Township of Greater Madawaska INTEGRITY COMMISSIONER, Guy Giorno

Citation: Gillette v. Giffin, 2021 ONMIC 32 Date: October 25, 2021

Reasons for Decision

Notice: Municipal Integrity Commissioners provide investigation reports to their respective municipal council and, in most cases, make recommendations for imposition of penalty or other remedial action to the municipal Council. Therefore, reference should be made to the minutes of each particular municipal council to obtain information about the particular council's consideration of each report. When possible, a link to the relevant municipal council minutes is provided.

Please find below the link to the corresponding council decision.

No council decision. Because this is an inquiry under the Municipal Council of Interest Act, the Integrity Commissioner’s decision is not required to be filed with the municipal council.

TABLE OF CONTENTS

Context 3 The Application.. 3 Decision.. 3 Background. 4 Process Followed. 4 Positions of the Parties. 6 Applicant’s Position.. 6 Respondent’s Position.. 6 Applicant’s Reply. 9 Findings of Fact 9 Issues and Analysis. 11 A. Did C have a pecuniary interest in the minor variance application and was the Respondent aware?. 11 B. Is C a “child” of the Respondent as defined in the MCIA?. 12 C. Did the Respondent have a deemed pecuniary interest under section 3 of the MCIA? 17 D. Should I make an application to a judge?. 18 Decision.. 18 Publication. 18

Context

1Among their responsibilities, municipal Integrity Commissioners in Ontario conduct inquiries into applications alleging that council members or members of local boards have contravened the Municipal Council of Interest Act. At the end of such an inquiry, the Integrity Commissioner shall decide whether to apply to a judge under section 8 of the Municipal Conflict of Interest Act for a determination as to whether the member has contravened section 5, 5.1 or 5.2 of that Act, and shall publish reasons for the decision. Such decision is not subject to approval of the municipal council and does not take the form of a recommendation to council. There is, therefore, no municipal council resolution necessary to give effect to the decision.

The Application

2Section 223.4.1 of the Municipal Act allows an elector or a person demonstrably acting in the public interest to apply in writing to the Integrity Commissioner for an inquiry concerning an alleged contravention of section 5, 5.1 or 5.2 of the Municipal Conflict of Interest Act (MCIA) by a member of council or a member of a local board.

3Allan Gillette (the Applicant) alleges that Committee of Adjustment Chair Debora Giffin (the Respondent) contravened sections 5, 5.1, and 5.2 of the MCIA by failing to declare a pecuniary interest in relation to a matter, and failing to withdraw from participation in discussion and from voting on the matter, at the June 16, 2021, meeting of the Committee.

4The Application was made and received July 19. I assigned it File No. 2021-01-MCIA.

Decision

5Subsection 223.4.1 (15) of the Municipal Act states that, upon completion of an inquiry, the Integrity Commissioner may, if the Integrity Commissioner considers it appropriate, apply to a judge under section 8 of the MCIA for a determination whether the member has contravened section 5, 5.1, or 5.2 of that Act.

6After considering all the evidence and the submissions of the parties, I have decided that I will not apply to a judge for a determination whether Ms Giffin has contravened the MCIA.

7Subsection 223.4.1 (17) of the Municipal Act requires me to publish written reasons for my decision. These are my reasons.

8I wish to clarify that this inquiry only considered an allegation under the Municipal Conflict of Interest Act. This was not a review of the process followed by the Committee of Adjustment or of the decision made by the Committee. These concerns are outside the jurisdiction of an Integrity Commissioner.

9For example, as Integrity Commissioner, I do not have jurisdiction to review whether the Committee of Adjustment treated one application for a minor variance in a manner consistent with the treatment of other applications. I do not have jurisdiction to review the Township’s and the Committee’s handling of information contained in prior application files. I do not have jurisdiction to oversee the procedure followed by the Committee of Adjustment, including the order in which Committee members voted. I am aware of the concerns about these matters, but they were not the subject of this inquiry.

10(An Integrity Commissioner may also inquire into a complaint that alleges a breach of the Council Code of Conduct, which applies to members of the Committee of Adjustment. However, decisions made by the Committee of Adjustment, and procedures followed by the Committee, are not subject to Integrity Commissioner oversight under the Code.)

