Court File and Parties
Ontario Court of Justice
Date: 2018-11-26
Court File No.: Gore Bay D18-0018
Between:
Denise Flood and Tom Flood Applicants
— And —
Janene Flood and Ron Ollington Respondents
Before: Justice V. Christie
Heard on: November 22, 2018
Reasons for Judgment released on: November 26, 2018
Counsel
Réjean Parisé — counsel for the applicants
Lance Talbot — counsel for the respondent, Janene Flood
Stacy Haner — counsel for the respondent, Ron Ollington
Reasons for Judgment
CHRISTIE J.:
Motion for Office of the Children's Lawyer Involvement
[1] The applicants have brought and argued a motion requesting an order pursuant to sections 89 and 112 of the Courts of Justice Act, that the Office of the Children's Lawyer be requested to cause an investigation to be made of the circumstances of the claims for custody and/or access to the child, E., born […], within this proceeding. The applicants take the position that the method of investigation, whether by clinical assessment or appointment of legal representation for the child, is to be assessed and determined by the Office of the Children's Lawyer. Both respondents oppose such an order being made.
Procedural Background
[2] Denise and Tom Flood are the maternal grandparents of E., born […].
[3] Janene Flood and Ron Ollington are the biological parents of E.
[4] E. has been residing with and in the care of the maternal grandparents since September 10, 2017.
[5] Many of the facts in this case are in dispute.
[6] According to Janene Flood, she was moving houses in September 2017 and, therefore, lacked a stable residence for approximately two weeks. She believed that E. would benefit from being in the care of her maternal grandparents. Upon moving into her new residence at the beginning of October 2017, Janene Flood contacted her mother to have E. returned and was informed by her mother that she had contacted the Children's Aid Society stating that she did not want E. returned to the care of Janene Flood. The applicants have raised many concerns in their affidavit materials concerning the lifestyle and household of Janene Flood, including domestic violence and alcohol abuse.
[7] On October 27, 2017, Janene Flood agreed to a voluntary kinship placement arrangement placing E. in the care of Tom and Denise Flood.
[8] Sometime in early 2018, Janene Flood retained a lawyer, Lance Talbot. On February 3, 2018, the Society was advised that Janene Flood sought to have E. returned to her care. Subsequently, Mr. Talbot wrote to the Children's Aid Society and advised that Janene Flood was terminating the voluntary kinship placement. Mr. Talbot also wrote to the applicants on February 3, 2018 asking for the immediate return of E. The letter also indicated that if they intended to seek a custody order, Mr. Talbot was prepared to accept service of any pleadings and asked that the matter be commenced in Sudbury.
[9] These court proceedings commenced in Gore Bay in mid February 2018 with an emergency motion brought by the applicants requesting an order for sole custody of the child, E. Further the motion requested an order that access by the respondent, Janene Flood, be arranged by the parties and at the discretion of the applicants, and may be supervised by a responsible adult determined by the applicants. Finally, the motion requested an order that the respondent, Ron Ollington, have no access to the child, or in the alternative, the access be at a supervised access centre. At the same time, the applicants commenced an application requesting the same relief.
[10] Also, at that time, Janene Flood brought a motion for the immediate return of E. to her care and custody, and for an order transferring this matter from Gore Bay to the City of Greater Sudbury.
[11] On February 22, 2018, with the consent of Janene Flood, and on a temporary without prejudice basis, an order was made that the applicants have temporary care of the child, E., until further order of the court and that the respondent, Janene Flood, would have supervised access.
[12] On May 31, 2018, an order was made for questioning of both of the respondents, on the consent of counsel for Janene Flood. Janene Flood and Ron Ollington arrived late to court and were advised of what had occurred. Mr. Ollington was advised of the need to file his answer. Mr. Ollington indicated that he would like the matter moved to Sudbury.
