Bhajan v. Bhajan
Bhajan v. Bhajan et al. V.V. v. M.V. et al. MacDonald v. MacDonald et al. A.C.B. v. R.B. et al. Goh v. Wen et al. Feldman v. Boue et al. [Indexed as: Bhajan v. Bhajan]
104 O.R. (3d) 368
2010 ONCA 714
Court of Appeal for Ontario,
Weiler, Blair, MacFarland, LaForme and Watt
JJ.A.
October 28, 2010
Family law -- Children -- Office of the Children's Lawyer -- Superior Court judge exercising his parens patriae jurisdiction to order Office of the Children's Lawyer to represent children or to obtain further information -- OCL's appeal allowed -- Superior Court judge improperly circumventing existing statutory structure for engaging OCL.
In six cases, a Superior Court judge ordered the Office of the Children's Lawyer ("OCL") to become involved, exercising his parens patriae jurisdiction, instead of requesting the OCL to provide the particular services under ss. 89(3.1) and 112 of the Courts of Justice Act, R.S.O. 1990, c. C.43. The OCL appealed.
Held, the appeals should be allowed.
Assuming, without deciding, that Superior Court judges can, in the appropriate circumstances, exercise their parens patriae jurisdiction to order the OCL to act, that jurisdiction ought not to have been exercised in these cases. The Superior Court judge ought to have respected the structure of ss. 89(3.1) and 112 of the CJA, which gave the OCL discretion in considering requests for their involvement. The OCL has limited resources and it, not the court, is in the best position to decide when and how to utilize those resources. Prior to exercising his [page369] parens patriae jurisdiction to make an order, it was incumbent on the Superior Court judge to consider and avail himself of other available avenues for assistance that were responsive to the specific factual problems before him.
APPEALS from the orders of Paisley J., [2010] O.J. No. 1629, 2010 ONSC 2203 requiring the Office of the Children's Lawyer to act.
Cases referred to
A. (A.) v. B. (B.) (2007), 83 O.R. (3d) 561, [2007] O.J. No. 2, 2007 ONCA 2, 278 D.L.R. (4th) 519, 220 O.A.C. 115, 150 C.R.R. (2d) 110, 35 R.F.L. (6th) 1, EYB 2007-112046; E. (Mrs.) v. Eve, 1986 CanLII 36 (SCC), [1986] 2 S.C.R. 388, [1986] S.C.J. No. 60, 31 D.L.R. (4th) 1, 71 N.R. 1, J.E. 86-1051, 61 Nfld. & P.E.I.R. 273, 13 C.P.C. (2d) 6, 2 A.C.W.S. (3d) 42, consd Other cases referred to A. v. Liverpool City Council, [1982] A.C. 363, [1981] 2 All E.R. 385, [1981] 2 W.L.R. 948, 79 L.G.R. 621, 145 J.P. 318, 2 F.L.R. 222 (H.L.); Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817, [1999] S.C.J. No. 39, 174 D.L.R. (4th) 193, 243 N.R. 22, J.E. 99-1412, REJB 1999-13279, 14 Admin. L.R. (3d) 173, 1 Imm. L.R. (3d) 1, 89 A.C.W.S. (3d) 777; Beson v. Newfoundland (Director of Child Welfare), 1982 CanLII 32 (SCC), [1982] 2 S.C.R. 716, [1982] S.C.J. No. 95, 142 D.L.R. (3d) 20, 44 N.R. 602, J.E. 82-1172, 39 Nfld. & P.E.I.R. 246, 30 R.F.L. (2d) 438, 17 A.C.W.S. (2d) 57; Bubovich v. Bubovich, 2005 CanLII 39323 (ON CA), [2005] O.J. No. 4528, 19 R.F.L. (6th) 15, 143 A.C.W.S. (3d) 311 (C.A.); C. (A.) v. Manitoba (Director of Child and Family Services), [2009] 2 S.C.R. 181, [2009] S.C.J. No. 30, J.E. 2009-1241, 2009 SCC 30, 309 D.L.R. (4th) 581, 240 Man. R. (2d) 177, 65 R.F.L. (6th) 239, [2009] 7 W.W.R. 379, 66 C.C.L.T. (3d) 1, 390 N.R. 1; Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] 1 S.C.R. 76, [2004] S.C.J. No. 6, 2004 SCC 4, 234 D.L.R. (4th) 257, 315 N.R. 201, J.E. 2004-350, 183 O.A.C. 1, 180 C.C.C. (3d) 353, 16 C.R. (6th) 203, 46 R.F.L. (5th) 1, REJB 2004-53164, 60 W.C.B. (2d) 81; Dabirian v. Dabirian, 2004 CanLII 13518 (ON CA), [2004] O.J. No. 846, 184 O.A.C. 193, 1 R.F.L. (6th) 132 (C.A.); Louie v. Lastman, 2001 CanLII 2843 (ON CA), [2001] O.J. No. 4941, 208 D.L.R. (4th) 380, 152 O.A.C. 341, 110 A.C.W.S. (3d) 439 (C.A.); N. (D.) (Litigation guardian of) v. Children's Aid Society of Niagara Region, [2004] O.J. No. 5085, 136 A.C.W.S. (3d) 300 (C.A.); Novoa v. Molero, [2007] O.J. No. 4591, 2007 ONCA 800, 45 R.F.L. (6th) 267; P. (A.) v. D. (L.), 2000 CanLII 11381 (QC CA), [2000] J.Q. no 5221, [2001] R.J.Q. 16, 195 D.L.R. (4th) 354, J.E. 2001-54, [2001] R.D.F. 12, 101 A.C.W.S. (3d) 756 (C.A.); R. v. O'Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, [1995] S.C.J. No. 98, 130 D.L.R. (4th) 235, 191 N.R. 1, [1996] 2 W.W.R. 153, J.E. 96-64, 68 B.C.A.C. 1, 103 C.C.C. (3d) 1, 44 C.R. (4th) 1, 33 C.R.R. (2d) 1, 29 W.C.B. (2d) 152; R. (C.) v. Children's Aid Society of Hamilton, 2004 CanLII 58384 (ON SC), [2004] O.J. No. 3301, [2004] 4 C.N.L.R. 1, 8 R.F.L. (6th) 285, 132 A.C.W.S. (3d) 1107 (S.C.J.); U. (C.) v. McGonigle, [2003] A.J. No. 238, 2003 ABCA 66, 223 D.L.R. (4th) 662, [2003] 6 W.W.R. 629, 13 Alta. L.R. (4th) 1, 327 A.R. 25, 34 R.F.L. (5th) 181, 121 A.C.W.S. (3d) 298; United States v. Burns, [2001] 1 S.C.R. 283, [2001] S.C.J. No. 8, 2001 SCC 7, 195 D.L.R. (4th) 1, 265 N.R. 212, [2001] 3 W.W.R. 193, J.E. 2001-458, 148 B.C.A.C. 1, 85 B.C.L.R. (3d) 1, 151 C.C.C. (3d) 97, 39 C.R. (5th) 205, 81 C.R.R. (2d) 1, 48 W.C.B. (2d) 400; Winnipeg Child and Family Services v. W. (K.L.), [2000] 2 S.C.R. 519, [2000] S.C.J. No. 48, 2000 SCC 48, 191 D.L.R. (4th) 1, 260 N.R. 203, [2001] 1 W.W.R. 1, J.E. 2000-1923, 150 Man. R. (2d) 161, 78 C.R.R. (2d) 1, 10 R.F.L. (5th) 122, 100 A.C.W.S. (3d) 77
Statutes referred to
Children's Law Reform Act, R.S.O. 1990, c. C.12 [as am.], ss. 24(1), (2)(b), 30, (1), (2), (3), (4), (12), (13), (14) Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 89(3.1) [as am.], 112 [as am.] Courts of Justice Amendment Act, 1987, S.O. 1987, c. 1 Courts of Justice Statute Law Amendment Act, 1994, S.O. 1994, c. 12, s. 37 Divorce Act, R.S.C. 1985., c. 3 (2nd Supp.) [as am.] [page370] Family Statute Law Amendment Act, 2009, S.O. 2009, c. 11 Judicial Review Procedure Act, R.S.O. 1990, c. J.1, s. 6(2) [as am.]
