ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
JENNINGS, JANET WILSON AND SWINTON JJ.
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
(Appellant)
No One Appearing
No One Appearing
Carolyn Leach, for the Office of the Children’s Lawyer
HEARD at Toronto: September 29, 2009
swinton J.: (Orally)
1The Children’s Lawyer (OCL) appeals with leave from an interlocutory order of Backhouse J. dated March 31, 2009, requiring it to pay the costs of a psychiatric assessment for the mother in a custody dispute. Neither of the parties appeared on the appeal and took no position.
2The OCL is providing legal representation to the two children in accordance with s.89(3.1) of the Courts of Justice Act, R.S.O. 1990, c.C.43. It states:
At the request of a court, the Children’s Lawyer may act as the legal representative of a minor or other person who is not a party to the proceeding.
3The motions judge did not have jurisdiction to order the OCL to pay for the mother’s psychiatric assessment. A court has authority to order the disbursement of public funds for private benefit only where it is specifically empowered to do so by legislation or when an individual’s Charter rights are engaged, state funding is required to protect those rights and the private litigant is indigent (Canada v. (Attorney General) v. Savard, 1996 3294 (YK CA), [1996] Y.J. No. 4 (C.A.) at paras. 104 and 113; R. v. L.E.K., 2001 SKCA 48, [2000] S.J. No. 844 (C.A.) at para. 26).
4There is nothing in the Children’s Law Reform Act, R.S.O. 1990, c.C.11, the Courts of Justice Act or the Family Law Rules that expressly allows a court to make an order such as the one in issue here against a non-party or government body. It is for the OCL in its discretion to determine the appropriate disbursement of public funds.
5Moreover, this custody dispute between the parties does not raise Charter issues, and the evidence does not show that either party is impecunious.
6Therefore, the motions judge erred in ordering the OCL to pay for the assessment. The appeal is allowed, and paragraph 7 of the Order is set aside. As the father offered to pay for the mother’s assessment, an order is to go requiring the respondent father to pay for the mother’s assessment by Dr. Chamberlin, the cost of which shall be subject to later reallocation by the trial judge.
JENNINGS J.
7I have endorsed the Record, “This appeal is allowed for oral reasons delivered today. No order as to costs, none being demanded. An order to go requiring father to pay assessment costs subject to reallocation at trial”.
___________________________
SWINTON J.
___________________________
JENNINGS J.
___________________________
JANET WILSON J.
Date of Reasons for Judgment: September 29, 2009
Date of Release: October 5, 2009
COURT FILE NO.: 222/09
DATE: 20090929
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
JENNINGS, JANET WILSON AND SWINTON JJ.
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
(Appellant)
ORAL REASONS FOR JUDGMENT
SWINTON J.
Date of Reasons for Judgment: September 29, 2009
Date of Release: October 5, 2009