[13] In July 2018, the applicants brought a motion for various records to be produced, specifically records of the Children's Aid Society of the Districts of Sudbury and Manitoulin, and records of the Greater Sudbury Police Service relating to Janene Flood and Ron Ollington, and further requesting that Ron Ollington be noted in default, having not filed an answer to the application which had been served upon him nearly five months earlier.
[14] On July 26, 2018, the court ordered the production of the records to be deposited with the court, subject to further argument from the parties before release. Further, there was an indication that Mr. Ollington, who was not present, might be retaining Stacy Haner, and he requested and was granted an extension to provide his answer to August 30, 2018.
[15] On August 22, 2018, Mr. Ollington provided an answer and a notice of motion requesting supervised access through the supervised access centre.
[16] On August 28, 2018, the applicants brought a motion for an order declaring that service of Mr. Ollington's motion was not served pursuant to Rule 6 of the Family Law Rules and should not proceed. Further, the applicants requested that orders for the release of police and CAS records be issued by the court, notwithstanding the failure by Mr. Ollington to approve the draft orders. Finally there was a request that the motion for access by Mr. Ollington be scheduled to be argued on a date after receipt of the police and CAS records.
[17] On August 30, 2018, it was ordered on consent that the production of the records, previously ordered, could be made directly to the parties and that it was no longer required that the records be deposited with the court as ordered on July 26, 2018. It was determined that the motion by Mr. Ollington was not served properly and was therefore adjourned to September 27, 2018.
[18] On September 27, 2018, there was a continued case conference. At that time, there was an indication by Mr. Parisé on behalf of the applicants that they wished to have the involvement of the Office of the Children's Lawyer. The respondents did not consent to this order being made, therefore, Mr. Parisé indicated his intention to bring a motion for this relief. Further, both of the respondents indicated their intention to bring motions for increased access.
[19] The very next day, September 28, 2018, the applicants served and filed a notice of motion requesting an order, pursuant to sections 89 and 112 of the Courts of Justice Act, that the Office of the Children's Lawyer be requested to cause an investigation to be made of the circumstances of the claims for custody and/or access to the child, E.
[20] On November 5, 2018, Janene Flood filed a motion requesting an order for the immediate return of the child, E., to her care and custody, or in the alternative, either overnight access on alternating weekends or unsupervised community access visits. Also, Janene Flood requested that the case be transferred to Sudbury. On November 6, 2018, Ron Ollington filed a motion for access to occur at the supervised access centre.
[21] On November 22, 2018, the motion for OCL involvement was argued. Other motions have been adjourned to December 20, 2018.
Analysis
Best Interests of the Child and Statutory Framework
[22] Ultimately, this court will need to decide which custody and access arrangement is in the child's best interests and consider the factors set out in section 24 of the Children's Law Reform Act in reaching this decision. This section reads as follows:
Merits of application for custody or access
24 (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4).
Best interests of child
(2) The court shall consider all the child's needs and circumstances, including,
(a) the love, affection and emotional ties between the child and,
(i) each person, including a parent or grandparent, entitled to or claiming custody of or access to the child,
(ii) other members of the child's family who reside with the child, and
(iii) persons involved in the child's care and upbringing;
(b) the child's views and preferences, if they can reasonably be ascertained;
(c) the length of time the child has lived in a stable home environment;
(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;
(e) the plan proposed by each person applying for custody of or access to the child for the child's care and upbringing;
(f) the permanence and stability of the family unit with which it is proposed that the child will live;
(g) the ability of each person applying for custody of or access to the child to act as a parent; and
(h) any familial relationship between the child and each person who is a party to the application.
Past Conduct
(3) A person's past conduct shall be considered only,
(a) in accordance with subsection (4); or
(b) if the court is satisfied that the conduct is otherwise relevant to the person's ability to act as a parent.
Violence and abuse
(4) In assessing a person's ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,
(a) his or her spouse;
(b) a parent of the child to whom the application relates;
(c) a member of the person's household; or
(d) any child
Same
(5) For the purposes of subsection (4), anything done in self-defence or to protect another person shall not be considered violence or abuse.
