COURT OF APPEAL FOR ONTARIO

CITATION: Fiorito v. Wiggins, 2014 ONCA 603

DATE: 20140820

DOCKET: M43885 (C57453)

Pardu J.A. (In Chambers)

BETWEEN

Anna Maria Fiorito

Applicant (Appellant in Appeal)

and

Jefferson Ross John Wiggins

Respondent (Respondent in Appeal)

Harold Niman and Donna A. Wowk, for the applicant

Brian Ludmer, for the respondent

Heard: August 5, 2014

On motion to appoint the Children’s Lawyer pursuant to s. 89 of the Courts of Justice Act.

ENDORSEMENT

[1] The appellant moves for an order requesting the appointment of the Children’s Lawyer to act on behalf of three children, aged 12, 11 and 10 in this appeal. She submits that the Children’s Lawyer could engage the services of an expert to evaluate the children, and that such a report, together with submissions on behalf of the children, could be of assistance to the court on this appeal.

[2] The trial judge found that the mother had engaged in an unremitting course of attempting to poison the children against their father. This was profoundly harmful to the children. He qualified the mother’s conduct as amounting to serious emotional abuse of the children. The girls were becoming unreasonably estranged from their father. The trial judge found that the mother empowered the children to behave in an abusive and disrespectful manner towards their father.

[3] A finding of contempt was insufficient to persuade the mother to change her behaviour, and finally the judge ordered a transfer of custody to the father, over the strong objections of the children, and granted access to the mother only in the company of a child therapist for an hour and a half once a week. Evidence filed on this motion shows that the relationship of the children with their father has markedly improved, but that they still regress after contact with the mother or her extended family. The trial judge expressly left open the possibility of a variation to increase the children’s time with their mother if she could demonstrate that she had ceased to engage in the sabotage of the father’s relationship with his daughters. The children continue to see a therapist weekly, and are interviewed by a Children’s Aid Society worker once or twice each month. The Children’s Aid Society supports continued residence of the children with their father.

[4] The respondent opposes the involvement of the Children’s Lawyer, on the ground that the children have already been assessed by multiple professionals over the course of protracted litigation and two five week trials. He submits that yet another assessment is unnecessary and will distort the appeal process. If the children take the position through counsel that they want to live with their mother, he will be obliged to respond with fresh evidence demonstrating that these wishes are the product of pressure and influence by the mother, who continues to try to undermine his relationship with his daughters. An appeal court is ill suited to resolution of these factual issues. The change of custody took place at the end of June 2013, and this motion is brought for the first time more than a year later. Appointment of the Children’s Lawyer will delay hearing of the appeal.

[5] The mother submits that granting custody to the father was contrary to the children’s best interests, and contrary to their wishes. She submits that the children need someone neutral, independent and unburdened by conflict to speak on their behalf.

[6] I begin with the observation that the focus of the appeal will be whether the trial judge erred in transferring custody as he did. Custody decisions are owed a high degree of deference. Appellate courts do not have the advantages of a trial judge in making findings of fact upon contradictory evidence, as most assuredly would ensue if fresh evidence were admitted in this case. Most requests for assistance from the Office of the Children’s Lawyer come from trial courts, for this reason. As pointed out in B (A.C.) v. B. (R.), 2010 ONCA 714, over a nearly 17 month period during which 5548 referrals were made to the Office of the Children’s Lawyer, all but two came from the Superior Court of Justice and the Ontario Court of Justice. Section 112(1) of the Courts of Justice Act provides that 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. A report may be filed as evidence, and the author may be cross-examined. If counsel from the Office of the Children’s Lawyer appears on the appeal, his or her role would be as advocate (Strobridge v. Strobridge (1994), 1994 875 (ON CA), 4 R.F.L. (4th) 169 (Ont. C.A.), making submissions on the record before the court and arguing that the trial judgment should be upheld or reversed. If, as seems likely, the children take the position they want to live with their mother, counsel for the children would in large part be mirroring the submissions I would expect from the mother.

[7] But for the appointment of the Children’s Lawyer, this appeal could be perfected within weeks. If the Children’s Lawyer were to undertake an investigation of any depth at all in this highly complex family situation, it would take months. Anything less would risk providing a superficial momentary snapshot of the children’s situation. Building a rapport with these children and sorting out anew the degree to which their wishes are the product of parental pressures could take a substantial period of time. The trial judge had the advantage of ten weeks of trial time with these parties, and the benefit of the evidence of professionals and others who have interacted extensively with the children.