Rules and regulations referred to
Child Support Guidelines, O. Reg. 391/97, s. 7 [as am.] Family Law Rules, O. Reg. 114/99, rule 4, (7), (12)
Treaties and conventions referred to
Convention on the Rights of the Child, Can. T.S. 1992, No. 3, arts. 3, (1), 12, (1), (2)
Authorities referred to
Carthy, James J., W.A. Derry Millar and Jeffrey G. Cowan, Ontario Annual Practice 2010-2011 Edition (Aurora: Canada Law Book, 2010) Office of the Children's Lawyer, Intake Criteria for Provision of Custody/Access Cases
Katherine Kavassalis and Martha Héder, for appellant. Martha Mackinnon and Andrea Gatti, for intervenor Justice for Children and Youth. No one appearing for respondents.
Overview
The judgment of the court was delivered by
WEILER J.A.: -- Overview
[1] When a judge is of the opinion that independent legal representation for a child is required or the judge requires further information concerning the child's needs in a custody dispute, the general practice is to make an order of referral to the Office of the Children's Lawyer ("OCL") requesting the Children's Lawyer to provide such services under ss. 89(3.1) and 112 of the Courts of Justice Act, R.S.O. 1990, c. C.43 ("CJA"), as she deems appropriate. In the cases under appeal, a Superior Court judge exercised the court's parens patriae jurisdiction and ordered the OCL to act.
[2] The OCL appeals these orders and asks that they be set aside. The OCL asks that an order in the standard form requesting her involvement be substituted or held to be the prevailing order in those appeals where an order in the standard form requesting the OCLs to act was made either concurrently with or subsequent to the order in the exercise of the parens patriae jurisdiction. [page371]
[3] For ease of reference, ss. 89(3.1) and 112 of the CJA are reproduced below:
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. @7 . . . . .
112(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.
(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.
(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.
(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.
The Arguments on Appeal
[4] The OCL submits that the Superior Court judge who made the six orders from which appeal is taken exceeded his jurisdiction and erred in invoking the parens patriae jurisdiction of the Superior Court. The Superior Court judge ought to have requested a legal representative pursuant to s. 89(3.1) or a social work report from the OCL pursuant to s. 112 of the CJA and, if that request was refused, asked the OCL to reconsider its refusal or to consider other alternatives. The OCL's position is further that the Superior Court judge could only invoke the court's parens patriae jurisdiction to fill a legislative gap which, the OCL submits, does not exist in light of ss. 89(3.1) and 112 of the CJA. Thus, the judge could not order the OCL to act.
[5] Even if the court had the power to exercise its parens patriae jurisdiction, the OCL submits that that jurisdiction ought not to be exercised as, to do so would open the "floodgates" and the OCL would be unable to function properly. At the oral hearing before us, the OCL sought leave to introduce fresh evidence in the form of an affidavit by Ms. Denal Moyal, the legal director of the Personal Rights Department and acting Children's Lawyer at the time. The intervenor, Justice for Children and Youth ("JFCY"), consented to the affidavit being [page372] filed as fresh evidence. In her affidavit, Ms. Moyal deposed that between April 1, 2009 and August 25, 2010, the OCL received 5,548 referrals from judges across Ontario. Of those, 1,873 were from the Ontario Court of Justice and 3,673 were from the Ontario Superior Court of Justice. Five hundred and eighty-two of the 5,548 referrals came from judges sitting in Northern Ontario. Sixty-eight per cent of these orders were made by Ontario Court of Justice judges. During this same period, the OCL accepted a total of 3,432 cases across Ontario. Based on this affidavit, the thrust of the OCL's argument appears to be that if Superior Court judges do have parens patriae jurisdiction and exercise it in the manner the Superior Court judge has done in these cases, the OCL would be ordered to act in so many cases that it would no longer be able to meet the requests made by Ontario Court of Justice judges (who do not have parens patriae jurisdiction), particularly those in Northern Ontario.
[6] JFCY takes no position on the particular cases before the court. Having regard to the United Nations Convention on the Rights of the Child, Can. T.S. 1992, No. 3, to which Canada is a signatory, JFCY takes the position that children have a right to be heard in the legal proceedings that affect them and that it is the duty of the court to ensure this happens. JFCY acknowledges that the right to be heard does not mean that children have a right to legal representation in all cases.
[7] JFCY's position is aligned with that of the OCL to the extent that, even in exigent circumstances, JFCY submits that a judge of the Superior Court must request the involvement of the OCL. If that request is refused, the judge may request reconsideration by the OCL or consider other practicable alternatives. However, after considering the practicability of other avenues, JFCY submits that the judge may make an order in the exercise of the Superior Court's parens patriae jurisdiction, either ordering the OCL to act or appointing counsel to be paid for by the Attorney General if the child's parents are unable to pay.
[8] JFCY submits that when the OCL refuses to assist the court, a gap in the CJA exists because the Act does not specify how the child is to be heard. In addition, JFCY argues that there is a gap in the legislation because no statutory right of appeal exists from a decision of the OCL. In the situation where the OCL refuses to act, it is incumbent on the judge to consider what other steps are appropriate so that the child can be heard. Where no other statutory or procedural avenues for obtaining input from the child are practicable, and the proceeding is in the Superior Court, JFCY submits that the court can exercise its parens patriae jurisdiction and order legal representation for the [page373] child. JFCY relies on a combination of the Convention, existing legislation and jurisprudence to the effect that the court's parens patriae jurisdiction is founded on the necessity for the court to act, from time to time, for the protection of vulnerable persons and in their best interests. Just as the common law has evolved to protect the interests of third parties in the possession of documentary information through O'Connor applications, [^1] JFCY submits that a similar procedure could evolve to protect the best interests of children who are affected parties in their parents' custody disputes and to give them an opportunity to be represented by counsel.