The wording of section 24 of the Children's Law Reform Act makes it clear that these considerations by the court are mandatory.
[23] In making determinations regarding custody and access, the court must consider the "best interest" factors set out above, along with all other relevant considerations. No one "best interest" factor is given more importance than the others. The court must ascertain a child's best interests from the perspective of the child rather than that of the parents. The children's views and preferences are a factor in the best interests analysis. See: Gordon v. Goertz, [1996] 2 S.C.R. 27; Mattina v. Mattina, 2018 ONCA 64
[24] In the oft cited case of Kaplanis v. Kaplanis, [2005] O.J. No. 275 (C.A.), Justice Weiler for the court stated:
[13] While the child's best interests are not necessarily synonymous with the child's wishes, the older the child, the more an order as to custody requires the co-operation of the child and consideration of the child's wishes. Here, we are dealing with a very young child, incapable of communicating her wishes. When the child is too young to communicate her wishes, expert evidence may be necessary to enable a judge to determine how the child's psychological and emotional needs would be advanced by the proposed custody order or parenting plan. Ideally, judges conducting a pre-trial would canvass the issue with the parties to alert them to the need to bring forward evidence of how the child's needs will be met by the proposed parenting plan. The assistance of the Children's Lawyer pursuant to s. 112 of the Courts of Justice Act, R.S.O. 1990, c. 43, could also be requested. In this case the trial judge did not have the benefit of expert evidence or input from the Children's Lawyer respecting the child.
[25] It is in the context of determining which custody and access arrangement is in the child's best interests that this court is being asked to consider ordering the involvement of the Office of the Children's Lawyer. Context is critical in making these decisions.
Statutory Authority for OCL Involvement
[26] In determining whether or not to make such an order, this court has considered sections 89 and 112 of the Courts of Justice Act, which state as follows:
89.-- (3.1) At the request of a court, the Children's Lawyer may act as the legal representative of a minor or other person who is not a party to a proceeding.
Investigation and report of Children's Lawyer
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.
Same
(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.
Report as evidence
(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.
Attendance on report
(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.
It is clear from the wording of the Courts of Justice Act that the required threshold for the involvement of the Office of the Children's Lawyer is low. In fact, if the question of custody or access is before the court, the wording of this section would suggest that the Office of the Children's Lawyer may involve itself without the permission of the court.
Case Law on OCL Involvement
[27] In Parniak v. Carter, [2002] O.J. No. 2787 (C.J.), Justice Kukurin was dealing with a motion by the father requesting the involvement of the Office of the Children's Lawyer pursuant to s. 112 of the Courts of Justice Act, or alternatively for an assessment under s. 30 of the Children's Law Reform Act. [The alternative claim for a section 30 assessment was not argued when the matter was heard.] The mother argued that orders for assessments in custody and access cases were limited to cases in which there were clinical issues, relying on the appellate decision of Linton v. Clarke, 21 O.R. (3d) 568 (Ont.C.A.), and that there were none to be determined. The child was 5 years old. The Court stated in part as follows:
[26] Subsection 112(1) of the Courts of Justice Act, on the other hand, is much broader in its scope. Its parameters are "all matters concerning custody of or access to the child and the child's support and education". Moreover, not only is the Office of the Children's Lawyer given discretion to decide whether to participate in any particular case, but that discretion is extended to reporting and to making recommendations. The Office of the Children's Lawyer, in fact, has certain requirements of the parties, such as intake forms, and has its internal criteria for deciding to become involved in a case. In short, there is some screening done at this stage presumably to avoid doing assessments where their utility is marginal. There is nothing in subsection 112(1) of the Courts of Justice Act that suggests a case should have "clinical issues" before an order may be made under this section.
