WARNING

The court hearing this matter directs that the following notice should be attached to the file:

This is a case under Part III of the Child and Family Services Act and is subject to subsections 48(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply, read as follows:

45.—(7) Order excluding media representatives or prohibiting publication.— The court may make an order,

(c)

prohibiting the publication of a report of the hearing or a specified part of the hearing,

where the court is of the opinion that . . . the publication of the report, . . ., would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding.

(8) Prohibition: identifying child.— No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child's parent or foster parent or a member of the child's family.

(9) Idem: order re adult.— The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

85.—(3) Idem.— A person who contravenes subsection 45(8) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

Toronto (North York) Registry No. C55736/11

DATE: 2012·I·12

CITATION: Jewish Family and Child Service of Greater Toronto v. L.K., 2012 ONCJ 8

ONTARIO COURT OF JUSTICE

IN THE MATTER OF an application under Part III of the Child and Family Services Act, R.S.O. 1990, c. C-11, as amended, respecting J.B. (born on 22 July 1997) and S.B. (born on 7 July 1999), children apparently in need of protection;

BETWEEN:

JEWISH FAMILY AND CHILD SERVICE OF GREATER TORONTO,

Applicant,

— AND —

L.K. and M.B.,

Respondents.

Before Justice Robert J. Spence

Heard on 11 January 2012

Reasons for Judgment released on 12 January 2012

Lorne V. Glass .......................................................................... counsel for the applicant society

Ian R. Mang ................................................................. counsel for the respondent mother, L.K.

Jeffery H. Wilson .......................................................... counsel for the respondent father, M.B.

JUSTICE R.J. SPENCE:—

1: NATURE OF THE CASE

[1] The primary issue is whether the two children, J.B. age 14 years and S.B., age 12 years should have counsel appointed to represent them in this child protection proceeding. The secondary issue is whether that representation, if any, must come from the Office of the Children’s Lawyer (“OCL”), or whether the children may be represented by any lawyer of their choosing. The father submits that, if the court does order representation for the children, the children should be given the choice of an OCL lawyer, or a lawyer of their own choosing.

[2] The two brothers are the subject of a new protection application brought by the Jewish Child and Family Services of Greater Toronto (the “society”). On January 5, 2012, I made a temporary “without prejudice” order, on consent, placing J.B. in the care of the society, and S.B. in the care of the mother, subject to supervision by the society.

[3] The society and the father seek to have each child represented by separate counsel pursuant to section 38 of the Child and Family Services Act, R.S.O. 1990, c. C-11, as amended (the “Act”). The mother is opposed to the appointment of counsel to represent the children.

[4] Section 38 provides as follows [my emphasis]:

38. Legal representation of child.—(1) A child may have legal representation at any stage in a proceeding under this Part.

(2) Court to consider issue.— Where a child does not have legal representation in a legal proceeding under this Part, the court,

(a)

shall, as soon as practicable after the commencement of the proceeding; and

(b)

may, at any later stage in the proceeding,

determine whether legal representation is desirable to protect the child’s interests.

(3) Direction for legal representation.— Where the court determines that legal representation is desirable to protect a child’s interests, the court shall direct that legal representation be provided for the child.

(4) Criteria.— Where,

(a)

the court is of the opinion that there is a difference of views between the child and a parent or a society, and the society proposes that the child be removed from a person’s care or be made a society or Crown ward under paragraph 2 or 3 of subsection 57(1);

(b)

the child is in the society’s care and,

(i)

no parent appears before the court, or

(ii)

it is alleged that the child is in need of protection within the meaning of clause 37(2)(a), (c), (f), (f.1) or (h); or

legal representation shall be deemed to be desirable to protect the child’s interests, unless the court is satisfied, taking into account the child’s views and wishes if they can be reasonably ascertained, that the child’s interests are otherwise adequately protected.

[5] While section 38 empowers the court to make a representation order, that section does not provide guidance to the court as to the source of that representation. Generally, however, when the court makes an order under section 38, the judge making the order will sign a standard form draft order appointing the OCL to represent the child.

[6] The father requests that this standard form order should be altered to permit the child to choose his own lawyer in the event the child, or either of them, does not wish to be represented by a lawyer from the OCL.

