Ontario Family Law: Court of Appeal Rules Superior Court Judges May Request, But Not Order, Children's Lawyer Involvement

In a fascinating ruling released Thursday, the Ontario Court of Appeal held that Ontario Superior Court Justice Victor Paisley erred in ordering, rather than requesting, that the Office of the Children's Lawyer (OCL) investigate and report back to the court with its findings as to the best interests of children in six Ontario family law custody cases.

By way of background, the OCL's role in Ontario family law proceedings is described at its website:

The Office of the Children's Lawyer is a law office in the Ministry of the Attorney General which delivers programs in the administration of justice on behalf of children under the age of 18 with respect to their personal and property rights. Lawyers within the office represent children in various areas of law including child custody and access disputes, child protection proceedings, estate matters and civil litigation. Clinical investigators prepare reports for the court in custody/access proceedings and may assist lawyers who are representing children in such matters.

In this wide ranging decision, the appellate court considered the breadth of the Superior Court's inherent parens patriae jurisdiction and the ramifications of Canada's role as a signatory to the UN Convention on the Rights of the Child - all against a backdrop of the OCL's enormous, current caseload.

The predicament of the OCL, already under-resourced and having difficulty responding to an existing avalanche of requests for its services by Ontario's provincial and federal family law judges, was summarized by Madame Justice Karen Weiler, writing for the Court:

[4] The OCL submits that the Superior Court judge who made the six orders from which appeal is taken exceeded his jurisdiction and erred in invoking the parens patriae jurisdiction of the Superior Court. The Superior Court judge ought to have requested a legal representative pursuant to s. 89(3.1) or a social work report from the OCL pursuant to s. 112 of the CJA and, if that request was refused, asked the OCL to reconsider its refusal or to consider other alternatives. The OCL’s position is further that the Superior Court judge could only invoke the court’s parens patriae jurisdiction to fill a legislative gap which, the OCL submits, does not exist in light of ss. 89(3.1) and 112 of the CJA. Thus, the judge could not order the OCL to act.

[5] Even if the court had the power to exercise its parens patriae jurisdiction, the OCL submits that that jurisdiction ought not to be exercised as, to do so, would open the “floodgates” and the OCL would be unable to function properly. At the oral hearing before us, the OCL sought leave to introduce fresh evidence in the form of an affidavit by Ms. Denal Moyal, the Legal Director of the Personal Rights Department and acting Children’s Lawyer at the time. The intervener, Justice for Children and Youth (JFCY) consented to the affidavit being filed as fresh evidence. In her affidavit, Ms. Moyal deposed that between April 1, 2009 and August 25, 2010, the OCL received 5,548 referrals from judges across Ontario. Of those, 1,873 were from the Ontario Court of Justice and 3,673 were from the Ontario Superior Court of Justice. Five hundred and eighty-two of the 5,548 referrals came from judges sitting in Northern Ontario. Sixty-eight per cent of these orders were made by Ontario Court of Justice judges. During this same period, the OCL accepted a total of 3,432 cases across Ontario. Based on this affidavit, the thrust of the OCL’s argument appears to be that if Superior Court judges do have parens patriae jurisdiction and exercise it in the manner the Superior Court judge has done in these cases, the OCL would be ordered to act in so many cases that it would no longer be able to meet the requests made by Ontario Court of Justice judges, (who do not have parens patriae jurisdiction) particularly those in Northern Ontario.

Madame Justice Weiler summarized the Court's findings:

[79] These appeals did not require the court to engage in a theoretical discussion about whether the Superior Court’s parens patriae power could be used to order the OCL to act. Assuming, without deciding, that Superior Court judges can, in the appropriate circumstances, exercise their parens patriae jurisdiction to order the OCL to act, that jurisdiction ought not to have been exercised in these six appeals. The Superior Court judge ought to have respected the structure of ss. 89 (3.1) and 112 in the CJA, which give the OCL discretion in considering requests for their involvement. He ought not to have circumvented the existing statutory structure for engaging the OCL. Prior to exercising his parens patriae jurisdiction to make an order, it was incumbent on the Superior Court judge to consider and avail himself of the other available avenues for assistance that were responsive to the specific factual problems before him.

Accordingly, I would allow the appeals in the manner indicated.

See the Court's decision: Bhajan v. Bhajan, 2010 ONCA 714 (CanLII)

At root, this ruling casts a spotlight on but one of the many crunches on access to justice now occurring in Ontario's adversarial system of adjudicating family law disputes.

Privately-conducted assessments of children's best interests, typically performed by clinical psychologists, psychiatrists or social workers and often costing $10,000.00 to $15,000.00 or more, are simply unaffordable to most Ontarians.

Nonetheless, family law judges often require such objective, professional input when determining child custody and access disputes. The OCL has long operated as a next-best substitute for such private assessments. In an era of fiscal restraint, however, it simply cannot keep up with the demand. In such a climate, the OCL - institutionally - must have some means of conducting triage. This is a practical reality.

Can one reasonably conclude, however, that the OCL, relying largely on self-serving "Intake Forms" prepared by parents and counsel, is better equipped than judges to operate as preliminary gatekeeper for its services? In fairness, that is where the legislation points.

The Court of Appeal's ruling confirms what family law practitioners in the Province have long known. Our system leaves a vacuum that limits the availability of clinical input in some child custody disputes, even where judges find that it is required, based on the evidence before them .

Could a directional shift toward mandatory family law mediation in Ontario, as recently advocated by Ontario's Chief Justice, Warren Winker, be at least a part of a solution?

Perhaps.

Mandatory family law mediation, with its laudible focus on conflict de-escalation from the outset, may ultimately prove to be the most effective "triage" mechanism of all.

It is worth a try.

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

TORONTO EMPLOYMENT LAW • TORONTO CIVIL LITIGATION & ESTATE LITIGATION • TORONTO FAMILY LAW & DIVORCE

ORIGINALLY POSTED AT WISE LAW BLOG • SUBSCRIBE TO WISE LAW BLOG