Litigation Guardian not required in Provincial Court FRA Applications

In the case of Smythe v. Bourgeois BCSC 1847, on an appeal from a decision of the Provincial Court, the Supreme Court of British Columbia found that a minor making an application under the Family Relations Act (the “FRA”) did not require a litigation guardian to pursue such an application.

This case dealt with a 17 year old mother who was applying for custody of her two year old son in BC Provincial Court. The Provincial Court Judge found that it was not the proper forum in which to hear the matter as the applicant mother did not have a litigation guardian or guardian ad litem appointed for her. The Judge further found that the Provincial Court did not have jurisdiction to appoint a litigation guardian for the mother.

The mother appealed and the Honourable Justice Blair of the Supreme Court of British Columbia found that the earlier judge had erred and that there was nothing in the FRA that required a minor party making an application to be represented by a litigation guardian. Justice Blair went on to find that the Provincial Court did have the jurisdiction to appoint a litigation guardian if necessary.

The BC Supreme Court case can be found at Smythe (Guardian ad litem of) v. Bourgeois: http://www.courts.gov.bc.ca/jdb-txt/SC/08/18/2008BCSC1847.htm