 YKSC 44, which said that legal representation can be one of the best ways to make a child's right to take part real.

Two judges of the same court, applying the same provision, reaching opposite results.

Justice Schultes did not suggest his colleague was wrong. He explained the distinction instead. Justice Mayer had not been faced with specific evidence showing an alignment between the children's views and one parent's position, combined with a strong likelihood that appointing counsel would unbalance the proceeding. That distinguishing evidence, he wrote, relieved him of any obligation of horizontal stare decisis with respect to the earlier conclusion.

This is the everyday reality of family litigation. Two capable judges can read the same words and land in different places, and the evidence in front of them is usually what moves the outcome.

Losing the application, then getting something bigger

The mother lost her section 203 application, but the decision did not end there.

Justice Schultes ordered a full section 211 report on his own motion, which no party had asked for. Judges have the power to do this, and the bar is fairly low. The question is simply whether the court needs expert evidence to make findings about the children.

He directed the report to address the needs of the girls, the views of the girls, and the ability and willingness of each parent to satisfy those needs. Then he added an instruction that tells you everything about this file. The report must also consider the origins of, and the remedy for, the children's current aversion to their father.

Each parent must propose up to three report writers by August 31, supported by a CV, a timeline, and an estimated cost. The parties share the funding equally for now, with liberty to seek a different split at the five day trial scheduled for January 2027. Because success on the application was evenly divided, costs were ordered to be in the cause.

What this means if you are living through it

Several practical lessons come out of this judgment.

Severe conflict is not a magic key. You have to show that the conflict is truly impairing both parents' capacity to serve the children, and separately that the appointment is necessary. Two hurdles, not one.

Know what the remedy actually does. A children's lawyer instructed to advocate puts a position forward, while a section 211 report investigates where that position came from. If your real question is why your children feel this way, you want the investigation rather than the advocacy.

A dismissed application can still advance your file. This mother did not get the order she came for, but she did receive a court ordered expert assessment, along with the passport and financial disclosure orders granted at the conclusion of the hearing.

Case law is not a vending machine. Handing a judge a decision with a good outcome does very little on its own. You have to show why your evidence looks like that case, and opposing counsel will work just as hard to show why it does not.

If your parenting file has reached the stage where the children are refusing time, or where somebody is raising the possibility of a lawyer for the kids, the choices you make over the next few months will shape your trial. Getting proper advice now is much cheaper than fixing things later.