11I do not have jurisdiction to consider whether the staff report presented to the Committee of Adjustment contained inaccuracies. In fact, as Integrity Commissioner, I do not have any jurisdiction over the staff or staff reports.

Background

12This inquiry relates to a minor variance application considered by the Committee of Adjustment on June 16. The Committee rejected the application, in a 3-2 vote.

13The property owners who applied for the minor variance were represented at the Committee meeting by their agent, whom I will refer to as C.

14Mr. Gillette, the Applicant in this proceeding, alleges that C was a “child” of the Respondent as defined in the Municipal Conflict of Interest Act.

15The Respondent did not declare a pecuniary interest on June 16. The Respondent participated in decision making and voting on the minor variance application.

Process Followed

16The Municipal Act does not direct the procedure that an Integrity Commissioner must follow in handling MCIA applications. I have chosen to follow a process that ensures fairness to both the individual making the application (Applicant) and the Committee member alleged to have contravened the MCIA (Respondent).

17This fair and balanced process begins with me issuing to both parties a Notice of Inquiry that sets out the issues. The Notice of Inquiry includes a copy of the Application for an MCIA Inquiry. The Respondent is made aware of the Applicant’s name. I do, however, redact personal information such as phone numbers and email addresses.

18The Respondent has an opportunity to respond. The Applicant receives the Respondent’s Response and is given an opportunity to reply. I may accept supplementary communications and submissions from the parties, generally on the condition that parties get to see each other’s communications with me. I do this in the interest of transparency and fairness.

19I typically set deadlines for the submission of a Response and a Reply, but give reasonable extensions when requested.

20In the Notice of Inquiry, I informed the parties that I would be considering sections 5 and 5.1 of the MCIA. I determined that section 5.2 of the MCIA was not applicable. (Section 5.2 deals with attempting to influence a decision on a matter in which one has a pecuniary interest. The only attempted influence alleged by the Application was influence on other members of the Committee of Adjustment that resulted from the Respondent being the first to vote. I do not believe that casting the first vote constitutes using office “in any way to attempt to influence” under section 5.2 of the MCIA.)

21The Notice of Inquiry identified the following four issues: Is C a “child” of the Respondent as defined in the MCIA? Did C have a pecuniary interest in the minor variance application? If so, did the Respondent have a deemed pecuniary interest under section 3 of the MCIA? If so, did the Respondent disclose the interest and take the steps required by sections 5 and 5.1 of the MCIA?

22After reviewing the Application, the Respondent’s Response, and the Applicant’s Reply, I conducted interviews of the Applicant, the Respondent, and several witnesses, including C and C’s father. I also reviewed documentary evidence. I also reviewed and considered relevant jurisprudence.

23The Respondent suggested that I might want to contact the other Committee of Adjustment members to ask them the basis on which they made their decisions. I did not do so, because this inquiry is not about the Committee’s decision. An Integrity Commissioner has no authority to supervise decision making by a committee. Further, the basis on which the Committee made its decision is not relevant to whether a declaration of pecuniary interest under the MCIA should have been made.

24In making my decision, I have taken into account all the submissions of the parties and all of the evidence obtained during the inquiry.

Positions of the Parties

Applicant’s Position

25The Applicant submits that C (the agent of the property owners seeking the minor variance) was the Respondent’s stepchild. According to the Applicant, the Respondent was married to C’s father. According to the Applicant, the Respondent, her then-spouse, and C, all lived together in the same home when C was a minor.

26According to the Applicant, C is a “child” of the Respondent according to the definition in section 1 of the MCIA:

“child” means a child born within or outside marriage and includes an adopted child and a person whom a parent has demonstrated a settled intention to treat as a child of his or her family

27The Applicant alleges that C had a financial interest in the minor variance application and, consequently, the Respondent also had a pecuniary interest. According to section 3 of the MCIA:

For the purposes of this Act, the pecuniary interest, direct or indirect, of … any child of the member shall, if known to the member, be deemed to be also the pecuniary interest of the member.

28The Application also contains criticisms of the manner in which the Committee of Adjustment conducted the meeting and of the Committee’s decision on the minor variance application. The criticisms fall outside an Integrity Commissioner’s jurisdiction and I have not considered them in this inquiry.

Respondent’s Position

29The Respondent sent me a 14-page Response, plus four attachments. I have read and considered the entire Response and all the attachments. What follows is only a summary of the Respondent’s position; it is not exhaustive. I have taken into account all of the Respondent’s submissions, whether or not they are reflected below.

