Noel v. Noel, 2015 ONSC 4561
NEWMARKET COURT FILE NO.: DC-15-0791
FC-12-42004
DATE: 20150722
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Rose Laurie Noel
Applicant
– and –
Aschley Noel
Respondent
– and –
The Office of the Children’s Lawyer/Added
Party
Respondent
Alnaz Jiwa, for the Applicant and Agent for Bert Smith aka Englhieberth Smith
Gary Joseph, for the Respondent
Sheila Bruce Agent for the Office of the Children’s Lawyer
HEARD: In Chambers
REASONS FOR DECISION on motion for leave to appeal
KAUFMAN J.:
Background
[1] The applicant and the respondent are former spouses of one another. Together they are the parents of three children now aged 15, 10 and 7. In the matter before me, the issues of custody and access relating to the three children remain in dispute. The moving party Bert Smith (“Smith”) is not a party to this action. He is the husband of the applicant.
[2] On March 26, 2013 pursuant to an Order of McGee J. the Office of the Children’s Lawyer (“OCL”) was requested to provide such services, under section 89 (3.1) and section 112 of the Courts of Justice Act as she deems appropriate for the minor children.
[3] On May 15, 2013 the OCL served its notice to the parties agreeing to represent the children pursuant to section 89 (3.1). The file was assigned to Ms. Bruce, as agent. The OCL also appointed a Clinical Investigator, Ms. Karen Guthrie-Dousse to assist Ms. Bruce in her representation of the children.
[4] Thereafter, the OCL held interviews with the parties including Smith. In the course of its investigation the OCL became aware that Smith was known to the CAS. The OCL asked Smith to provide his consent to the OCL to obtain his records from the Durham Children’s Aid Society (“CAS”), CPIC and the police; he declined.
[5] On March 11, 2015, upon motion brought by the OCL, Justice Bennett granted an Order that the Durham CAS provide a copy of the records in relation to Smith pursuant to Rule 19 (11) of the Family Law Rules to the OCL and that Smith provide his consent to the disclosure of any records in the possession of any police force in Canada and for a CPIC report, also pursuant to Rule 19 (11) to the OCL. Costs were awarded in favour of the OCL and the respondent. Smith seeks leave to appeal this Order and an Order staying the said Order until the motion for leave is heard and disposed of and thereafter until the disposition of the appeal, if leave is granted to appeal the said Order.
Test for Leave to Appeal
[6] Pursuant to Rule 62.02 (4) of the Rules of Civil Procedure, leave to appeal shall not be granted unless:
(a) There is a conflicting decision by another judge or court in Ontario or elsewhere in the matter involved in the proposed appeal and it is of the opinion of the judge hearing the motion, desirable that leave to appeal be granted; or
(b) There appears to the judge hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in his or her opinion, leave to appeal should be granted.
[7] Both Smith and the OCL acknowledge that there is no decision conflicting with Justice Bennett’s Order. The respondent filed no materials on this motion.
Position of the Moving Party
[8] Smith maintains that the OCL was appointed under both subsections 89 (3.1) and 112 of the Courts of Justice Act pursuant to the Order of Justice McGee dated March 26, 2013. Accordingly, Smith maintains that the OCL is required to deliver a report under Rule 21 of the Family Law Rules. That Rule states as follows:
When the Children’s Lawyer investigates and reports on custody of or access to a child under section 112 of the Courts of Justice Act,
(a) the Children’s Lawyer shall first serve notice on the parties and file it;
(b) the parties shall, from the time they are served with the notice, serve the Children’s Lawyer with every document in the case that involves the child’s custody, access, support, health or education, as if the Children’s Lawyer were a party in the case;
(c) the Children’s Lawyer has the same rights as a party to document disclosure (Rule 19) and questioning witnesses (Rule 20) about any matter involving the child’s custody, access, support, health or education;
(d) within 90 days after serving the notice under clause (a), the Children’s Lawyer shall serve a report on the parties and file it;
(e) within 30 days after being served with the report, a party may serve and file a statement disputing anything in it; and
(f) the trial shall not be held and the court shall not make a final order in the case until the 30 days referred to in clause (e) expire or the parties file a statement giving up their right to that time.