[28] I am disposed to make an order under section 112(1) of the Courts of Justice Act in this case. Although there have been other cases where Office of the Children's Lawyer involvement has been much more desirable, there is no reason not to make the order sought. I must also admit that my experience is a factor in this decision. That experience is that Office of the Children's Lawyer social work assessment reports are almost invariably helpful to me and more often than not are a major contribution in resolving the litigation short of trial. I might also add that most of those that I have reviewed have been quite professionally done.
[29] This case is not advanced. It is in its early stages. The conferencing process juxtaposed to systemic temporal constraints means that this case will take some time to advance through the process. Simultaneously, the Office of the Children's Lawyer can do what it does, should it choose to do so. I do not anticipate any significant delay as a result of my decision.
[30] As for factual material arising from the report, the court will have to weigh such information in the context of the entire case. There are some built-in precautions. The parties can dispute the report or part of it. They can cross-examine the assessor. They are also free to testify themselves or call other witnesses to dispel any inferences that may be made on an insecure foundation. It is hoped that an assessment report will supplement and complement the evidence of the parties and afford a more informed basis for the final decision.
Justice Kukurin ordered the involvement of the Office of the Children's Lawyer for the 5 year old child.
[31] In A.P. v. R.J.B., [2017] O.J. No. 5569 (C.J.), Justice Finlayson was deciding on an application by the maternal grandparents for the appointment of the Office of the Children's Lawyer to represent two children, ages 8 and 6. This case involved an application by the grandparents for access to the children, which was opposed by the father. The mother was deceased. The father took the position that the OCL process would be intrusive and that his children were emotionally fragile. The Court stated in part:
[19] I am persuaded that the "fishing expedition" argument can be a concern in some cases and find that the merits of underlying claims can be a relevant consideration in deciding whether to appoint the OCL. Although I am not dealing with a Motion to Change involving a threshold material change issue, the mother's preliminary objection in Parniak is nevertheless analogous to the argument raised by the father before me.
[21] I felt it necessary to consider the preliminary merits of the grandparents' access claim because if that underlying claim lacks merit, then why would the Court appoint the OCL? That would be unnecessarily intrusive to the children for no child-focused reason. And ultimately in deciding to appoint the OCL, I have considered the children's best interests and the helpfulness test set out in Parniak v. Carter.
37 I agree with the grandparents' counsel that the OCL may offer assistance by way of its recommendations about appropriate therapeutic intervention.
38 Again, there is conflicting evidence about the motives that underlie actions that have been taken by the parties in this case. I agree with the comments in Parniak v. Carter that the involvement of the OCL will help the Court resolve the factual disputes and perhaps help the parties settle.
39 I am mindful of the concern, raised by the father, that appointing the OCL is intrusive. But I am also concerned about the children's exposure to information about this proceeding as explained above. The father should not be engaging the children in discussions about the conflict between the adults. The children need not be made aware of the details of the litigation or this OCL referral.
40 If the OCL accepts the referral pursuant to s. 112 of the Courts of Justice Act, which I hope it will, the clinical investigator will be a social worker who will be skilled in interacting with the children and will give further direction about how to explain her involvement.
Justice Finlayson made the order for the involvement of OCL for these children, ages 8 and 6.
[32] More recently, the Ontario Court of Appeal, in the case of Children's Lawyer for Ontario v. Ontario (Information and Privacy Commissioner), 2018 ONCA 559, [2018] O.J. No. 3249 (C.A.), considered an appeal by the Office of the Children's Lawyer from the dismissal of its application for judicial review from an order of the Information and Privacy Commissioner allowing the father's request for access to the child client's litigation records. When the OCL was initially appointed, the children were 9 and 11 years old. In discussing the confidential relationship that exists between the Office of the Children's Lawyer and the children, Justice Benotto, writing for the Court, said in part as follows:
Best interests of the child
58 Whenever a child is affected by a court or government process, the primary consideration must be the child's best interests. This regularly cited principle has been enshrined in the United Nations Convention on the Rights of the Child. Article 3.1 provides:
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.