30The Respondent is a volunteer. She has lived in Greater Madawaska for 44 years and during that time has volunteered extensively.

31For approximately 15 years the Respondent has served on the Committee of Adjustment. At present she is the Chair. She states that Committee members “receive a nominal amount of compensation which the Township considers as an offset to our travel costs in visiting each site.”

32According to the Respondent, Committee members have received professional training on municipal planning, but not on conflict of interest. The Respondent points out that she has responded to this inquiry without any assistance, and suggests that the Township might provide support to its volunteers.

33Her Response traces the history of the staff support provided to the Committee of Adjustment. Originally the Deputy Clerk was the Secretary-Treasurer of the Committee, and professional advice was provided by the County’s planner. Subsequently the Township hired a part-time planner, and then a full-time planner. At present the Township employs both a full-time planner and an assistant to the planner.

34The Respondent notes that at no time has any professional staff member supporting the Committee commented on or expressed concern about her conduct as Chair or her ability to consider and judge each application in an unbiased and fair manner.

35The Respondent explains that she is a diligent and conscientious member of the Committee of Adjustment who spends many hours researching, reading, and gathering facts and general knowledge for every application. Her practice is to visit each property prior to the meeting, and to take photos for each of reference during the meeting.

36She states that she does not ever make decisions lightly. Leading up the June 16 meeting she did substantial reading and research to consider various aspects of the applications that would be before the Committee.

37According to the Respondent, she and C’s father separated in 2005 and they have not interacted since then. She does not receive financial support from C’s father, and she does not interact with C.

38When I interviewed her, Respondent disagreed that C lived in the same house as her. In the Response, she stated that, if the Applicant’s assertion (the C lived there as a minor) is correct, then for at least 30 years C “has been independent of so claimed influence or conflict created by living in my home.”

39The Respondent is unable to state whether C had a pecuniary interest in the minor variance application, but adds, “Throughout the Committee meeting he presented himself as [the property owners’] builder so I would have to presume that he would have pecuniary interest.”

40The Respondent has no financial interest in C’s home building company or construction company.

41To the Respondent’s knowledge, her spouse (separated from her since 2005), also has no financial interest in C’s home building company or construction company.

42The Respondent states that she had no pecuniary interest to declare.

43The Respondent maintains that in voting not to approve the minor variance application she based her decision on the merits and was not in a conflict of interest.

44As context, the Respondent explains that C had previously appeared before the Committee, as agent of the owners of a different property, on March 16. The Respondent states that prior to the March 16 meeting she sought advice from the Township planner about whether C’s participation would require the Respondent to declare a conflict, given that she had previously been married to C’s father, though separated since 2005. The Respondent’s recollection continues, as follows:

His [the Township planner’s] response was very unconcerned, casual and non-committal. He advised he didn’t think that C was even going to be at the meeting. We concluded that I would chair the meeting and participate. Moments before the meeting was to start, C, agent, entered the building. I re-asked the planner before commencing the meeting and he shrugged it off. I did not feel there was any reason to step down and that I could hear and judge the application [owners’ names removed] in a fair and unbiased manner. There was no objection from agent C with my role as Committee member or Chair.¹

45The Respondent observes that her past relationship with C’s father is well known to many, including the Township planner (Secretary-Treasurer of the Committee of Adjustment), the property owners applying for the minor variance at the June 16 meeting, the Mayor of the Township and, of course, C. She states: “None suggested that I step aside. I would have done so but ONLY after receiving a proper argument for why I should.”

46A large portion of the Response addressed the Applicant’s criticisms of the fairness of the Committee’s process and of its decision on the merits. As I explain at paragraph 28, above, those criticisms lie outside an Integrity Commissioner’s jurisdiction and I have not taken them into account. Consequently, it is unnecessary for the Respondent to defend the Committee’s decision and the process by which it reached the decision.

47The Respondent defends the merits of the decision to deny the application, not just to respond to the Applicant’s criticism, but also to establish that she was not motivated by any past relationship with C or C’s father. Her position at the June 16 meeting was based on a very detailed application of the standard four-part test for Committee of Adjustment decisions; in her view, this minor variance application did not satisfy the four criteria. In the words of the Respondent’s explanation to me:

My justification that the [property owners] variance was not minor and should be refused did not come from any long past family relationship with the agent. It was based on the County Official Plan and current day standards and policies. It was the majority of the Committee that refused the application.