[9] Smith states that from May 15, 2013, the date the OCL served its notice agreeing to represent the children and also appointed a Clinical Investigator to investigate the issues concerning the children, 26 months have elapsed since the Order was made and the OCL has not delivered its report to the court.
[10] Smith also states that he fully cooperated in his meetings with the OCL as and when requested to meet. However, when asked to provide his consent to the OCL obtaining his records from the CAS and the police, he refused to do so.
[11] As a result of his refusal, the OCL brought a motion and argued that it was entitled to the information that it was seeking and that the information sought was relevant based on Rule 19 (11).
[12] Smith maintains that the OCL proceeded under both section 89 (3.1) as well as section 112 of the Courts of Justice Act and, as such the court erred in granting relief under Rule 19 (11) rather than Rule 21. He argues that Rule 19 (11) is a general rule while Rule 21 is a specific rule governing the issue of investigations and report to be filed by the OCL and it restricts disclosure between the parties. Further, he maintains that the OCL has by its conduct failed to comply with the obligations imposed by Rule 21 by insisting on bringing a motion under Rule 19 (11) and hence delaying the matter despite the mandatory wording of Rule 21.
[13] In the alternative, Smith maintains that the motions judge erred in finding that the CAS and police reports of non-party spouses are relevant pursuant to Rule 19 (11) and be produced, essentially as of right. He relies upon his interpretation of Rule 35.1 which does not require a non-party spouse to provide police and CAS reports to the parties, to the court or to the OCL when the non-party is not seeking custody or access to children. He argues that Rule 19 (11) cannot be used to trump this privacy right since he is not seeking custody and access to the children.
[14] In addition, Smith argues that the motion’s judge committed an error of law by granting the disclosure order when the moving party did not file any evidence to satisfy the “unfair” test imposed by Rule 19 (11). He states that the OCL has not satisfied the court as to why three interviews that it had with Smith were not sufficient to perform its duties and why it would be “unfair” for it to proceed to a hearing without that specific information.
[15] Finally, Smith maintains that the court needs to settle the parameters of the OCL’s disclosure requirements; he submits that whereas the OCL argues that it can demand police and CAS records of non-party spouses as essential to performing its duties, the OCL’s primary mandate is to determine the children’s views and to relay them to the court. Thus, he argues, the OCL acting under section 89 (3.1) and Rule 19 (11) is not relevant as the material does not enable the OCL to determine the views of the children and hence it cannot compel the production of these records.
[16] If leave is granted, Smith proposes to argue the following issues at the appeal:
(a) Can OCL suspend its investigation and refuse to provide a report to the court mandated under Rule 21 of the Family Law Rules?
(b) Does OCL, if appointed by section 89 (3.1) of the Courts of Justice Act, have a right to demand a non-party’s police and other records under Rule 19 (11) of the Family Law Rules?
(c) Does OCL, if appointed by section 112 of the Courts of Justice Act have a right to demand a non-party’s police and other records under Rule 19 (11) of the Family Law Rules?
(d) Can OCL only agree to act under section 89 (3.1) when ordered by courts to assist in custody and/or access matters?
(e) Are police reports, CPIC or CAS reports of non-party (spouses/partners) relevant when determining the issues of custody or access to children?
(f) Does OCL have an automatic right to such disclosure or does it need to satisfy the court by way of some evidence before obtaining such disclosure?
(g) Does OCL’s mandate when appointed under s. 89 (3.1) or s. 112 of the Courts of Justice Act include obtaining such police and CAS records or is it restricted to determining the wishes of the children and relating them to the court?
(h) Does Rule 21 trump Rule 19 (11) when dealing with disclosure issues when OCL is acting pursuant to section 112 of the Courts of Justice Act?
Position of the OCL
[17] The OCL maintains that the court does not have jurisdiction to order the OCL to become involved in a proceeding, rather, the court is given the authority to request the assistance of the OCL.