[9] Alternatively, JFCY submits that judicial review of the OCL's decision may lie if there is evidence, for example, that she has acted unfairly. In support of its position, JFCY relies by analogy on the decision of the Supreme Court of Canada in Beson v. Newfoundland (Director of Child Welfare), 1982 CanLII 32 (SCC), [1982] 2 S.C.R. 716, [1982] S.C.J. No. 95, at pp. 724-26. [^2]
[10] Finally, JFCY observes that while the application of a court's discretionary jurisdiction has traditionally been limited to circumstances where there is a gap in the legislative scheme, recent case law suggests that a legislative gap may not always be a necessary precursor to the exercise of the court's parens patriae jurisdiction. In A. (A.) v. B. (B.) (2007), 2007 ONCA 2, 83 O.R. (3d) 561, [2009] O.J. No. 2 (C.A.), at para. 40, Rosenberg J.A. held that he would not foreclose the possibility that the exercise of the parens patriae jurisdiction did not depend upon a legislative gap if that was the only way to meet the paramount objective of the Children's Law Reform Act, R.S.O. 1990, c. C.12, namely, the best interests of the child. [page374]
Discussion and Analysis
[11] The overarching issue on this appeal is whether it was appropriate for the court to exercise its parens patriae jurisdiction to order the OCL to investigate or to represent the children. For the reasons that follow, I would hold that it was not appropriate for the judge to exercise the court's parens patriae jurisdiction.
The values in the Convention on the Rights of the Child inform the interpretation of legislation concerning children
[12] The articles of the Convention applicable to this appeal are arts. 3 and 12. Article 3(1) provides that in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. Article 12(1) provides for the expression of a child's views, while art. 12(2) further specifies that a child shall be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly or through a representative or an appropriate body. The child must, however, be "capable of forming his or her own views". [^3]
[13] The Convention was signed by Canada on May 28, 1990 and ratified on December 13, 1991. The last amendments relating to the discretion of the OCL to act in the CJA were enacted in 1994, after Canada ratified the Convention in 1991.
[14] Under Canadian law, a treaty that has been signed and ratified by the executive still requires incorporation through domestic law to be enforceable. Although the Convention has not been specifically incorporated into domestic law and its provisions therefore have no direct application in Canadian law, the values reflected in the Convention can help to inform the contextual approach to statutory interpretation and judicial review: see Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817, [1997] S.C.J. No. 39, at paras. 69-70. Cases in which the Convention has been used as an aid to statutory interpretation include Winnipeg Child and Family Services v. W. (K.L.), 2000 SCC 48, [2000] 2 S.C.R. 519, [2000] S.C.J. No. 48; United States v. Burns, 2001 SCC 7, [2001] 1 S.C.R. 283, [2001] S.C.J. No. 8; Louie v. Lastman, 2001 CanLII 2843 (ON CA), [2001] O.J. No. 4941, 208 D.L.R. (4th) 380 (C.A.); [page375] P. (A.) v. D. (L.), 2000 CanLII 11381 (QC CA), [2000] J.Q. no 5221, [2001] R.J.Q. 16 (C.A.); U. (C.) v. McGonigle, 2003 ABCA 66, [2003] A.J. No. 238, 223 D.L.R. (4th) 662 (C.A.); Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), 2004 SCC 4, [2004] 1 S.C.R. 76, [2004] S.C.J. No. 6; and C. (A.) v. Manitoba (Director of Child and Family Services), 2009 SCC 30, [2009] 2 S.C.R. 181, [2009] S.C.J. No. 30.
Existing jurisprudence holds that it is within the discretion of the OCL to decide whether to become involved
[15] The Superior Court judge who made the six orders is an experienced, conscientious judge. He would certainly have been aware of this court's decisions with respect to ss. 89(3.1) and 112 of the CJA. In Dabirian v. Dabirian, 2004 CanLII 13518 (ON CA), [2004] O.J. No. 846, 1 R.F.L. (6th) 132 (C.A.), this court held that, pursuant to ss. 89(3.1) and 112 of the CJA, the court has jurisdiction to request the OCL's involvement but the OCL retains the discretion to decline to act. In that case, the court set aside a trial judge's order requiring the OCL to prepare a report by a worker other than the one who had prepared an earlier report in the case. Similarly, in Bubovich v. Bubovich, 2005 CanLII 39323 (ON CA), [2005] O.J. No. 4528, 19 R.F.L. (6th) 15 (C.A.), this court set aside an order of the judge ordering the OCL to prepare an update of its earlier report and held that an order requesting an update should have been made. More recently, in Novoa v. Molero, 2007 ONCA 800, [2007] O.J. No. 4951, 45 R.F.L. (6th) 267 (C.A.), this court again held that both ss. 89(3.1) and 112 of the CJA are permissive, not imperative, and accordingly, the OCL has the discretion to decide whether to cause an investigation to be made and whether to report and make recommendations to the court on the matters of custody and access. The court also considered whether the OCL had an obligation to provide reasons in the exercise of its discretion and concluded that no such obligation exists. It added that no statutory right of appeal exists from the decision of the OCL.
[16] These decisions do not specifically consider the values in the Convention. As I indicate below, however, the CJA is not the only legislative source that implements the values in the Convention.
Existing legislation implements the values in the Convention and reinforces the conclusion that the OCL has discretion as to whether or not to act
[17] In deciding whether, in accordance with the Convention, a mechanism exists for the child's voice to be heard in proceedings affecting him or her, the CJA should not be considered in isolation. [page376]
[18] The Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) requires that in making an order respecting custody and access that the court take into consideration only the best interests of the child of the marriage "as determined by reference to the condition, means, needs and other circumstances of the child". Section 24(1) of the Children's Law Reform Act ("CLRA") requires the court to determine applications respecting custody and access of children on the basis of the best interests of the children. Pursuant to s. 24(2)(b) of the CLRA, in determining the best interests of a child, the court must consider the child's views and preferences if these can be reasonably ascertained. Jurisprudence respecting the making of an ancillary custody or access order under the Divorce Act is in conformity with the more specific legislative requirement that the child's view and preferences be considered in the CLRA.
[19] Section 30(1) of the CLRA provides that a court "may appoint a person who has technical or professional skill to assess and report to the court on the needs of the child and the ability and willingness of the parties or any of them to satisfy the needs of the child". The court may make such an order on its own motion. The person appointed should be one that the parties both agree on, if possible, and must be a person who has consented to act and to report to the court within the time period specified. The parties are required to pay the fees and expenses of the person appointed in the proportion the court specifies, but the court may relieve a party from responsibility for payment where it is satisfied that payment would cause serious financial hardship: CLRA ss. 30(2), (3), (4), (12), (13) and (14).
