Court File and Parties

Ontario Court of Justice

Date: 17 July 2015

Court File No.: Toronto DFO 10 10745

Between:

GIACOMO VIOLO Applicant

— AND —

TERESA LYNN MUNRO Respondent

Before: Justice P.J. Jones

Ruling released on: July 17, 2015

Counsel:

• Mr. Bradley F. Berns – counsel for the applicant
• Mr. Peter S. Carlisi – counsel for the respondent

Decision

JONES, P. J. J.:

[1] This is my ruling on the applicant, Giacomo Violo's motion to seek the involvement of the Children's Lawyer. This motion is brought within the Applicant's motion to change commenced on February 13, 2014.

[2] The motion to change relates to a final access order made by me on April 2, 2012. This order reads as follows:

The Applicant Giacomo Violo shall have no access to Antonio Felice Violo born January 11, 2000, Maria Margretta Violo born July 4, 2001 and Richard Charles Violo, born July 2, 2005 pending further Court Order. No motion or application may be brought by either party before November 2, 2012 without the consent of the other party.

[3] The Respondent mother, Theresa Munro has brought a motion for summary judgment pursuant to Rule 16 of the Family Law Rules as amended.

[4] It is the applicant's position that, prior to my deciding the summary judgment motion, I should seek the assistance of the Children's Lawyer in order to hear the views of the children on the access issue. The father indicated that if he hears from the Children's Lawyer that the children do not wish any contact with him at this time, he will withdraw his motion for access. I note that the children are now 15, 14, and 10 years old and as the children are of an age where their wishes can be ascertained, their wishes, while not necessarily determinative, are quite persuasive.

[5] I propose to decide the motion to seek the involvement of the Children's Lawyer before deciding the summary judgment motion.

The Wishes of the Children

[6] The father asserts in his affidavit that he has heard from unnamed sources that the children have expressed a desire to see him.

[7] As I considered this information concerning the wishes of the children to be relevant to the issue I must decide, I adjourned the summary judgment motion in order to give the father the opportunity to obtain admissible affidavit evidence from these unnamed people so that the court would be able to consider the views and preferences of the children in making my decision. When the matter was returned to court, the father was unable to produce any affidavits touching on the children's wishes. At this point the father renewed his application to have the Children's Lawyer involved so that the children's wishes might be before the court.

[8] The mother is opposed to the involvement of the Children's lawyer. It is her position that the children have told her very clearly that they do not wish any further contact with their father. They are well settled, doing well at school, and in the community and any further contact with their father would destabilize the family given his alcoholism and violent and abusive nature.

Discussion

[9] This motion to change, whether granted or dismissed, cannot but have a significant effect on the lives of these children. Given the importance of the decision to the children and the ages of the children, before this motion to dismiss is decided, I need to afford the children an opportunity to express their views and preferences on this important issue. Surely these children have an opinion on this motion to restart access.

[10] Should I rely on the words of the mother as to the wishes of the children?

[11] Their father has had no access to the children and has not even spoken to them in over three years. For the majority of that time he has been subject to criminal court orders restricting his contact to the mother and to the former family home. Not surprisingly he has no direct or credible information relating to the children's wishes on his access request.

[12] The mother has told the court that the children do not speak of their father and do not wish access to him at this time. This is the only source of information I have as to the views and preferences of the children. Since there is no question in my mind that the children are aware of the conflict between their parents and the fact that the mother wishes no further contact with the father, I must be concerned about whether the children would feel they had permission to express any other sentiment to their mother.

[13] The Children's Law Reform Act section 64 authorizes the court to take into account the views and preferences of the child in custody and access cases. This section reads as follows:

64 CHILD ENTITLED TO BE HEARD—(1) In considering an application under this Part, a court where possible shall take into consideration the views and preferences of the child to the extent that the child is able to express them.

[14] This section of the Children's Law Reform Act is consistent with Article 12 of the United Nations Convention on the Rights of the Child which provides as follows:

1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

2. For this purpose, the child shall in particular 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, in a manner consistent with the procedural rules of national law.

[15] In this case, I am satisfied that I should recognize the right of these children to express their views freely in this matter if they so desire.

[16] Justice D. Martinson, of the Yukon Territory Supreme Court, in B.J.G. v. D.L.G., 2010 YKSC 44, discusses this very issue and arrived at the same conclusion. In paragraphs 26-30, the court wrote:

26. First, children have a legal right to express their views. There is not a legal requirement to do so. They can choose not to participate.

27. Second, there must be a determination of whether a child is capable of forming his or her own views before the child has the legal right to express his or her views. The thrust of this provision is to ensure that children are capable in the sense that they have the cognitive capacity to form their own views and to communicate them. …

28. Third, decision makers can deal with all of the circumstances of the case when deciding what weight should be given to a child's views. This second legal right of children is based on the best interests of children principle. It gives children a voice, not the choice, as others have put it; they are not required to make the decision.

29. Fourth, views can be obtained on a wide variety of issues. As noted above children have important information to offer relating not only to what their life is like generally, from their point of view, but also to specific matters relating to their day to day lives.

30. Fifth, there are many different ways in which children's views can be obtained, depending on the family circumstances and the age and maturity of the child. The method does not have to be intrusive. Each approach can deal sensitively with the child's emotional well-being.

[17] It has been my experience that most motions to change access, where older children are involved are informed, to a large extent by the wishes of those children. As a practical matter, there comes a point where the court should not make a significant change in an access order without considering the wishes of older children or risk creating an unenforceable order. Here, two of the children are in their mid-teens and should be consulted if there is any expectation that an access order would be viable. The younger child, aged 10, may also have strong views on this access motion that should be considered.

[18] Given the ages of the children, I am satisfied that I require credible evidence of the wishes of the children. Given the nature of the separation and the lengthy litigation history, I require that evidence as to the children's wishes to come from a neutral source and not from one of the parties who have an interest in the outcome of the litigation.

[19] Accordingly, I have decided to grant the father's motion and refer this case to the Children's Lawyer's Office and request that that office appoint a lawyer to represent the children and ascertain their wishes as to the reinstatement of access.

[20] It is of note that the father has indicated that if the children do not wish to see him, he is prepared to withdraw his claim for access. Therefore, should the children express a desire not to see the father, the case would be over. In the event the children express a desire to see the father, I would have this information available to me when I hear the summary judgment motion.

Released: July 17, 2015

Signed: Justice P. J. Jones