[7] In determining the jurisdiction of the court to make an order appointing counsel other than someone from the OCL, I note once again that the Act does not expressly provide for such an appointment. Interestingly, subsection 38(5) of the Act does make specific reference to the OCL in the context of appointing counsel to represent minor parents [my emphasis]:

(5) Where parent a minor.— Where a child’s parent is less than eighteen years of age, the Children’s Lawyer shall represent the parent in a proceeding under this Part unless the court orders otherwise.

[8] I conclude from the foregoing that there is no statutory prohibition that would prevent the court from appointing legal representation for the child, apart from the OCL.[^1]

2: POSITION OF THE MOTHER — J.B.’s STRESS

[9] Mother argues that the children should not be represented at all. The thrust of her argument is that J.B., in particular, is so stressed by the conflict between the parents that he needs to be insulated from the litigation, rather than further drawn into it, something which, the mother argues, would occur if a lawyer were appointed to represent him in this proceeding. While there is little evidence to suggest that S.B. is having the same problems as J.B., mother states:

Similar considerations apply to Sam even though he has not reacted as strongly as [J.B.] to the ongoing conflict between [the father] and me.

[10] In reviewing the affidavit evidence, I have no problem concluding that J.B. has suffered as a result of this parental conflict and that he is continuing to suffer. At one point, on September 27, 2011, in reference to the high level of conflict between his parents, J.B. stated, “this is way too much pressure for a 14 year old to handle”.

[11] On November 8, 2011 J.B. was admitted to hospital after he threatened to kill himself.

[12] On November 21, 2011, J.B. was taken from the hospital to Youthdale for admission to Youthdale’s Acute Support Unit. At that time, J.B. presented as very depressed, and with a desire to die.

[13] During the following weeks, J.B. attempted to engage the medical staff at Youthdale about issues pertaining to the custody and child support litigation between his parents. It was obvious that he had been made very aware of the ongoing legal issues between his parents and that, regardless of his parents’ intentions in this regard, J.B. had in fact been pulled into that conflict.

[14] It is all of this conflict and the resultant stress that, mother argues, the court should attempt to deflect from the children by keeping them out of the litigation, rather than further drawing them into it.

[15] J.B. remains resident at Youthdale. The staff has concluded that it is not safe for him to return home given the high level of conflict between the parents.

[16] While S.B. does not present with the same level of distress or behavioural acting out as J.B., the society believes that S.B. is also at risk of emotional harm if he were to continue to live with his mother without society supervision, so long as the high level of conflict exists between the parents.

3: DISCUSSION

[17] Mother’s counsel argued that the criteria under subsection 38(4) of the Act do not permit the court to conclude that legal representation for S.B. should be “deemed to be desirable”[^2] as the society is not presently seeking to remove S.B. from the care of the parents. He acknowledged, however, that in J.B.’s case, because he is in the society’s care, legal representation should be “deemed to be desirable”.[^3]

[18] I agree with counsel’s characterization of the “deeming” provisions in so far as both children are concerned.

[19] However, regardless of the deeming provisions, subsection 38(3) of the Act gives the court the overriding discretion to appoint legal representation so long as the court “determines that legal representation is desirable to protect a child’s interests”. Accordingly, whether or not the deeming provision applies, the court must decide the issue of representation based on whether such an appointment is necessary to protect the interests of the child.

[20] In arguing against the appointment of representation for the children, mother’s counsel referred me to the case of Children’s Aid Society of Durham v. A.S., 2011 ONSC 1001, 97 R.F.L. (6th) 377, [2011] O.J. No. 1027, 2011 Cars­well­Ont 1438 (Ont. Fam. Ct.), a decision of Justice Margaret Ann Scott in the Ontario Superior Court of Justice. Justice Scott, in a thorough and comprehensive analysis considered whether the children in that case should have counsel appointed to represent their interests. In her consideration of that issue, Justice Scott asked herself a number of questions, engaging in what was essentially a balancing act, namely, the benefits of appointing counsel versus the downside of doing so. It is not necessary for me to repeat those questions or to engage in an analysis of how Justice Scott’s particular questions might impact on the facts of this case because, as I have just noted, in the final analysis, all that Justice Scott was attempting to do was to balance the benefits of appointing counsel, against the costs of doing so, if any, and to decide whether it was in the children’s best interests to have counsel appointed to represent them.