48The Respondent states that, at the end of the June 16 meeting, she told the property owners that she regretted having to refuse their application but felt the decision was well justified and substantiated.

Applicant’s Reply

49In reply, the Applicant observes that, in its definition of “child,” the MCIA “does not state there is an expiration date.”

50The Applicant notes that C is a builder and clearly had a financial interest in the matter before the Committee, meaning that the Respondent has a deemed pecuniary interest.

51The Applicant also states that Respondent’s talking to the Township planner about her (previous) relationship with C was not the same as her declaring an interest at the meeting, which is what the MCIA requires.

Findings of Fact

52Findings of fact are made based on the standard of the balance of probabilities.

53Based on the documentary and evidence and the interviews with witnesses, I make the following findings.

54At the June 16 Committee of Adjustment meeting, the Respondent did not declare a pecuniary interest in the matter of the minor variance application in which C represented the property owners. She then discussed and voted on that matter.

55While C was not paid to represent the property owners before the Committee of Adjustment, through C’s home building company C had a pecuniary interest in the outcome of the minor variance application.

56The Respondent and C’s father, though still married, separated permanently around 2005.

57Neither the Respondent nor C’s father has any interest in C’s construction and home building businesses. While some financial matters between the Respondent and C’s father remain to be resolved, nothing that remains outstanding between them would give the Respondent any financial interest in the success or viability of C’s construction and home building businesses.

58The Respondent, C’s father, and C, all used to work together in C’s father’s business. That working relationship ended when the Respondent and C’s father separated.

59Except in connection with their pending divorce, the Respondent and C’s father have not had dealings with each other since their separation.

60The Respondent and C have not had dealings since the Respondent and C’s father separated.

61At the March 16 meeting of the Committee of Adjustment, the Respondent mentioned that C’s father was her separated spouse, and asked if anyone present had concerns about the Respondent continuing to hear that minor variance application. No one voiced concerns.

62The Respondent is a conscientious and diligent member of the Committee. Her decision on the June 16 application was based on her assessment on the merits of the application, and she did not consciously consider C’s role as agent of the property owners.

63The above findings are largely consistent with everyone’s recollection. On two other points, witnesses recounted different versions of what occurred.

64On the question of whether C, C’s father and the Respondent once lived together in the same family home, the recollections of C, C’s father and the Respondent differ.

65The recollection of C and C’s father is that C lived in the same house as the Respondent and C’s father from approximately age 10 until approximately age 17. Also living with them were other children of the marriage between C’s father and C’s mother, and children born to the Respondent and C’s father.

66The recollection of the Respondent is that C lived with C’s mother in another community, and only stayed at the home of the Respondent and C’s father occasionally, such as on holidays.

67I gave the Respondent an opportunity to address the recollections of C and C’s father, and she maintained they that must be mistaken. For their part, C and C’s father stand by their recollection that C and the Respondent lived in the same house, and state that if the Respondent remembers differently then she is mistaken.

68The Respondent’s statement that C never lived with her in the same home (except occasionally such as on holidays) was first made when I interviewed her. In her written Response to the Application, which was submitted before the interviews, the Respondent stated only this:

If Mr. Gillette’s statement that [C] lived in my home until he was approximately 18 is correct, that would then put the time span at 30 years that he has been independent of so claimed influence or conflict created by living in my home.

69While C’s evidence is that he lived for approximately seven years in the same home as the Respondent, C also explained that the two of them were never close. C’s recollection is that they resided under the same roof but lived their own lives, and that the Respondent did not treat C as a child of her family. Likewise, C did not view the Respondent as a step-mother, merely someone who, “was in a relationship with my father.” The Respondent never legally adopted C.

70I find, on balance of probabilities, that C’s recollection, supported by the recollection of C’s father, is most likely correct, and that C and the Respondent did for several years reside in the same home. At the same time, I find (as everyone corroborated) that C and the Respondent were never particularly close.

71The recollections of the Respondent and the Township planner also differ. The Respondent recalls the Township planner being unconcerned about a potential conflict of interest involving C. The Township planner does not have this recollection, and says that, as a municipal employee, he knows never to advise a Council member or local board member on MCIA compliance. The planner also does not recall saying that he doubted C would attend the March meeting of the Committee; on the contrary, C’s name was on the application and C was expected to attend.

