ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
SHERRY MAJOR
Applicant
(Respondent)
- and -
DANIEL MAJOR
Respondent
(Respondent)
- and –
THE CHILDREN’S LAWYER
Counsel for the Children
(Moving Party)
No One Appearing, for the Applicant
No One Appearing, for the Respondent
Carolyn Leach, for the Children’s Lawyer
HEARD at Toronto: May 20, 2009
LEDERMAN J.: (Orally)
1The Office of the Children’s Lawyer (OCL) moves for leave to appeal that part of the interlocutory order of Backhouse J., which required that the OCL pay the costs for the applicant mother to be psychiatrically assessed. No one appeared for the mother or father on this motion for leave and I am advised that they take no position.
2The proceeding in question is a custody and access dispute between the parents over their children. The Court requested that the OCL become involved in the matter. The Children’s Lawyer agreed to provide legal representation for the children under s.89(3.1) of the Courts of Justice Act with assistance from a clinical investigator. Because of the nature of the allegations and concerns about the behaviour of the parents, the OCL counsel requested that each parent submit to psychiatric assessment. The father arranged for an assessment to be conducted by Dr. Clive Chamberlain. The mother who resides in Nova Scotia, had difficulty in arranging a psychiatric assessment through Mental Health Services Department in Nova Scotia within the required time period.
3As an alternative, the father was willing to have an order requiring the mother to participate in a private assessment to be paid by him subject to reallocation by the Court at a later time.
4On her own initiative, the motions judge proposed that the cost of assessment be borne by the OCL. In view of that, the OCL took the position that if the parties were unable to pay for the psychiatric assessments, OCL counsel would represent the children without that information being available.
5Nonetheless, the motions judge ordered that the OCL should pay for the mother’s assessment. In doing so, the motions judge pointed out:
(a) the mother did not have the funds to pay for an assessment;
(b) the father was unemployed and does not pay child support;
(c) although the father had offered as an alternative that he would pay for the mother’s assessment, the motions judge was concerned about the optics of this; and
(d) although the OCL was prepared to advance a position on custody and access without the psychiatric assessment, the motions judge required the assistance of an assessment.
6The OCL seeks leave to appeal under Rule 62.02(4)(b). The first branch requires a finding that “there is good reason to doubt the correctness of the order in question”. That does not mean a belief that the order is wrong. All that need be shown is that the order is open to very serious debate or raises an arguable issue.
7In this case, there is a serious issue whether the motions judge had jurisdiction to order a non-party government office to pay for the psychiatric assessment of a party to private litigation.
8There is nothing in the Children’s Law Reform Act, the Courts of Justice Act or the Family Law Rules that expressly allows a Court to make such an order against a non-party or government body.
9Although there is jurisprudence which authorizes a Court to order disbursement of public funds for private benefit, such authority has been limited to situations where:
(a) the private litigant’s Charter rights are engaged and require the expenditure of public funds to protect those rights, and
(b) the private litigant is indigent.
10Neither of these criteria is present here. This is a dispute between private parties over custody and access. It is not a case of the state seeking to remove a child from parental custody. Thus, the Charter does not apply.
11Moreover, the parties are not indigent. Both the mother and father are represented by private counsel and are not receiving legal aid.
12Even if there is jurisdiction to make such an order, the motion judge’s order does not reflect the established cautionary principles that govern any Court’s order for the expenditure of public funds.
13Thus, there is a serious question as to the correctness of the order.
14As to the second branch of Rule 62.02(4)(b), that the proposed appeal involve matters of importance, the propriety of a Court ordering the expenditure of public money in private family litigation is of importance generally to the administration of justice and transcends the immediate interest of the parties to this action.
15It is a matter of critical importance to the publicly funded offices that form part of the family court system in Ontario. Such offices have limited budgets and costs orders may restrict the number of cases in which the OCL can use its scarce resources to provide assistance to children and families and the Court.
16It is therefore of public importance that an appellate court provide guidance as to whether, and if so under what circumstances, a Court may order the OCL to pay the costs of a psychiatric or psychological assessment in private family litigation.
17The motion for leave to appeal is therefore granted.
18There will be no costs of the motion.
LEDERMAN J.
Date of Reasons for Judgment: May 20, 2009
Date of Release: May 29, 2009
COURT FILE NO.: 222/09
DATE: 20090520
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
SHERRY MAJOR
Applicant
(Respondent)
- and -
DANIEL MAJOR
Respondent
(Respondent)
- and –
THE CHILDREN’S LAWYER
Counsel for the Children
(Moving Party)
ORAL REASONS FOR JUDGMENT
LEDERMAN J.
Date of Reasons for Judgment: May 20, 2009
Date of Release: May 29, 2009