[20] Rule 4(7) of the Family Law Rules, O. Reg. 114/99 provides that where a child is not a party to a proceeding, the court may authorize a lawyer to represent the child and the child then has the rights of a party unless the court orders otherwise. The rule is silent as to the method of payment for the lawyer. Rule 4(12) provides that if the lawyer acting for a child wishes to be removed from the case, the lawyer must provide notice to the OCL as well as to the child.
[21] Viewed as a whole, existing legislation and jurisprudence in Canada have already reflected the values in the Convention. The fact that other avenues exist for children to be heard in proceedings affecting them reinforces the conclusion that the provisions in the CJA respecting the OCL are discretionary. The court's existing jurisprudence respecting the interpretation of the OCL's role under ss. 89(3.1) and 112 of the CJA does not require reconsideration. [page377]
[22] The existing legislation makes it clear that the OCL is not the only resource available to the court in dealing with a custody and access dispute and that independent representation of a child or a report concerning the child is not necessarily dependent on the resources of the parents. It is less clear, however, whether a judge may order the Attorney General to pay if a judge relieves both parties from responsibility for payment on account of serious hardship. In this regard, the submission of JFCY respecting the evolution of the common law in O'Connor applications is instructive.
Assuming, without deciding, that a Superior Court judge has the power to order the OCL to act outside the CJA by exercising the court's parens patriae jurisdiction, Superior Court judges should respect the legislative scheme in the CJA
[23] The Superior Court's power to exercise its inherent parens patriae jurisdiction is not specifically ousted by s. 89(3.1) or s. 112. Parens patriae is the power of the court to act in the stead of a parent for the protection of a child. Prior to the amendment to the Courts of Justice Amendment Act, 1987, S.O. 1987, c. 1, in 1987, s. 125 of the CJA required the Official Guardian to do an investigation and report to the court in every divorce action in which there was a child of the marriage, regardless of whether there was a claim made for custody or access to the child or whether there was any dispute respecting custody or access. Hansard records that the amendments to the Act meant that an automatic Official Guardian's report would no longer have to be filed. There is no discussion as to what happens in the event that the Official Guardian, now the OCL, refuses to act: see Courts of Justice Statute Law Amendment Act, 1994, S.O. 1994, c. 12, s. 37 and 1999, c. 12, Sch. B, s. 4(1) respectively. Similarly, when the provisions giving the Children's Lawyer the discretion to act as the legal representative of a child were introduced and later amended, there is no discussion in Hansard as to what is to happen in the event that representation is refused. Nor is there any discussion of the Superior Court's parens patriae power.
[24] Assuming, without deciding, that absent words clearly ousting the Superior Court's inherent parens patriae jurisdiction the Superior Court has the power to order the OCL to act outside the CJA, it is reasonable to assume that the legislature intended that judges would respect the legislative scheme and not create a parallel procedure. To order and not request the OCL to act ignores the discretion embodied in the wording of the [page378] CJA and the underlying reason for that discretion. The OCL has limited resources and it, not the court, is in the best position to decide when and how to utilize its limited resources. Failure to respect the legislative scheme by pre-empting the exercise of the OCL's discretion is an error in principle.
The parens patriae jurisdiction must be exercised in a principled manner; it should not be exercised when other effective alternative remedies exist; it should not be used to second guess or to pre-empt a decision within the mandate of the OCL
[25] In E. (Mrs.) v. Eve, 1986 CanLII 36 (SCC), [1986] 2 S.C.R. 388, [1986] S.C.J. No. 60 ("Re Eve"), the Supreme Court of Canada reviewed the history and application of the parens patriae jurisdiction and held, at p. 427 S.C.R., that "[t]hough the scope or sphere of operation of the parens patriae jurisdiction may be unlimited, it by no means follows that the discretion to exercise it is unlimited. It must be exercised in accordance with its underlying principle. Simply put, the discretion is to do what is necessary for the protection of the person for whose benefit it is exercised." Earlier in its reasons, the court held, at p. 426 S.C.R., that parens patriae jurisdiction is "founded on necessity, namely the need to act for the protection of those who cannot care for themselves". The court concluded, "[T]he categories under which the jurisdiction can be exercised are never closed . . . the jurisdiction is of a very broad nature and . . . can be invoked in such matters as custody, protection of property, health problems, religious upbringing and protection against harmful associations".
[26] Since the Supreme Court's decision in Re Eve, courts have struggled to delineate when the exercise of the Superior Court's parens patriae jurisdiction is appropriate. In N. (D.) (Litigation guardian of) v. Children's Aid Society of the Niagara Region, supra, the court held it was proper for the Superior Court applications judge to decline jurisdiction on judicial review of the order of the Ontario Court of Justice given the availability of an effective alternative remedy in the proceedings before the provincial court. In that context, this court observed, at para. 3, that the Superior Court "will only exercise its parens patriae jurisdiction, whether by of habeas corpus or otherwise, where there is a gap in the legislative scheme". The brief endorsement of the court in N. (D.) does not indicate there was any argument on the question of whether the court could only exercise its parens patriae jurisdiction when a gap in the legislation exists. The responding party to the Children's Aid Society's appeal was self represented. Having regard to these circumstances, it is perhaps not [page379] surprising that in R. (C.) v. Children's Aid Society of Hamilton, 2004 CanLII 58384 (ON SC), [2004] O.J. No. 3301, 8 R.F.L. (6th) 285 (S.C.J.), Czutrin J. came to the conclusion that reading the Court of Appeal's recent decisions in such a manner as to suggest that a legislative gap was the only method by which the parens patriae jurisdiction could be exercised was simply too narrow. At the same time, he made it clear that the exercise of the discretion should not be the first "go to" solution but, in most cases, the last. He concluded, at para. 129:
Parens patriae jurisdiction is not meant, nor do I suggest by the facts of this case, to open up a general right to go before a Superior Court judge, to review the actions of the Children's Aid Society after Crown wardship in every case. In fact, it should be discouraged and be a remedy of last resort in most cases. However, in the proper circumstances where the society has not acted fairly or otherwise met the needs of children, the inherent parens patriae jurisdiction of a Superior Court judge should not be ousted automatically. (Emphasis added)
[27] The question of when it is appropriate for a Superior Court judge to exercise the court's parens patriae jurisdiction also arose in A. (A.) v. B. (B.), a case decided after N. (D.), and one in which the court had the benefit of argument from an amicus curiae. The issue before the court in A. (A.) v. B. (B.) was whether the non-biological parent of a child born to a couple in a lesbian relationship could also be recognized as a mother of the child. The court first considered whether the Superior Court's parens patriae jurisdiction needed to be exercised to rescue a child in danger. Having concluded that this was not the case, Rosenberg J.A. turned to the question of whether a gap in the legislation existed. At para. 27, Rosenberg J.A. held:
The court's inherent parens patriae jurisdiction may be applied to rescue a child in danger or to bridge a legislative gap. This is not a case about a child being in danger. If the parens patriae authority were to be exercised it would have to be on the basis of a legislative gap. (Emphasis added)
[28] The court agreed with the application judge that the wording of the CLRA did not enable the court to make a declaration that the child had a second mother. The issue then was whether the court's parens patriae jurisdiction could be exercised to fill a legislative gap or whether the CLRA was intended to be a complete code with the result that any gap was deliberate. Having regard to the purpose and scheme of the Act, which was the best interests of the child, the court held that it was contrary to the child's best interests to be deprived of the legal recognition of the parentage of one of its mothers, that a legislative gap [page380] existed, and that the only way to fill that gap was to exercise its parens patriae jurisdiction and make the declaration sought. In his reasons on behalf of the court, Rosenberg J.A. referred to the comments of Czutrin J. in R. (C.) and refused to foreclose the possibility that the court could exercise its parens patriae jurisdiction in the absence of a gap in the legislation if that was the only way to meet the legislation's paramount objective, which, as he had stated earlier, was the best interests of the child.
