Court of Appeal for Ontario

Citation: Novoa v. Molero, 2007 ONCA 800

Date: 2007-11-26

Docket: C47401

Before: O’Connor A.C.J.O., Gillese and Watt JJ.A.

Between:

Norma Novoa Applicant/Respondent

and

Michelle Molero Respondent

and

Mauricio Novoa Respondent

Counsel: Manjusha Pawagi for the Office of the Children’s Lawyer No one appearing for the respondents

Heard and released orally: November 21, 2007

On appeal from the order of Justice Steven Rogin of the Superior Court of Justice dated June 29, 2007.

By the Court:

[1] Some time ago, the Children’s Lawyer provided the court of first instance with a report on the custody and access matters in dispute in this proceeding.

[2] On April 10, 2007, approximately a year after the report had been filed with the court, an order was issued in which the court again referred the matter to the Children’s Lawyer. The April 2007 order sought an update of the report (the “further report”), pursuant to ss. 89(3.1) and 112 of the Courts of Justice Act, R.S.O. 1990, c. C. 43, provided that the Children’s Lawyer deemed it appropriate.

[3] The Children’s Lawyer declined to provide the further report and so advised the parties and the court.

[4] On June 29, 2007, without notice to the Children’s Lawyer, an order was made compelling the Children’s Lawyer to indicate whether it would issue the further report and, if the further report was not provided, to attend court, state the reasons for not completing the further report and show why the Children’s Lawyer should not be found in contempt of the April 2007 order.

[5] The Children’s Lawyer appeals.

[6] We would allow the appeal as, in our view, the motions judge erred in law in making the impugned order.

[7] Sections 89(3.1) and 112 of the Courts of Justice Act, supra, read as follows:

89(3.1) 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.

112(1) In a proceeding under the divorce Act (Canada) or the Children’s Law Reform Act in which a question concerning custody 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. [emphasis added]

[8] The word “may” is permissive, not imperative. Accordingly, the use of the word “may” in ss. 89 (3.1) and s. 112 of the Court of Justice Act, supra, makes it clear that the Children’s Lawyer has the discretion to decide whether to cause an investigation to be made and the discretion whether to report and make recommendations to the court on the matters of custody and access.

[9] This court recently affirmed the discretionary nature of the power given to the Children’s Lawyer pursuant to ss. 89(3.1) and 112: see Dabirian v. Dabirian, 2004 13518 (ON CA), [2004] O.J. No. 846 at paras. 5 and 7, where it is noted that while a court can request the Children’s Lawyer involvement, it remains up to the Children’s Lawyer to decide whether to participate in a custody and access proceeding.

[10] Further, in our view, there is no obligation on the Children’s Lawyer to give reasons for the exercise of that discretion. In reaching this conclusion, we begin by noting that there is no statutory obligation on the Children’s Lawyer to provide reasons.

[11] Next, we are of the view that the common law duty to give reasons does not extend to encompass the decisions taken by the Children’s Lawyer pursuant to these provisions.

[12] In Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817 at 847-848, the Supreme Court of Canada set out four factors to be considered when determining whether there is an obligation to provide reasons. Those factors are:

a. the extent to which the proceedings are judicial in nature;

b. whether there is a statutory requirement to provide reasons;

c. whether there is a statutory right of appeal; and

d. the significance of the decision for the individual.

[13] The Children’s Lawyer is not a judge, nor is it an administrative hearings officer. No proceeding takes place prior to the exercise of discretion by the Children’s Lawyer pursuant to ss. 89(3.1) and 112. As mentioned, there is no statutory requirement that the Children’s Lawyer give reasons for the exercise of discretion pursuant to those sections. Nor is there a statutory right of appeal from that exercise of discretion. The fourth factor is inapplicable in that any report that is prepared is directed to the court, rather than to an individual. That is, the obligation that the Children’s Lawyer owes, should it choose to make a report, is to the court and not to one of the parties to a proceeding.

[14] As there is no statutory or common law obligation on the Children’s Lawyer to provide reasons for its determination to not prepare a further report, it was an error to order it to provide such reasons.

[15] Accordingly, we would allow the appeal and set aside paragraph 3 of the order of June 29, 2007.

RELEASED: November 26, 2007 (“DOC”)

“Dennis O’Connor A.C.J.O.”

“E.E. Gillese J.A.”

“David Watt J.A.”