[18] If requested to assist, the OCL then determines the nature of assistance to be provided to the court, either pursuant to section 89 (3.1) or pursuant to section 112 of the Courts of Justice Act. The sections operate separately and not together as suggested by the appellant.
[19] If pursuant to section 89 (3.1), the OCL may decide to appoint a lawyer to represent the interests of children where there are custody and/or access issues before the court. Alternatively, pursuant to section 112, the OCL may decide to investigate and provide a report to the court and make recommendations concerning custody and access issues. The report is prepared by a Clinical Investigator, not a lawyer.
[20] In this case, the OCL chose to assist the court pursuant to section 89 (3.1) by appointing a lawyer to represent the interests of the children. The Clinical Investigator was appointed to assist and work together with the lawyer appointed pursuant to section 89 (3.1). As such, the OCL submits that all references to a report and to Rule 21 of the Family Law Rules are entirely irrelevant to this proceeding.
[21] Paragraph 4 of the standard order requesting the assistance of the OCL ( and the Order of McGee, J. dated March 26, 2013 appointing the OCL in this case) grants authority to represent children, as follows:
- THIS COURT ORDERS that if the Children’s Lawyer determines to provide legal representation under section 89 (3.1) of the Courts of Justice Act, the Children’s Lawyer shall have full power to act for the said child(ren) as though they were parties to these proceedings and, without limiting the generality of the foregoing, the Children’s Lawyer shall have the right to:
(a) make a full and independent inquiry of all of the circumstances relating to the best interests of the child(ren);
(b) receive copies of all professional reports and all records relating to the child(ren);
(c) production and discovery according to the Rules;
(d) appear and participate in the proceeding, including the right to examine and cross-examine witnesses, call evidence and make submissions to the court, such submissions to include the position(s) advanced on behalf of the child(ren);
(e) applied to be removed as the legal representative of the child(ren), if the Children’s Lawyer believes that such involvement is no longer in the child(ren)’s interests;
(f) take such appeal proceedings as deemed appropriate; and
(g) seek costs related to these proceedings.
[22] The OCL submits that as part of its role in representing children, it’s lawyers and Clinical Investigators acting pursuant to section 89 (3.1) are directed by the OCL to obtain collateral information to assist in assessing the context of children’s wishes and to assist the court. Information is routinely sought from the children’s schools, the CAS, the police and any professionals involved with the family. Further, the OCL submits that this information is within the authority of the OCL to obtain, given that the Order authorizes the OCL to make a “full, independent inquiry of all the circumstances relating to the best interests of the child(ren)” and accords the OCL with the right of production and discovery according to the Rules.
[23] The OCL argues that it cannot fulfil its mandate in the case at bar without access to the CAS and police records of Smith. In turn, the OCL submits that the court is mandated pursuant to section 24 of the Children’s Law Reform Act, R.S.O. 1990, c. C-12, as amended, to make an order on the basis of the best interests of the child. It states as follows:
- (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4). 2006, c. 1, s. 3 (1).
Best interests of child
(2) The court shall consider all the child’s needs and circumstances, including,
(a) the love, affection and emotional ties between the child and,
(i) each person entitled to or claiming custody of or access to the child;
(ii) other members of the child’s family who reside with the child; and
(iii) persons involved in the child’s care and upbringing;
(b) the child’s views and preferences, if they can reasonably be ascertained;
(c) the length of time the child has lived in a stable home environment;
(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;
(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;
(f) the permanence and stability of the family unit with which it is proposed that the child will live;
(g) the ability of each person applying for custody of or access to the child to act as a parent; and
(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application. 2006, c. 1, s. 3 (1); 2009, c. 11, s. 10.
Past conduct
(3) A person’s past conduct shall be considered only,
(a) in accordance with subsection (4); or
(b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent. 2006, c. 1, s. 3 (1).
Violence and abuse
(4) In assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,
(a) his or her spouse;
(b) a parent of the child to whom the application relates;
(c) a member of the person’s household; or
(d) any child. 2006, c. 1, s. 3 (1).