[29] The discussion in A. (A.) v. B. (B.) illustrates the principle that the parens patriae jurisdiction can be used to fill a legislative gap. Another principle emerges from the discussion in A. (A.) v. B. (B.), namely, that the exercise of the parens patriae jurisdiction to second guess a decision within the mandate of the statutory authority would be an inappropriate exercise of parens patriae jurisdiction, with the exception, perhaps, of judicial review, if appropriate: see para. 30, citing the reasons of Lord Wilberforce in A. v. Liverpool City Council, [1981] 2 All E.R. 385, [1982] A.C. 363 (H.L.), at pp. 388-89 All E.R., to the effect that the court's general inherent power is always available to fill gaps or to supplement the powers of the statutory authority but the court should not supervise the exercise of discretion within the field committed by statute to the particular authority, except perhaps by judicial review where appropriate. See, also, para. 36 respecting Beson.
Applying the principles respecting the exercise of the parens patriae power: The appeals should be allowed
[30] The exercise of the court's parens patriae jurisdiction is a very fact-specific exercise. Having regard to the Discussion and Analysis above, I turn to the specific appeals before the court.
[31] The facts below are taken from the OCL's factum as well as the transcripts of the proceedings in its compendium.
Bhajan v. Bhajan C51273
[32] This is an appeal of the order made October 20, 2009, wherein the OCL was ordered "to appear and represent the interests of the child". The mother, who was her six-year-old son's primary caregiver, took the child with her to Trinidad and overstayed three months. At the time, she was pregnant. The father obtained an order requiring the mother to return the child to Ontario and an interim order for sole custody. The mother was granted access but could only exercise that access in the presence of a security guard.
[33] On the return of the father's motion for custody in October, the mother had had her baby. The parties disputed whether [page381] the mother's overstay was due to valid medical issues connected to her second pregnancy and her alleged consequent inability to travel, or whether she had abducted the child. The father alleged that the mother said things to the child in an attempt to alienate him from the father. The child whose custody was in issue had not seen his mother for over two months. The mother alleged that the child was suffering harm as a result of the change to his custody. Although six years old, he had recently started wearing training diapers again.
[34] The Superior Court judge found that this was a case that involved more than an assessment of what the mother and father had to say. Issues of custody and access could not be resolved without input and assistance from an independent, objective and experienced voice. An order requesting the involvement of the OCL had been made by a different judge a month earlier. However, as neither party had filled out the intake form required before the OCL would act, nothing had happened.
[35] The Notice to the Profession containing procedural directions to obtain a legal representative pursuant to s. 89(3.1) of the CJA or a social work report of the OCL pursuant to s. 112 of the CJA, found in the Ontario Annual Practice, states that each party to the litigation has ten days from the date of the court order requesting the OCL's involvement to complete and forward a separate intake form to the OCL's office: James J. Carthy, W.A. Derry Millar and Jeffrey G. Cowan, Ontario Annual Practice 2010-2011 Edition (Aurora: Canada Law Book, 2010) at pp. 120-22. The Notice further states:
If complete Intake Forms are not received within 10 days of the date of the Order, the Children's lawyer will determine no such services are appropriate and notify the court in writing forthwith, noting the failure of the party(ies) to comply with the Order.
The Children's Lawyer will not consider providing services in the same litigation matter to the subject minor children without a new order from the court requesting same.
[36] The Superior Court judge reviewed the authorities on parens patriae, including Beson, Re Eve and A. (A.) v. B. (B.). He made an order in the exercise of his parens patriae jurisdiction and a concurrent order in the standard form pursuant to the CJA. He explained his reasons as follows:
I don't intend to serve the child of this relationship ill and I do not intend to conclude that this court is hampered in exercising its parens patriae jurisdiction to rescue a child in danger. I am satisfied that the child in this case is, in fact, in danger -- in danger of parental alienation, in danger of not being able to see his mother in circumstances which, at present, are [page382] bordering on the unconscionable albeit, perhaps necessary, on a short term basis. I have no intention of failing to act to help a child who needs the court's protection who cannot speak for himself without the assistance of an independent, objective and expert assistant to assist the court by representing him and I have no intention of letting this matter slide. Counsel for the Office of the Children's Lawyer recommended that the matter take its ordinary course. So far, as I know, the parties have not yet filled out the form. If they fill out the form perhaps the Office of the Children's Lawyer -- they filled out the form now, of course, but had not filled out the form as required by the Order of Justice Kelly. Whether or not the Office of the Children's Lawyer chooses to provide their usual service is fine with me; if they choose to provide their usual service, so much the better. What I am ordering them to do is to consider my direction, as provided on the consent of the parties, but appear in court from now, and until relieved by the court, to assist the court with respect to every step in this case involving the child.
[37] Although the Superior Court judge considered the child to be in danger, the child was not in the kind of danger which would warrant intervention by the Children's Aid Society ("CAS"). In fact, as of the continuation of the motion, the CAS had investigated and found that CAS intervention was not warranted. The Superior Court judge indicated that this confirmed his opinion that the OCL was best suited to deal with the issues in this case.
[38] Unfortunately, the judge's reasons do not reflect another concern that motivated him. It is clear from the motion transcript, and the transcript of the continuation of the motion, that a central concern of the judge was the inability of the parties to find an alternative means by which the mother could exercise access. The parties had contacted a number of custody and access centres in Peel and Toronto, but could not even get an initial interview until almost a month from the date of the motion. Although the OCL told him it could not assist in this regard, the Superior Court judge was of the opinion that it could.
[39] The Notice to the Profession I have referred to states that, in addition to legal representation or an investigation and report, "in certain cases, professional services of a focused nature, limited to specific issues or to specific tasks" may be delivered. On October 26, 2009, the standard form order was accepted by the OCL.
[40] The Court of Appeal for Ontario granted a stay of the parens patriae order pending appeal on December 3, 2009.