72Because of my interpretation of the law, it is unnecessary for me to reconcile the different recollections of the Respondent and the planner on this point. In my view, a member is responsible for MCIA compliance regardless of what the staff advises. Consequently, it does not matter what the planner might have said to the Respondent around the time of the March meeting.

Issues and Analysis

73I have considered the following issues:

A. Did C have a pecuniary interest in the minor variance application and was the Respondent aware?

B. Is C a “child” of the Respondent as defined in the MCIA?

C. If so, did the Respondent have a deemed pecuniary interest under section 3 of the MCIA?

D. Should I make an application to a judge under section 8 of the MCIA?

A. Did C have a pecuniary interest in the minor variance application and was the Respondent aware?

74Yes, and yes.

75I have found that, through C’s home building company, C had a pecuniary interest in the minor variance application.

76The Respondent was aware that C was the property owners’ builder and, therefore, she knew, or ought to have known, of his pecuniary interest.

B. Is C a “child” of the Respondent as defined in the MCIA?

77The evidence is insufficient to establish that C is the Respondent’s “child.”

78For convenience, I repeat the definition in section 1 of the MCIA:

“child” means a child born within or outside marriage and includes an adopted child and a person whom a parent has demonstrated a settled intention to treat as a child of his or her family

79The first parts of the definition do not apply. C was not born to the Respondent and was not adopted by the Respondent. The sole question is whether C is “a person whom [the Respondent] has demonstrated a settled intention to treat as a child of his or her family.”

80I could find no conflict-of-interest jurisprudence that interprets the term, “person whom a parent has demonstrated a settled intention to treat as a child of his or her family.” However, the text must be interpreted according to what the Supreme Court of Canada has repeatedly identified as the “guiding rule of statutory interpretation”:²

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.³

81The same expression, “person whom a parent has demonstrated a settled intention to treat as a child of his or her family,” also appears in the Family Law Act.⁴ Other uses of “settled intention to treat as a child of his or her family” appear in seven additional Ontario statutes.⁵

82Most judicial precedents that interpret “settled intention to treat as a child of his or her family” are Family Law Act decisions that determine whether adults are obliged to provide financial support. In interpreting “settled intention” in the family law context, courts have repeatedly noted that, “the legislative purpose of the definition is to enact a relationship between a respondent and a child that, as a matter of public policy, is considered appropriate to ground the support obligation.”⁶

83The family law purpose of the definition is ensuring the provision of child support, and courts have uniformly held that, in the face of a settled intention to treat someone as a child, the parent cannot subsequently opt out of the responsibility.⁷ “Once a settled intention has been demonstrated, a parent cannot unilaterally terminate the relationship.”⁸ I believe that family law precedents based on the obligation to pay child support are not directly applicable to the MCIA context. (If it is the case under the MCIA that a settled intention to treat as a child cannot be terminated, that result must be reached on a different basis than family law principles.)

84Because of the family law focus on child support, it is unsurprising that, in ascertaining a settled intention to treat someone as a child, one factor considered is whether an adult has provided financially for the child and has assumed expenses.⁹

85Again, I doubt that the family law objective of determining whether an adult should pay child support is relevant to interpreting the Municipal Conflict of Interest Act. Whether an adult has provided financial support to a child does not seem to be relevant to the principles of the MCIA (discussed in more detail in paragraph 97, below). Further, excessive reliance on the financial-support factor would lead to the absurd result in which an adult who provided financially for a child is bound to declare a pecuniary interest under the MCIA, while a loving adult who was unable to provide financially for the child need not declare an interest.

86Financial contribution is not the only factor cited in the family law jurisprudence. Keeping in mind the very different purpose of the Family Law Act, I summarize below additional principles that are evident in the “settled intention” case law.