Same
(5) For the purposes of subsection (4), anything done in self-defence or to protect another person shall not be considered violence or abuse. 2006, c. 1, s. 3 (1).
[24] The OCL submits that section 24 does not provide an exhaustive list of factors the court must consider in determining the best interests of the child, but states that the court “must consider all of the child’s needs and circumstances.”
[25] Based on the aforesaid mandates of both the OCL and the court, the OCL maintains that it was legally correct for Justice Bennett to order Mr. Smith, the children’s stepfather, to provide to the OCL evidence of his involvement with the CAS and police (if any) to assist the court in determining significant decisions such as custody and access.
[26] The OCL argues that the fact that a stepparent is not required to provide a Form 35.1 Affidavit does not lead to the conclusion that a stepparent should not be required to provide background information relevant to custody and access issues and that CAS records concerning a stepparent will always be relevant to a custody and access proceeding. It maintains the fact that Mr. Smith is not seeking a custody or access order is not relevant in that the Rules contemplate situations where information from third parties will be relevant and necessary in determining custody and access orders.
[27] It further submits that the motions judge balanced the interests of the stepfather’s refusal to provide information with the need for this information in determining what is in the best interests of the children. In addition, the Clinical Investigator was concerned that the children may have been coached by both parents regarding allegations against Mr. Smith and that it had a duty to fully investigate all available information.
Analysis
[28] Section 89 (3.1) states as follows:
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 a proceeding. 1994, c. 12, s. 37; 1999, c. 12, Sched. B, s. 4 (1).
[29] Section 112 states as follows:
(1) In a proceeding under the Divorce Act (Canada) or the Children’s Law Reform Act in which a question concerning custody of or access to a child is before the court, the Children’s Lawyer may cause an investigation to be made and may report and make recommendations to the court on all matters concerning custody of or access to the child and the child’s support and education. R.S.O. 1990, c. C.43, s. 112 (1); 1994, c. 27, s. 43 (2).
(2) The Children’s Lawyer may act under subsection (1) on his or her own initiative, at the request of a court or at the request of any person. R.S.O. 1990, c. C.43, s. 112 (2); 1994, c. 27, s. 43 (2).
(3) An affidavit of the person making the investigation, verifying the report as to facts that are within the person’s knowledge and setting out the source of the person’s information and belief as to other facts, with the report attached as an exhibit thereto, shall be served on the parties and filed and on being filed shall form part of the evidence at the hearing of the proceeding. R.S.O. 1990, c. C.43, s. 112 (3).
(4) Where a party to the proceeding disputes the facts set out in the report, the Children’s Lawyer shall if directed by the court, and may when not so directed, attend the hearing on behalf of the child and cause the person who made the investigation to attend as a witness. R.S.O. 1990, c. C.43, s. 112 (4); 1994, c. 27, s. 43 (2).
[30] Rule 4(7) of the Family Law Rules states as follows:
LAWYER FOR CHILD
(7) In a case that involves a child who is not a party, the court may authorize a lawyer to represent the child, and then the child has the rights of a party, unless the court orders otherwise. O. Reg. 114/99, r. 4 (7).
[31] Rule 19 (11) states as follows:
DOCUMENT IN NON-PARTY’S CONTROL
(11) If a document is in a non-party’s control, or is available only to the non-party, and is not protected by a legal privilege, and it would be unfair to a party to go on with the case without the document, the court may, on motion with notice served on every party and served on the non-party by special service,
(a) order the non-party to let the party examine the document and to supply the party with a copy at the legal aid rate; and
(b) order that a copy be prepared and used for all purposes of the case instead of the original. O. Reg. 114/99, r. 19 (11).
[32] Rule 35.1 of the Family Law Rules states as follows:
In this rule, definition of a “parent” means,
(a) a biological parent of a child,
(b) an adoptive parent of a child,
(c) an individual declared under Part II of the Children’s Law Reform Act to be a parent of a child, and
(d) an individual presumed under section 8 of the Children’s Law Reform Act to be the father of a child. O. Reg. 6/10, s. 9.