[41] The Superior Court judge was concerned about the delay occasioned because the parties had not filled out the OCL's intake form, but it appears from the transcript that that omission had now been remedied.
[42] The Superior Court judge sought to bring himself within the rubric of A. (A.) v. B. (B.) by holding that the child was in [page383] danger although the recent CAS investigation had concluded that the child was not in need of protection or danger in that sense. Although not reflected in his reasons, the danger the Superior Court judge was concerned about was the danger to the child's emotional well-being because he was unable to see his mother owing to the administrative lacuna that made the order for supervised access impossible to carry out.
[43] The Superior Court judge's order in the exercise of his parens patriae jurisdiction was made prior to any consideration of the case by the OCL under the CJA and pre-empted the exercise of the OCL's discretion. The comments of the OCL's lawyer in court gave him reason to think it might decline to take the case. Nevertheless, he ought not to have pre-empted the OCL's statutory discretion by exercising his parens patriae jurisdiction and at the same time making a request in the standard form for the OCL to act. I would allow the appeal, set aside the mandatory order for representation made in the exercise of the court's parens patriae jurisdiction and confirm the standard form order requesting the OCL to act as the prevailing order.
[V.] v. [V.] C51316
[44] This is an appeal of the order made November 19, 2009, wherein the OCL was ordered "to represent the said children". The mother, who was the historical primary caregiver of the children, brought a motion for custody of her two children, aged seven and ten. The mother and father had a history of conflict. The mother alleged that the father was controlling and abusive. She and the children had moved to a shelter at one point, but the parties reconciled a year later, and she and the children moved back into the matrimonial home. Shortly thereafter, the parties got into a struggle over the mother's cellphone and the father called the police, alleging that she had hit him. The mother was charged with assault and was forced to leave the matrimonial home. The children remained in the home with the father. The mother was not permitted access to the children. Three weeks later, the mother brought a motion seeking custody and exclusive possession of the matrimonial home.
[45] The mother alleged that the father was attempting to alienate the children from her. The father was unrepresented. He said, "I'm not fluent in understanding the English language so it took me a longer time to read through the documents I received. I did understand from the documents that I was to come to court for a case conference on November 18 but did not know what exactly that meant." He requested that the case conference be postponed until he could find a lawyer to represent [page384] him and, in addition, asked the court to provide Tamil translation at each meeting to help him fully understand the proceedings.
[46] The Children's Lawyer had been asked by the court to attend. In ordering the involvement of the OCL, the Superior Court judge stated that he was relying on his reasons in Bhajan and the authorities cited in that case. Again, he found that there was a need for the assistance of an independent and impartial assessment to help the court decide what was best for the children.
[47] When the Children's Lawyer questioned why she was being ordered to act and advised that their intake staff would be willing to review any order requesting assistance that comes from the court, together with the parties' intake forms, the Superior Court judge pointed to the fact that the father professed not to understand English. Referring to the intake form the OCL requires that a party fill out prior to considering whether it will act, the Superior Court judge stated that "filling out the forms will be a nightmare" and that the time taken to fill out the forms is too long. There followed an exchange about whether or not the OCL requires both parties to fill out the form. The OCL maintained this was not the case. The Superior Court judge stated that he had been told many times that the OCL had declined to take a file because one side or the other side has not filled out the form within "x" number of days. Although the Superior Court judge eventually accepted the OCL's submission that only one form was required, he went on to find:
All right. I accept what you say as your policy. I also feel that this case should brook no delay and that I ought to require the Office of the Children's Lawyer starting now to look into this matter. There are young children. Mother is out of the house. I have no information from father who professes not to speak English. And delaying an investigation of such a matter is highly inappropriate. Children, vulnerable children, who are asking -- where one parent is asking for the court to intervene where the parties cannot agree themselves, the children may suffer by virtue of delay, and I am satisfied that this court is obliged to exercise its jurisdiction to protect children. It's the highest duty the court has in all of its responsibilities, the responsibilities of ensuring that children are properly cared for. That's the court's high responsibility and I will not -- unless I am corrected or reversed, I will not stop requiring the Office of the Children's Lawyer in proper cases to act with the dispatch necessary to deal with the inherent requirements of a case -- and on the face of it, this case requires immediate action -- for the court to be in a position to know what to do.
[48] The Court of Appeal for Ontario granted a stay of the Superior Court judge's mandatory order for OCL involvement pending appeal on December 3, 2009. Czutrin J. made an order in the standard form the same day, and the OCL accepted the case on December 7, 2009. [page385]
[49] I would hold that the Superior Court judge also erred in this appeal by pre-empting the discretion of the OCL. On the record before us, it was not impracticable to make an order in the usual form requesting the OCL to act.
[50] Item 5 of the OCL's Notice to the Profession states:
Within three weeks the OCL will review the order and the intake forms and advise the parties and the court (by facsimile or mail) whether the Children's Lawyer consents to become involved in the case and, if so, the type of professional service that will be provided.
[51] The presumptive administrative delay occasioned by the OCL's intake policy was not an appropriate basis for the Superior Court judge to exercise his parens patriae jurisdiction in this case. I would allow this appeal, set aside the order of the Superior Court judge appealed from and confirm the order in the standard form made by Czutrin J. requesting the OCL to act.
MacDonald v. MacDonald C51832
[52] This is an appeal of the order made February 18, 2010, wherein the OCL was ordered to "assist the court and represent the interests of the children". The mother had previously been granted temporary custody of the children, ages seven, two and one, by the Ontario Court of Justice (where custody/access proceedings were initiated) on January 11, 2010. She moved to a shelter with the children after she was charged with assaulting the father. On February 18, 2010, the mother's application for an order for exclusive possession of the matrimonial home was before the Superior Court judge. The evidence before the court was that the eldest child had special needs and had been attending a special needs school near the matrimonial home. The father alleged that the mother had anger management problems and that he had seen bruises on the arm of the two-year-old and the seven-year-old had complained to him of being yelled at and grabbed on his face by the mother. The Catholic Children's Aid Society ("CCAS") had recently become involved in the case.
[53] Having heard that the CCAS was involved, the judge asked his registrar to contact the CCAS to inquire whether a representative of the CCAS would attend at the hearing to assist the court with this matter. The CCAS indicated that it did not intend to attend.
[54] The Superior Court judge ordered the OCL to represent the children, finding as follows:
Now, here's the problem: if I do nothing, the children remain with the mother in a shelter, of which I know nothing. I don't know where the shelter is; I don't know who is there. The father states that the two year old child has apparent bruising on his body and that the seven year old child has [page386] been grabbed on his face by his mother. Now, I'm in no position to judge the truth of that bare representation. It's not in affidavit form; the father has no counsel. However, if I do nothing, if there is a real risk of harm to a two year old child, a one year old child, and a seven year old child as a result of anger problems and the Court does nothing, then the Court has failed utterly in it paramount obligation, that is to protect children.