87The reason to consider various factors is to determine “whether there was a demonstration of a settled intention to treat the child as a member of the family unit.”¹⁰ The result of such a settled intention has been described as, “a clear, permanent loving relationship formed with the child while operating within a family unit.”¹¹

88Also relevant (and often cited) is a decision of the Supreme Court of Canada under the Divorce Act. According to that judgment, “The actual fact of forming a new family is a key factor in drawing an inference that the step-parent treats the child as a member of his or her family, i.e., a child of the marriage.”¹²

89Merely living under the same roof is not sufficient to establish a settled intention to treat someone as a child.¹³

90A settled intention is to be objectively determined based on conduct.¹⁴

91According to one frequently cited decision, “The word ‘settled’ … denotes quality and not duration. What is required is a state of mind consciously formed and firmly established. The brevity of the intention – or the brevity of the relationship in issue – is not, of itself, decisive, although it is one piece of evidence from which the prescribed intention may be deduced.”¹⁵

92The statute says “has demonstrated” – that is, it refers to the past. “No limitation period is stipulated.”¹⁶ The definition is retrospective, and even applies to someone who satisfied this criterion before the Act came into effect.¹⁷

93Loss of contact with a child after the marriage breaks down does not affect the determination that a parent had previously demonstrated a settled intention. “[U]nilateral termination post separation will not impact upon the issue of whether during the relationship a person demonstrated a settled intention to treat a child as a member of his family.”¹⁸

94The fact that a child rejects an adult as parent does not prevent a finding that the adult has demonstrated a settled intention to treat the child as a child of his or her family.¹⁹ In other words, “it [is] the intention of the step-parent and not of the step-child that is important.”²⁰

95At the same time, the fact that an adult child chooses to have no relationship whatsoever after the separation might be evidence that no parent-child relationship was ever established.²¹ The absence of evidence of affection or attachment is also relevant.²²

96While these family law principles are informative, they are not determinative of how the Municipal Conflict of Interest Act should be interpreted. Determining whether someone should pay child support is not the purpose of the “child” definition in section 1 of the MCIA.

97The MCIA sets out, in section 1.1, its own principles, which are relevant to interpreting and applying that statute:

The Province of Ontario endorses the following principles in relation to the duties of members of councils and of local boards under this Act:

1. The importance of integrity, independence and accountability in local government decision-making.

2. The importance of certainty in reconciling the public duties and pecuniary interests of members.

3. Members are expected to perform their duties of office with integrity and impartiality in a manner that will bear the closest scrutiny.

4. There is a benefit to municipalities and local boards when members have a broad range of knowledge and continue to be active in their own communities, whether in business, in the practice of a profession, in community associations, and otherwise.

98I note that, throughout its roughly 50-year legislative history, the MCIA has only used two formulations to capture the pecuniary interests of family members. The original language was found in subsection 2 (3) of the Municipal Conflict of Interest Act, 1972:²³

The interest of any spouse, son, daughter or any other relative of a member of a council or local board who has the same home as such member, shall if known to the member, be deemed for the purposes of this section to be also an interest of the member.

99The 1972 legislation was repealed and replaced by the Municipal Conflict of Interest Act, 1983,²⁴ which introduced the current wording:

“child” means a child born within or outside marriage and includes an adopted child and a person whom a parent has demonstrated a settled intention to treat as a child of his or her family

100Based on the legislated principles in section 1.1 of the MCIA, and the guiding rule of statutory interpretation confirmed by the Supreme Court of Canada (see paragraph 80), I make the following observations.

101First, the MCIA obligation to declare a pecuniary interest and to withdraw from decision making falls on the member. It does not matter whether someone else has flagged the issue for the member, nor does it matter whether participants in a meeting agree that the pecuniary interest does not require the member’s recusal.

102Second, the MCIA applies to the pecuniary interests of children even when they are grown: see Re Lastman, 2000 CanLII 22627 (Ont. S.C.), at para. 13. It would be inconsistent with the principles of the legislation to focus only on conflicts that arise from the pecuniary interests of children under the age of 18. Indeed, adult children are more likely than minors to have business, employment, real estate, and financial interests that could be affected by municipal decision making.

103Third, I agree that the definition of “child” is based on a past happening, not current events. The language “has demonstrated a settled intention to treat as a child of his or her family” refers to a demonstration of intention at some prior point in time, presumably when the individual was a minor. This interpretation is consistent with the application of the MCIA to the pecuniary interests of adult children.

104Fourth, I do not agree that estrangement is necessarily relevant to the obligations under section 5 and 5.1 of the MCIA. For example, in the case of a biological child or adopted child, the Act does not state that a member’s declaration obligation and recusal obligation cease to apply when the parent and child have been apart for a long period of time. The principle of “integrity and impartiality in a manner that will bear the closest scrutiny” suggests that section 5 and 5.1 apply regardless of the quality of the parent-child relationship. If this is the case, then the situation of a “settled intention” child should be no different.