[21] Justice Scott noted that other courts have declined to appoint counsel to represent children in circumstances where the court believed it to be of little utility to do so, or where the children needed to be protected from the dangers of ongoing litigation.[^4]

[22] However, in ultimately deciding to appoint counsel to represent the children in her case, Justice Scott made certain comments which are apposite to the facts of this case (at paragraph [93]):

[93] There is an essential need for further testing of each party’s allegations and positions before the court. Counsel for the child would have a considerable role in assessing all of the evidence from the children’s point of view.

[23] In the case before me, the alleged risk of harm comes from the parents’ each pointing fingers at the other and each blaming the other for the dysfunction within the family unit which, in turn, has resulted in the initiation of the protection application. And, in my view, “assessing all of the evidence from the children’s point of view” is critical.

[24] At paragraph [95], Justice Scott considered whether the children have an “interest in the process”:

[95] . . . On any criteria, the children certainly have demonstrated a great anxiety and a consequent need to be heard, especially in the early stages of this proceeding when the parties, counsel, and the court are attempting to structure a resolution of this complex matter.

[25] The case before me is also in its very early stages. The children, J.B. in particular, “have demonstrated a great anxiety and a consequent need to be heard”.

[26] Returning to mother’s concerns, I ask: Is there is a possibility that the appointment of counsel could add to J.B.’s stress? Yes. Is it possible that J.B. might perceive the appointment of counsel on his behalf as simply one more burden with which he must somehow cope, something that might be too difficult for him to manage? Yes.

[27] On the other hand, what jumps off the page as I read the affidavit evidence so far presented at the early stage of this proceeding, is that J.B. is crying out for help. My questions are these: What kind of help? Who is listening to his cries? How will his wishes be conveyed to the court, the very body that is mandated to make decisions about J.B.’s future?

[28] Mr. Mang, on behalf of mother, argues that these wishes can be conveyed to the court by social workers or perhaps by doctors or other medical personnel. However, these people will not be coming to court to make representations about J.B.’s views and preferences. These people will not be attending case conferences at which the court will expect to be continually updated as to the children’s progress and the ongoing protection concerns.

[29] Further, the social workers and the medical personnel, while doubtless competent to provide social work or medical treatment, are not trained (nor do they likely have the time) to meet with J.B. repeatedly, take the time to try to form a relationship with him,[^5] explain to him what is likely to go on in court, what options the judge might choose from in deciding what is in his best interests, tell the child that the judge wants to hear from him and wants to have his voice heard in the courtroom. On the other hand, a well-trained lawyer from the OCL is not only able to do all these things but, perhaps most important, these are the only responsibilities that the OCL lawyer would have in so far as his child client is concerned.

[30] In 1973, the Ontario law Reform commission recommended that, in child welfare cases, children would benefit from having their own legal counsel, stating [my emphasis]:[^6]

It seems to us inconsistent . . . that so far in the development of the law in this Province the right for a child to the protection of his own counsel in proceedings relation to his upbringing has not been established in any more than isolated instances. We believe that decisions concerning a child’s physical and emotional welfare are as worthy of the state’s special interest as those concerning his property rights, and that courts may be in the most informed position only when there has been an objective evaluation of a child’s best interest by a person with legal qualifications who may present the child’s case to a court.

[31] The case before me is not about children who are infants or toddlers, or even children who are under the age of 10 years. Rather, these two children are ages 12 and 14, with no suggestion that they have intellectual or cognitive limitations such that they would be unable to meet with their own lawyers and express their views and preferences.

[32] In fact, once a child reaches the age of 12 years, there is a presumption under the [Act][^7] that the child is entitled to “receive notice of the proceeding and to be present at the hearing”.[^8]

[33] By appointing counsel to represent the children, the court is not saying that the children have to be dragged kicking and screaming into the litigation. In fact, it is always open for either of the children to say to his lawyer, in effect, thank you for spending this time with me, but I really have no views or preferences that I wish you to convey to the court on my behalf.

[34] In her opposition to the appointment of counsel for the children, mother states:

I believe that [h]is [J.B.’s] participation at this point is contrary to his current best interests and treatment needs. On the very limited information we have about his treatment needs . . . it seems that J.B. really needs a break rather than more exposure to litigation. I do not believe that involvement in this process promotes his well being and emotional health in any way whatsoever.

[35] I neither criticize the mother, nor do I doubt her sincerity in her expressed wish to keep the children out of the conflict. It is doubtless the same kind of reaction that many parents would have in similar circumstances. However, where mother effectively characterizes the appointment of counsel as a likely emotional burden for her children, my view is that the appointment of counsel is an opportunity for the children — an opportunity to allow the children to be heard in the courtroom, not because their voices will decide the outcome but, rather, because they have the right to know that they were at least given the opportunity to tell the judge what they are feeling, what they want, or what they don’t want to happen to them.