Affidavit in support of custody or Access claim
(2) If an application, answer or motion to change a final order contains a claim for custody of or access to a child, the party making the claim shall serve and file an affidavit in support of claim for custody or access (Form 35.1), together with any other documents required by this rule, with the document that contains the claim. O. Reg. 6/10, s. 9.
Police Records Check
(3) Every person who makes a claim for custody of a child and who is not a parent of the child shall attach to the affidavit in support of claim for custody or access,
(a) a police records check obtained not more than 60 days before the person starts the claim; or
(b) if the person requested the police records check for the purposes of the claim but has not received it by the time he or she starts the claim, proof of the request. O. Reg. 6/10, s. 9.
Same
(4) If clause (3) (b) applies, the person shall serve and file the police records check no later than 10 days after receiving it. O. Reg. 6/10, s. 9.
Request for Report from Children’s Aid Society
(5) Every person required to submit a request under subsection 21.2 (2) of the Children’s Law Reform Act for a report from a children’s aid society shall provide to the court a copy of the request together with the affidavit in support of claim for custody or access. O. Reg. 6/10, s. 9.
Documents shall be refused
(6) If these rules require a document to be accompanied by the applicable documents referred to in this rule, the clerk shall not accept the document for filing without,
(a) an affidavit in support of claim for custody or access; and
(b) the documents referred to in subrules (3) and (5), if applicable. O. Reg. 6/10, s. 9.
Corrections and Updates
(7) As soon as a person discovers that information in his or her affidavit in support of claim for custody or access is incorrect or incomplete, or that there has been a change in the information provided in the affidavit, he or she shall immediately serve and file,
(a) a new affidavit in support of claim for custody or access (Form 35.1) containing the correct or updated information; or
(b) if the correction or change is minor, an affidavit in Form 14A describing the correction or change and indicating any effect it has on the person’s plan for the care and upbringing of the child. O. Reg. 6/10, s. 9.
Associated Cases
(8) If the clerk provides to a person making a claim for custody of a child information in writing under subsection 21.3 (1) of the Children’s Law Reform Act respecting any current or previous family proceedings involving the child or any person who is a party to the claim and who is not a parent of the child, the person shall serve a copy of the written information on every other party. O. Reg. 6/10, s. 9.
Same
(9) If the written information provided by the clerk contains information indicating that the person making the claim was or is involved in family proceedings in which he or she was or is not involved, the person making the claim may serve with the copy of the written information an affidavit identifying those proceedings. O. Reg. 6/10, s. 9.
[33] The Order of Justice McGee dated March 26, 2013 requested the assistance of the OCL in a manner as may be deemed appropriate by the OCL. The standard order utilized by the courts request the OCL to either act as a legal representative for any child involved in a custody/access dispute or to cause an investigation to be made and report back to the court on matters concerning the custody and/or access of the child.
[34] In B. (A.C.) v. B. (R.), 2010 ONCA 714, 2010 CarswellOnt 8121, the court held that a Superior Court Judge ought to have respected the structure of s. 89 (3.1) and s. 112 of the Courts of Justice Act which give the OCL discretion in considering requests for its involvement and the manner in which it is able to allocate its limited resources. In the cases that were the subject matter of the appeals before that court, the Superior Court Judge had ordered the OCL to act rather than requested its involvement.
[35] In the case at bar, quite clearly, Justice McGee requested the OCL to exercise its discretion in offering services which it deemed appropriate for the children in question. The standard wording of the Court Order is not to be interpreted, as suggested by the appellant, as requiring the OCL to provide both sets of services.
[36] Furthermore, once the order is made, the parties are required to submit Intake Forms to better assist the OCL in making a determination. It may well have been that the contents of the Intake Forms or the Court Order itself provided some indication to the OCL, in appointing legal representation for the children, to provide counsel with the benefit of a Clinical Investigator to better assist the OCL in taking a position on behalf of the children. However, providing counsel with the Clinical Investigator does not result In the Clinical Investigator being required to submit a Report as would be the result if the appointment had been made pursuant to section 112 of the Courts of Justice Act.