105Fifth, it makes sense that subsequent interaction, or lack of interaction, is relevant evidence of whether there was ever a settled intention to create a parent-child relationship. While I am unsure whether subsequent conduct can negate a parent-child relationship, conduct can be evidence of intention.

106Sixth, where somebody once happened to live is not determinative of a parent-child relationship. The evidence might be relevant, but it is not determinative. I note that in 1983 the Legislature repealed the statutory provision that referred to a relative living in the same home as a member.

107Seventh, the Legislature has made a deliberate choice that the MCIA shall address only a limited number of family relationships. For example, the MCIA does not prevent members of municipal councils and local boards from voting on matters that affect the interests of their siblings, grandparents, and cousins. It is clear that the Legislature consciously intended to limit the scope of the circumstances that trigger the obligations of declaration and recusal.

108In my view, this deliberate legislative choice is relevant to the breadth of the “child” definition. The MCIA does not cover the pecuniary interests of a sibling or grandparent, even one who lives in the same home as the member. The Legislature has chosen a precise, narrow, circumscribed scope. Consistent the narrow precision of the legislation, it only makes sense that a genuine family connection to the member, not a connection that was tenuous or weak, is necessary to make someone a member’s child under the “settled intention” language.

109I believe that the following judicial description, while it arose in the family law context, captures the sort of genuine family connection contemplated by the “settled intention” portion of the MCIA’s “child” definition: “a clear, permanent loving relationship formed with the child while operating within a family unit.”²⁵

110Typically the burden of proof lies in the party alleging misconduct or non-compliance. Ms Giffin does not bear the onus of disproving that C is her child. While I believe it is possible that C might be considered a “child” of Ms Giffin within the meaning of the Municipal Conflict of Interest Act, and certainly there are some factors that support that conclusion, I find that the evidence is insufficient to establish, on the balance of probabilities, that C is “a person whom [the Respondent] has demonstrated a settled intention to treat as a child of his or her family.”

C. Did the Respondent have a deemed pecuniary interest under section 3 of the MCIA?

111Unless C is a “child” of the Respondent, the Respondent did not have a deemed pecuniary interest based on C’s pecuniary interest.

D. Should I make an application to a judge?

112No.

113The Municipal Act leaves this decision to the Integrity Commissioner, based on what the Integrity Commissioner feels is appropriate. Having found insufficient evidence that C is the Respondent’s “child,” I should not commence a Court application.

114Even if C were the Respondent’s “child,” I am not certain that the gravity of this matter would justify the cost to the Committee of Adjustment of applying to Court. The Legislature has seen fit, in subsection 223.4.1 (18) of the Municipal Act, to impose the cost of such an application on the local board, that is, the Committee. I believe that the transparency and accountability that have resulted from this inquiry are a sufficient outcome, and that a Court application at taxpayers’ expense would be unnecessary.

115Consequently, I do not consider it appropriate for me to apply to a judge for a determination as to whether Ms Giffin has contravened sections 5 and 5.1 of the MCIA.

Decision

116I will not apply to a judge under section 8 of the MCIA for a determination as to whether Ms Debora Giffin contravened the MCIA on June 16, 2021, when she failed to declare a pecuniary interest in the minor variance application on which C appeared as agent of the property owners.

Publication

117The Municipal Act requires that, after deciding whether or not to apply to a judge, the Integrity Commissioner shall publish written reasons for the decision. This decision will be published by providing it to the Township to make public and by posting on the free, online database as decision 2021 ONMIC 32.

118Subsection 223.5 (2.3) of the Municipal Act states that I may disclose in these written reasons such information as in my opinion is necessary. All the content of these reasons is, in my opinion, necessary.