[36] Further, on the facts of this case, it is somewhat naïve to talk in terms of shielding the children from the litigation, when it is abundantly clear that the children are very much immersed in the litigation, litigation that obviously predates the commencement of the child protection proceeding. At this early stage of the child protection proceeding, I am not prepared to allocate the blame as between the parents; but it is clear to me that one or both of them are responsible for dragging the children into their legal disputes. These children are acutely, tragically, aware of much of the legal lay of the land.

[37] It would be somewhat ironic if these parents, who are fighting tooth and nail with each other, who are each blaming the other for the sad state of affairs that has befallen their family, are afforded the legal right to take up dozens of hours of court time telling the judge what his and her respective positions are, but the very children who are affected most by what the judge ultimately decides, are afforded no such opportunity whatsoever.

4: DO THE CHILDREN HAVE THE RIGHT TO CHOOSE THEIR OWN LAWYER?

[38] As I stated at the outset, this is a secondary issue. This relief was formally requested by Mr. Wilson on behalf of the father. However, during the course of argument, I asked Mr. Wilson whether it might be premature to deal with this issue. I suggested instead that, if I were inclined to appoint counsel to represent the children, perhaps the starting point ought to be appointing the OCL and then waiting to see whether the children were satisfied with their representation, or whether they then wanted to retain their own counsel outside of the OCL. If the children were content with the OCL appointment, then the whole issue of “children’s choice” would be academic, and not something that would need to take up court time, as well as the time and expense of the parties and their lawyers. Mr. Wilson appeared content with this approach and stated to the court that he would not press this argument strenuously.[^9]

5: CONCLUSION

[39] I make the following order:

Pursuant to section 38 of the Act, I appoint counsel from the Office of the Children’s Lawyer to represent the children.

The children shall have separate representation as it appears that there is a real potential for conflict in the children’s respective positions.

The OCL shall appoint counsel who will be fully prepared for the next court appearance on March 7, 2012, at 2:00 p.m., at which time the parties have indicated their intention to argue a temporary care motion. For greater specificity, the OCL shall ensure that it does not appoint counsel who is neither available on this scheduled court date, nor someone who is unable to fully prepare for the scheduled hearing.

The parties shall file a Form 14C confirmation form in accordance with the Family Law Rules, O. Reg. 114/99, as amended, confirming their intention to proceed with the motion, as scheduled.

[40] Finally, I wish to thank all three counsel in this matter for their able and well-presented arguments.

Justice Robert J. Spence

12 January 2012

[^1]: However, given my comments toward the end of these reasons, I do not find it necessary to proceed further with my analysis on the issue of appointment of representation outside the OCL.

[^2]: See the criteria under subsection 38(4) of the Act.

[^3]: Subsection 38(4), supra.

[^4]: See, for example, Haywood v. Haywood, 2010 ONSC 5615, 94 R.F.L. (6th) 396, [2010] O.J. No. 4317, 2010 Cars­well­Ont 7701 (Ont. S.C.) and J.K.L. v. N.C.S., 2008 47477, 54 R.F.L. (6th) 120, [2008] O.J. No. 3666, 2008 Cars­well­Ont 5490 (Ont. S.C.). I note also that none of the cases cited by Justice Scott, where the court declined to order child representation were child protection cases. Arguably, the need for child representation would be greater in a child protection case than in a custody dispute between parents. In the latter case, the argument is generally about which parent the child will live with and who will have the custodial decision-making responsibility. In child protection cases, the issue is often about whether there should be a permanent severing of the relationship between the child and both parents.

[^5]: Apart from a therapeutic relationship.

[^6]: Ontario Law Reform Commission, Report on Family Law, Part III — Children (Toronto: Ministry of the Attorney General for Ontario1973) at 124.

[^7]: Subsection 39(5).

[^8]: “Unless the court is satisfied that being present at the hearing would cause the child emotional harm” (This issue has yet to be raised in this case.)

[^9]: However, in the event I misapprehended Mr. Wilson’s apparent conciliatory response, I would nonetheless take this approach at the early stage of this proceeding concluding, as I have, that there is no need to decide an issue that, at present, may be purely academic.