The best interest of the child is not only for custodial rights — it is also for counselling rights. Sometimes the parents are not in the best position to deal with what is right for the children, so an attorney is appointed to the children on discretion.

Puszczak v Puszczak, 2005 ABCA 426

Puszczak is the starting point for the court when trying to decide whether a child of the marriage needs their own counsel. It outlines that when parties are not adequate in representing the children's needs or interests, the best interest of the child principle will employ the courts to appoint representation for the child. Categories where appointments should be made include:

When children are a victim of abuse;
When the children are being controlled;
When there is a significant lack of legal representation from the parties;
When the parties are inadequate in representing the best interest of the children.

Puszczak then says "Consideration is given to whether the appointment is necessary or desirable in the circumstances" (para 17).

D.C.E. v D.E., 2021 ABQB 909

D.C.E. v D.E. noticed that over the years, child counsel applications have been increasing, and that they were getting rejected because the "considerations guiding the Court's exercise of discretion can be opaque" (para 19). The Court must be satisfied that the child has attained an "age and degree of maturity" such that the child's views should be considered.

The Court adjusted the best interest principle for counselling to look at the capacity for autonomy of the child, and determine whether that autonomy is best for them. A 10-year-old might prefer to stay at dad's because he gives them candy and an iPad, but that may not be the healthiest environment.

D.C.E. v D.E. lists factors to help courts decide on age and maturity:

The nature and complexity of the issue for which the child's input is sought;
Whether the child has expressed an interest in offering a viewpoint;
Whether the child is primarily being asked to provide facts rather than engage in higher reasoning;
Whether the child's decision-making might be compromised by their relationship with a party (emotional attachment, dependency, estrangement, or undue influence);
Whether the child can gather relevant information and weigh competing benefits and disadvantages;
Whether the child reasonably appreciates the consequences of expressing a viewpoint;
Whether the child has made good decisions of a substantial nature in other situations;
The child's performance and behaviour in school;
Assessments by professionals such as psychologists, counsellors, physicians and teachers; and
Parental observations about the child's behaviour and decision-making ability.

The D.C.E. Framework (para 41)

A child capable of forming views is entitled to express those views freely, with weight given according to age and maturity;
The issues raised by the parties and potentially affecting the child should be identified;
The Court must determine whether the child has attained an age and degree of maturity such that their views should be considered;
The specific purpose of the appointment and how the child will participate should be explained, identifying the proposed role of independent counsel;
The nature of the information to be collected from the child should be identified (facts, evidence, opinion, preference, or choice);
The Court may explore whether counsel for the child is necessary or desirable, rather than relying on another means to hear from the child; and
The Court may take into account countervailing factors such as the negative impact of involving the child in litigation, the parties' ability to pay, the likely probative value of the child's information, or abuse of process.

Conclusion

There are still large discretionary powers the court has when appointing independent counsel for children. What this framework does is make those discretionary powers readily available, consistent, and appropriate. As case law develops, so do the protections that children have in the courts.

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