[8] It may be that the children would have to be investigated separately, given the suggestions on the evidence that the oldest child is more aligned with the mother, and influences the others to take the same position. It may be that the children have different views and that counsel for the children would have to take different positions for different children.

[9] These children have been exposed to countless therapeutic and social work interventions since separation in 2008. Their behaviour during therapy has been influenced by parental intervention between visits and tailored to accord with a parent’s position. A partial history of professional involvement with these children includes the following:

• Dr. Schnayer performed two custody assessments. He indicated in his first report of May 8, 2009, that the children were at high risk of emotional harm because of the high level of parental conflict. He suggested counselling to restore the father-daughter relationships, and in October 2010 reported that there was no reason the children should not have a normal relationship with their father.

• Mark Donlon, a parenting coordinator, attempted to implement access arrangements but was unable to do so because the mother did not agree.

• Katherine Beacroft is a social worker at the Windsor Catholic School Board, and saw the children over a five month period.

• Allison McKinnon supervised access by the father, and observed negative changes in the children’s behaviour over time.

• The Children’s Aid Society opened a file on this family on July 4, 2008, and over the years have conducted numerous investigations of the family. Allegations of abuse and neglect made against the father by the mother have been rejected as unfounded. At least five different family service workers have dealt with this family. The Children’s Aid Society continues to assess the children and see them once or twice each month.

• Dr. Lee and Dr. Ricciardi have had long involvement in counselling the children, and Dr. Ricciardi continues to see them weekly.

[10] Despite the conflict to which the children have been exposed, they seem to be doing well. Recent reports from their school suggest that they are doing well on academic, social and emotional levels. The Children’s Aid Society has also expressed the view that they are doing well.

[11] At no point prior to this motion has any party requested that the Children’s Lawyer should be involved at any stage of this litigation, ongoing since separation in 2008.

[12] In the end, I conclude that whatever advantages involvement of the Children’s Lawyer might have for this case are outweighed by the disadvantages.

[13] The delay in the hearing of this appeal which would likely result from involvement of the Children’s Lawyer at this late stage would not be in the best interests of the children.

[14] Appointing counsel for the children would carry the risk of polarizing the children further in the contest between mother and father. In this case, it might set back the progress the father has started to make in normalizing his relationship with his daughters. The children’s views at the time of the trial judgment were clear. They strongly objected to the change in custody, and likely still hold those views, although more recently they may not be reacting so forcefully as a unified bloc. The panel hearing this appeal will undoubtedly consider the children’s wishes and the impact of those wishes on the trial judge’s decision.

[15] Possible new evidence, in the form of a report and investigation by the Office of the Children’s Lawyer, risks distorting the appeal process. Furthermore, exposing the children to yet more social workers or psychologists may exacerbate the difficulties for the children associated with the litigation and parental conflict. Little weight may ultimately be given to the children’s positions if their preferences are the result of the mother’s deliberate attempts to ruin the children’s relationship with their father.

[16] In the end, the trial judge concluded that the disruption caused by removal of the children from their mother’s care against the girls’ wishes was outweighed by the value and importance to their best interests of ensuring that they had a close relationship with their father. As observed in Laurin v. Martin 2006 Carswell Ont 8905 (SCJ), at pp 3-4, aff’d 2007 CarswellOnt 5593 (CA):

The Court will only ask the O.C.L. to intervene if the Court is satisfied it is necessary to do so to ascertain the wishes of the child and/or provide professional input, usually from a social worker, in order to permit the Court to better ascertain what is in the best interest of the child.

Having read all the material in this long and hard-fought litigation it is obvious that the child’s wishes, the parental ability of the parents, the needs of the child and her relationship to both parents have been the subject of intense scrutiny by the Court for the last four years. The Court has already had the help of many professionals, including the O.C.L. The Respondent has failed to point to any evidence which convinces the Court that the appointment of the O.C.L. in the context of this new round of litigation will add anything to help the Court decide the issue raised by the main motion.

[17] For these reasons, the motion to request the assistance of the Children’s Lawyer is dismissed. I see no need for directions, as this appeal is close to being perfected and can be set down for hearing shortly.

[18] Costs should follow the result. Costs to the respondent on the motion fixed at $10,000.00.

“G. Pardu J.A.”