DATE: 20040308

DOCKET: C40719

COURT OF APPEAL FOR ONTARIO

RE:

NOOSHIN DABIRIAN (Applicant/Respondent) AND MOSTAFA DABIRIAN (Respondent)

BEFORE:

GOUDGE, GILLESE AND BLAIR JJ.A.

COUNSEL:

Clare E. Burns and Shelley D. McIntyre

for the appellant The Children’s Lawyer

Salvatore Garcea

for the respondent, Nooshin Dabririan

Mostafa Dabirian

in person

HEARD:

March 2, 2004

RELEASED

ORALLY:

March 2, 2004

On appeal from the order of Justice Walter Stayshyn of the Superior Court of Justice dated September 3, 2003.

E N D O R S E M E N T

[1] On April 7, 2003 Stayshyn J. made two orders. The first, in the standard form, referred the matter to The Children’s Lawyer to provide such services under s. 89 and s. 112 of the Courts of Justice Act as she deems appropriate.

[2] The second provided that The Children’s Lawyer “shall prepare” a report by a worker other than the one who prepared an earlier report in this case, back in 2001. This was apparently because the judge had developed a concern based on his prior involvement in the case that it was not in the child’s best interests that the author of the earlier report be further involved.

[3] Both orders were made without notice to The Children’s Lawyer.

[4] On September 2, 2003 the judge refused to vary this second order. In our view, he erred in doing so. We see no jurisdiction in the judge of first instance to require a report to be made or to require that it be authored by someone other than a designated worker for the Office of the Children’s Lawyer. While the judge can request that if The Children’s Lawyer decides to become involved under s. 112 the resulting report be prepared by someone other than a designated worker, it remains for The Children’s Lawyer to decide whether to participate on those terms.

[5] Where a debate like this arises there should be an opportunity for The Children’s Lawyer to appear before the judge to hear the judge’s concerns and to offer a response. That did not take place in this case.

[6] Thus we would set aside the order of September 2, 2003 and vary the second order of April 7, 2003 by setting aside paragraph 1 and ordering that The Children’s Lawyer have the opportunity to attend before Stayshyn J. to respond to his concern about the continuing involvement of the worker who prepared the first report.

[7] Thereafter it will be open to the judge to request that The Children’s Lawyer become involved on the basis that the new report be authored by another worker. If that request is made, it will be up to The Children’s Lawyer to determine whether or not to participate on that basis.

_ “S.T. Goudge J.A.”

“E.E. Gillese J.A.”

“R.A. Blair J.A.”