I decline to do nothing. I don't have the choice to do nothing and I can do nothing sensible without having some assistance from somebody who is independent and objective. I don't have the option of calling the police; I don't have the option of going out and investigating. I don't have an investigator. Doing nothing is not an option, so with due respect, since I've considered the matter and concluded the Court has inherent jurisdiction in a case where the safety of children is involved, I did that which was necessary. I ordered the Children's Lawyer to represent the interest of the children and assist the Court[.]
[55] The Court of Appeal granted a stay pending appeal of the Superior Court judge's order on April 6, 2010. The OCL's factum states, "The case could not be considered by the OCL as no standard form order was received." In oral argument before us, the OCL also relied on the fact that, at the time, no issue of custody or access was before the court but simply an application for possession of the matrimonial home.
[56] Although there must be a custody or access dispute before the court for the OCL to investigate and report pursuant to s. 112(1) of the CJA, s. 89(3.1) respecting the appointment of a legal representative contains no such requirement. It simply 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 a proceeding." In any event, there was a custody proceeding before the Ontario Court of Justice.
[57] The OCL's Guideline, headed Intake Criteria for Provision of Custody/Access Cases, states:
The Office of the Children's Lawyer may not provide services in the following circumstances: @7 . . . . .
11.(a) One or both parties allege abuse and/or neglect and the local Children's Aid Society (CAS) is investigating or should be asked under the Child and Family Services Act to investigate the allegations; or (b) the CAS is or has been involved and has taken a position as to the custody/access arrangements[.]
[58] At the motion hearing, the OCL explained that if it felt that the children were in need of protection, it would have to report to the CAS, which would "stop the whole process [of the OCL's involvement] in any event". [page387]
[59] Having regard to the OCL's intake criteria and the comments of its representative in court, the Superior Court judge was aware that the OCL may have refused to take the case.
[60] The allegations before the Superior Court judge were indeed troubling. As the Supreme Court indicated in Re Eve and this court stated in A. (A.) v. B. (B.), the need to rescue a child is an appropriate exercise of the court's parens patriae jurisdiction. However, as the Superior Court judge noted, the father's allegations of excessive force by the mother against the children were unsworn. The court cannot act on unsworn evidence. The judge could have told the father this. He could also have told the father that a proceeding concerning possession of the matrimonial home was not a custody proceeding and that the issue of custody of the children was not before him. The Superior Court judge could have enquired whether the father had made the CCAS aware of his allegations and asked what other, if any, steps the father had taken based on his observation of the alleged bruise on his two-year-old son's arm and his eldest son's complaint. For example, had he sought an explanation from the mother? Had he taken his two-year-old son to the doctor and had him examined? Also, as the Superior Court judge had his registrar call the CCAS, the CCAS would have been alerted to the Superior Court judge's concerns as to their danger.
[61] The Superior Court judge ought to have dealt with the application on the evidence before him, at least on an interim basis, even if he was of the opinion that at a later date, when a permanent custody order was made, the mother might not have custody of the children. [^4] The evidence indicated the CCAS was involved and had chosen not to remove the children from the mother's care. Having regard to the interim custody order in favour of the mother, as well as the need of the eldest child to attend a special needs school and the fact that he had been attending such a school near the matrimonial home, would it not have been in the best interests of the eldest child to return to that school and to live in the matrimonial home on an interim basis pending any final outcome of the case? Was there no [page388] urgency in this regard? Would it not have been in all of the children's best interests not to live in a shelter but in familiar surroundings?
[62] I would simply set aside the order of the Superior Court judge.
B. (A.C.) v. B. (R.) C52167
[63] This is an appeal of the order made April 1, 2010, wherein the OCL was ordered to "investigate and report on the issue of custody and access of this child, or show cause within 30 days why it would not be appropriate for it to do so". The parties submitted minutes of settlement and requested an order respecting custody and access regarding their nine-year-old daughter. The agreement allowed for supervised access by the father at the discretion of the mother "depending on her (the child's) reaction to visits taking into consideration her wishes". The father, who had been found not criminally responsible for the murder of his own father, was a patient at Centre for Addiction and Mental Health and was subject to a detention order made by the Ontario Review Board. The Superior Court judge found that the information provided was insufficient to permit approval of the requested order. While there was nothing in the material filed that expressly stated that the child might be in danger, it may well be inferred from the history of the father and the terms of access. The Superior Court judge observed that the passage of Bill 133 (the Family Statute Law Amendment Act, 2009, S.O. 2009, c. 11) now required an applicant for custody or access to file an affidavit (Form 35.1) containing the applicant's proposed plan for the child's care and upbringing, information respecting the applicant's current or previous involvement in any family or criminal proceedings and any other information known to the person that was relevant to the court's decision. At paras. 10-11, he held:
There appears to be a legislative gap inherent in the process now in place. Where independent evidence of the best interests of a child is required, the court has no process available to it to obtain such evidence, lacking an investigatory arm or service, other than by requesting or requiring that such evidence be produced by the agencies generally responsible for protecting children.
It appears to me that the court must exercise its parens patriae jurisdiction in this case to ensure that the best interests of the child are protected.
[64] The Superior Court judge also issued a publication ban of the names of the parties.
[65] By this time, the issue of whether the Superior Court judge could order, as opposed to request the OCL to act, was the [page389] subject of appeal, with the OCL taking the position that he could not. The OCL refused to consider the case as no standard form order requesting its involvement was received. The parties requested and consented to a standard form order but the Superior Court judge declined to make it. A stay pending appeal was granted by the Court of Appeal for Ontario on July 16, 2010.
[66] The "danger" that the Superior Court judge was concerned about was not the kind of danger that required the exercise of the court's parens patriae jurisdiction; the court had available to it other means to obtain the information it sought. For the same reason, I would also hold that the Superior Court judge erred in concluding that there appeared to be a gap in the legislative process.
[67] There was a custody and access proceeding before the court that the parties had resolved and they were seeking a consent court order. I see no reason why the Superior Court judge could not have requested the OCL to act pursuant to s. 112 of the CJA, which, it will be recalled, provides that in a proceeding under the Divorce Act or the CLRA concerning custody or access, the Children's Lawyer may cause an investigation to be made at the request of the court, its own initiative or that of a party. As for the trial judge's reference to the Family Statute Law Amendment Act, 2009, I note that it is not a free- standing authority and that the governing legislation was the CLRA, to which s. 112 of the CJA applies.
[68] Accordingly, I would allow the appeal and in its place substitute an order in the standard form.
Goh v. Wen C52133
[69] This is an appeal of the order of the Superior Court judge dated May 3, 2010, wherein the OCL was ordered to "investigate and report". The parties in this case agreed that the OCL should be involved. The parties described their separation as "high conflict"; however, they continued to reside in the same house. The CAS had previously been involved. The children, ages 15 and 12, were responding negatively to the stress of the separation. The mother alleged that the father put the children under enormous pressure and that he tried to bribe them to take his side in the custody dispute. The father alleged that the mother had a temper and had been previously charged with assaulting her own mother. The children's pediatrician stated that the youngest child's behavioural problems were largely attributable to the stress in the home.