[37] Paragraph 4 of the Order requesting the involvement of the OCL grants authority to the OCL to conduct itself as if the children were parties to these proceedings. This authority is codified in Rule 4 (7) of the Family Law Rules. Under section 24 of the Children’s Law Reform Act the court is mandated to make an order on the basis of the best interests of the children. The court is required to consider all of the children’s needs and circumstances including the love, affection and emotional ties between the child and persons involved in the child’s care and upbringing. The court is required to consider the permanence and stability of the family unit with which it is proposed that the children will live. Past conduct shall be considered only if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent. It therefore stands to reason that if the OCL is being requested to assist the court on matters pertaining to custody and access of children that the OCL should not be impeded in making a full and independent inquiry of all of the circumstances relating to the best interests of the children.
[38] The appellant, Smith, is the stepfather of the children represented by the OCL by virtue of his marriage to the children’s mother, the applicant in the case before the court. She is embroiled in a dispute with the children’s father regarding the children’s custody and access. Recognizing that the court must make a determination on the basis of the best interests of the children and recognizing that the OCL must make a full and independent inquiry of all of the circumstances relating to the best interests of the children to assist the court in its determination, it would clearly be unfair to the children if a determination was made regarding their custody and access without the best information before the court concerning all persons involved in the children’s care and upbringing.
[39] Smith has also made reference to the Form 35.1 Affidavit which requires a party who is not a parent but is making a claim for custody or access to children to provide police record checks and reports from local Children’s Aid Societies. His argument that he should not be required to satisfy the information request from the OCL because he is not making a claim for custody or access is without merit. The argument flies in the face of section 24 of the Children’s Law Reform Act.
[40] In P. (C.A.G.) v. J. (C.), 2010 ONCJ 175 (OCJ), a decision of Justice Sherr, the court provided some insight into the amendments to the Family Law Rules that are now embodied in Rule 35.1 in stating:
The amendments to the Act were made on the basis that it is in the best interest of children to ensure that the court have additional threshold information about families before it makes custody decisions and to provide safeguards against placing children in unsafe homes. There is a clear expressed intent that, when non-parents are applying for custody, the information threshold is greater. Although the reality may be that many children are placed on agreement of parents with non-parents without court orders, the intention of the legislation is that, when non-parents are applying for court order for custody of the child, the court must have this additional information before it endorses its approval of these arrangements through a custody order.
[41] In Green v. Dwyer, 2013 ONSC 1162, Justice Mitrow found that he would have made the order for the individual to obtain a Police Record check even if the individual was deemed to be a parent, and so the record would not be required under the Act. This is because it had been revealed that the individual had a sexual assault record and had previous involvement with the CAS. As the court noted at paragraph 16, “on the facts of this case, I would have requested a police records check and verification of Society involvement even if Mr. Dwyer was the biological father.”
[42] The information ordered to be produced is relevant to the issues of custody and access in view of the fact that Mr. Smith resides with the children. If the rationale of the Form 35.1 Affidavit is to “provide safeguards against placing children in unsafe homes”, the court must satisfy itself that the home is safe for the children and the court is unable to satisfy itself and the OCL is unable to assist the court and take a position without having full knowledge of the background of Mr. Smith. It is not simply an exercise of ascertaining the views and preferences of the children without being able to formulate the context of those views and preferences and that enables the OCL to make a full and independent inquiry of all of the circumstances relating to the best interests of the children which must prevail over the interests of an adult in their lives who wishes to maintain his privacy.
[43] For reasons aforesaid, I find that there is no good reason to doubt the correctness of the Order made by Justice Bennett and it is not desirable for leave to appeal to be granted.
[44] If the parties are unable to agree as to costs within 20 days, then counsel shall contact the trial coordinator to arrange time to speak to the issue of costs and this matter may be scheduled at 9:15 a.m. on a Tuesday. If either counsel is relying on Offers to Settle, a Bill of Costs or Authorities, then those documents shall be exchanged between counsel within a reasonable time prior to the costs hearing.
Justice R. Kaufman
Released: July 22, 2015