Guy Giorno Integrity Commissioner Township of Greater Madawaska October 25, 2021

Footnotes

1. 1In quoting from documents in an MCIA decision, my practice is always to edit punctuation and capitalization for consistency and to correct immaterial typographical and textual errors. I have also replaced the agent’s name with the initial C.
2. 2Bessette v. British Columbia (Attorney General), 2019 SCC 31, [2019] 2 S.C.R. 535, at para. 54.
3. 3Ibid. See also: Canada (Attorney General) v. Thouin, 2017 SCC 46, [2017] 2 S.C.R. 184, at para. 26; Canadian Broadcasting Corp. v. SODRAC 2003 Inc., 2015 SCC 57, [2015] 3 S.C.R. 615, at para. 48; R. v. Steele, 2014 SCC 61, [2014] 3 S.C.R. 138, at para. 23; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26.
4. 4R.S.O. 1990, c. F.3, subs. 1(1).
5. 5Child Care and Early Years Act, 2014, S.O. 2014, c. 11, Sched. 1, subs. 2(1); Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1, subs. 74(1), subs. 179(1), subs. 180(1); Children’s Law Reform Act, R.S.O. 1990, c. C.12, clause 62(3)(b); Compensation for Victims of Crime Act, R.S.O. 1990, c. C.24, s. 1; Members’ Integrity Act, 1994, S.O. 1994, c. 38, s. 1; Protecting Child Performers Act, 2015, S.O. 2015, c. 2, subs. 1(1); Succession Law Reform Act, R.S.O. 1990, c. S.26, s. 1.
6. 6Re Spring and Spring (1987), 1987 CanLII 4379 (ON HCJ), 61 OR (2d) 743 at 750. See also: Johnson v. Johnson, 2005 ONCJ 325, at para. 73; Cornelio v. Cornelio, 2008 CanLII 68884 (Ont. S.C.), at para. 14; A.(D.R.) v. M.(R.)M., 1997 CanLII 12246 (Ont. Gen. Div.), at para. 11; Cassar-Fleming v. Fleming, 1996 CanLII 19729 (Ont. Gen. Div.), at para. 33; Siddall v. Siddall, 1994 CanLII 18384 (Ont. Gen. Div.), at para. 55; Delorme v. Delorme, 1993 CanLII 3408 (Ont. Gen. Div.), at para. 60.
7. 7Re Spring and Spring, note 6, at 749; Bradbury v. Mundell (1993), 1993 CanLII 5300 (ON CTGD), 13 O.R. (3d) 269 (Gen. Div.), at paras. 20-21.
8. 8A.(D.R.) v. M.(R.)M., note 6, at para. 12.
9. 9Lebeck v. Laurin, 2004 CanLII 48181 (Ont. S.C.), at para. 14; A.(D.R.) v. M.(R.)M., note 6, at para. 10; King v. Ward (1984), 1984 CanLII 4922 (ON PROVCT), 41 R.F.L. (2d) 98 (Ont. Prov. Ct.), at 100; Carson v. Carson and Schaump (1986), 1986 CanLII 6282 (ON PROVCT), 49 R.F.L. (2d) 459 (Ont. Prov. Ct.), at 462; Macdonald and Macdonald, 1979 CanLII 2072, 24 O.R. (2d) 84 (Co. Ct.).
10. 10King v. Ward, note 9, at 100.
11. 11Dovicin v. Dovicin, 2002 CanLII 49522 (Ont. S.C.), at para. 30.
12. 12Chartier v. Chartier, 1999 CanLII 707 (SCC), [1999] 1 S.C.R. 242, at 260.
13. 13Laframboise v. Laframboise, 2015 ONSC 1752, at para. 75.
14. 14Re Spring and Spring, note 6..
15. 15A.(D.R.) v. M.(R.)M., note 6, at para. 10
16. 16Dawe v. Dawe, 1979 CanLII 1155 (Ont. Prov. Ct.), at para. 3
17. 17Ibid.
18. 18Wallace v. Kaulback, 2016 ONCJ 682, at paras. 48-50.
19. 19Trahan v. Castelli, 1979 CanLII 1603 (Ont. Prov. Ct.), at paras. 19-20
20. 20Kaszas v. Guinta, 2001 CanLII 28131 (ON SC), at para. 28; Miller v. Miller (1988), 1988 CanLII 8641 (ON HCJ), 13 R.F.L. (3d) 80 (Ont. S.C.), at 82.
21. 21Lewcock v. Natili-Lewcock, 2001 CarswellOnt 1932 (S.C.J.), at para 26:
22. 22Laframboise v. Laframboise, note 13, at para. 73.
23. 23S.O. 1972, c. 142.
24. 24S.O. 1983, c. 8.
25. 25Dovicin v. Dovicin, note 11.