[70] The Superior Court judge held that the conflict between the parties in this case clearly involved a risk of harm to the [page390] children. He also found that the fact that it was a "conflict of longstanding" does not mean that it is not necessary to resolve it as soon as reasonably possible. He concluded that, for the reasons stated in B. (A.C.) v. B. (R.), it was necessary for the court to exercise its parens patriae jurisdiction.
[71] The OCL would not consider the case as no standard form order was received. The parties ended up settling without OCL input. A stay pending appeal of the Superior Court judge's order was granted by the Court of Appeal on June 3, 2010.
[72] This appeal appears to be moot. In any event, it was not necessary for the court to exercise its parens patriae jurisdiction as other alternatives existed. The Superior Court judge could have requested the OCL to investigate. The OCL's Notice to the Profession stipulates that prior to making an order requesting the involvement of the OCL, "Judges will consider the intake criteria established by the Children's Lawyer . . . ." There are a number of facts in this case which suggest that the parties might not meet the OCL intake criteria. For example: -- (5) A review of the case history indicates that there has been . . . protracted litigation with little possibility of resolution; -- (10) The child's situation would not be improved, e.g. . . . both parties reside in the matrimonial home; and, possibly -- (11) The CAS is or has been involved and has taken a position as to the custody/access arrangements.
[73] The Superior Court judge could have explained why he was requesting the OCL's involvement notwithstanding its guidelines. Alternatively, the Superior Court judge could have advised the parties that he wished to exercise his powers pursuant to s. 30 of the CLRA to appoint an expert to provide a custody and access assessment. The person appointed under s. 30 should be one that the parties both agree on if possible. I see no reason why the Superior Court judge could not have suggested the name of an expert to the parties if they could not agree on one. The consent of the expert to provide a report within the time frame sought by the court could then have been requested. As the parties appear to have some assets in the form of a house, the court could have made an order requiring them to pay for the expert's report.
[74] Bearing in mind the ages of the children, 15 and 12, their views would play a large part in the court's ultimate decision. It would also have been open to the Superior Court judge to order independent representation of the children pursuant to rule 4(7) of the Family Law Rules. [page391]
[75] Were this appeal not moot, I would set aside the Superior Court judge's order that the OCL represent the children.
Feldman v. Boue C52169
[76] This is an appeal of the order of the Superior Court judge dated May 4, 2010, wherein the OCL was ordered to "investigate and report". Another Superior Court judge had previously made an order in the standard form in October 2009, but the OCL refused to become involved. There is no indication in the record as to why. On February 3, 2010, a Superior Court judge again made an order requesting OCL involvement. The parties were advised that the case could not be considered without a recent standard form order. According to the Superior Court judge whose order is under appeal, the OCL took the position that the February 3 order was not sufficient for them to open a file. (Although it is unclear, the Superior Court judge's comment may have been an oblique reference to the Notice to the Profession stipulating that if an intake form is not received within ten days after an order requesting involvement is made, the OCL will not provide any service. The court then has to make a fresh order requesting involvement.) More than three months had passed since the original order and the Superior Court judge was of the opinion the children were suffering prejudice as a result of the delay. Therefore, again citing B. (A.C.) v. B. (R.), the Superior Court judge held it was necessary to exercise the court's parens patriae jurisdiction. The Superior Court judge made a further order on May 4, 2010, mandating the OCL to investigate and report and also made an order in the standard form on the same date.
[77] The OCL received one intake form. The case was refused by the OCL on May 14, 2010, after applying the usual intake criteria. The OCL's position was that it could not offer meaningful assistance as the children were older and the main issues between the parties were financial and parenting issues (i.e., payment under the Child Support Guidelines, O. Reg. 391/97 for s. 7 expenses, which parent would help with homework, etc.). A stay of the parens patriae order pending appeal was granted on June 3, 2010.
[78] There is very little information in the record about the facts of this case. The Superior Court judge again erred in principle by initiating a parallel procedure to circumvent the OCL's intake procedures and to preclude it from exercising its discretion meaningfully. Having regard to the comment in the OCL's factum that the children were older, he could have considered the making of an order for independent representation pursuant [page392] to rule 4(7) of the Family Law Rules or an order pursuant to s. 30 of the CLRA. Inasmuch as he did not do so, I would set aside the order made pursuant to the exercise of the court's parens patriae power.
Conclusion
[79] These appeals did not require the court to engage in a theoretical discussion about whether the Superior Court's parens patriae power could be used to order the OCL to act. Assuming, without deciding, that Superior Court judges can, in the appropriate circumstances, exercise their parens patriae jurisdiction to order the OCL to act, that jurisdiction ought not to have been exercised in these six appeals. The Superior Court judge ought to have respected the structure of ss. 89(3.1) and 112 in the CJA, which give the OCL discretion in considering requests for their involvement. He ought not to have circumvented the existing statutory structure for engaging the OCL. Prior to exercising his parens patriae jurisdiction to make an order, it was incumbent on the Superior Court judge to consider and avail himself of the other available avenues for assistance that were responsive to the specific factual problems before him. Accordingly, I would allow the appeals in the manner indicated.
[80] I wish to thank JFCY for their helpful intervention.
[81] A costs order is not appropriate.
Appeals allowed.
Notes
[^1]: In R. v. O'Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, [1995] S.C.J. No. 98, the Supreme Court of Canada recognized that in a criminal proceeding, the production and disclosure of third party records to the defence had the potential of adversely affecting the rights and interests of non-parties, particularly vulnerable complainants of crime. The court addressed this concern by allowing these affected persons to call evidence, cross-examine witnesses, make submissions and otherwise participate in the application for the production of third party records. Since the O'Connor decision, in situations where allowing the third party to be self-represented would not serve the administration of justice, the court has exercised its discretion to appoint counsel to advocate for that party's interests.
[^2]: See, also, this court's decision in N. (D.) (Litigation guardian of) v. Children's Aid Society of the Niagara Region, [2004] O.J. No. 5085, 136 A.C.W.S. (3d) 300 (C.A.), in which the Superior Court declined to grant leave under s. 6(2) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1. This court held there was no appeal from such a refusal.
[^3]: Similarly, in custody and access proceedings in Canada, the court is required to consider the views and preferences of the children involved where these can be reasonably ascertained.
[^4]: The fact that Toronto does not have a Unified Family Court and that jurisdiction is split between the Ontario Court of Justice and the Superior Court makes it more difficult for some family matters to be dealt with efficiently. In a Unified Family Court, it is quite possible that at the same time as the interim custody order was made, the question of possession of the matrimonial home would also have been resolved on an interim basis. It is also possible that the court record concerning the CCAS proceeding would have been available.