The voice of the child
62 A classic family law custody dispute gave rise to the Children's Lawyer's involvement in this case. Over the past several years, courts have taken great initiative to seek out and consider the views and preferences of the child. Professors Birnbaum and Bala explain:
The movement towards child inclusion in decision-making in education, medical treatment, and various areas of the law, including separation and divorce, has grown over the last decade. Studies have explored children's rights as citizens, children's perspectives on family relationships and what is a family, and children's attitudes about parental separation and participation in the decision-making process about post-separation parenting. Research clearly suggests that children's inclusion in the post-separation decision-making process is important to the promotion of their well-being. [Footnotes omitted.]
63 Indeed, art. 12 of the Convention requires that:
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.
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.
64 Children are among the most vulnerable members of society. Courts, administrative authorities and legislative bodies have a duty to recognize, advance and protect their interests. When children are the subject of a custody dispute or child protection proceedings, they are at their most vulnerable. Exposure to conflict has been called the "single most damaging factor for children in the face of divorce": per Backhouse J., in Graham v. Bruto, [2007] O.J. No. 656 (S.C.), at para. 65, aff'd 2008 ONCA 260.
65 It has always been a challenge for family law courts to find a way for children to express their views without exposing them to further trauma or causing more damage to the family. Those who work in the family law system are all too aware that children remain part of the family long after a judicial decision is reached. The process of determining the child's true wishes and preferences requires delicacy, for to undertake the process without expertise may further hurt the child and fracture family relationships.
66 The Children's Lawyer has been recognized as a model for addressing this challenge. The Honourable Donna J. Martinson and Caterina E. Tempesta, wrote that:
In Canada, the most expansive child representation program is offered by the Office of the Children's Lawyer...[it] may serve as a model for other jurisdictions in promoting access to justice for children by ensuring that their views are heard in court processes.
67 In this case, the judges involved in the underlying custody dispute sought the Children's Lawyer's involvement in the matter.
70 The Children's Lawyer not only represents the child's interests; she provides a safe, effective way for the child's voice to be heard. For her to do this, she must provide a promise of confidentiality. Children must be able to disclose feelings and facts to the Children's Lawyer that cannot or will not be communicated to parents. Children's interests can be averse to that of their parents. Feelings of guilt and betrayal that may influence a child require a safe person to speak to.
[33] Despite the positive comments made by the courts about the Office of the Children's Lawyer, it must be kept in mind that their involvement is not automatically ordered by the court when requested. In the recent case of Mader v. McCormick, 2018 ONCA 340, the Court of Appeal were reviewing a decision of the Superior Court of Justice which upheld an Ontario Court of Justice decision dismissing a motion by a father to have private counsel appointed for his two children after the court had refused an order to appoint the Office of the Children's Lawyer for the second time in a case. Even though appointing private counsel for children is a different issue, the following comments are relevant:
[9] Rule 4(7) of the Family Law Rules, O. Reg.114/99 provides that "[i]n a case that involves a child who is not a party, the court may authorize a lawyer to represent the child, and then the child has the rights of a party, unless the court orders otherwise." The wording of the provision is permissive, not mandatory.
[10] Article 3 of the United Nations Convention on the Rights of the Child, ratified by Canada in 1991, provides in part that "[i[n 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."
[11] Article 12 of the same provides as follows:
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.
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.
[12] The decision whether or not to appoint a lawyer for children is a discretionary decision which should focus on the best interests of the children. Deference is owed to a motion judge's assessment of the advantages and disadvantages of such an appointment: Fiorito v. Wiggins, 2014 ONCA 603.
[13] As Fleury J. noted in Reynolds v. Reynolds, [1996] O.J. No. 2230, at para. 3:
This remedy [appointing a lawyer for the children] should not be available only for the asking. In as much as it implicates the children very directly in the entire litigation, it is a very blunt instrument indeed. It can cause untold harm to impressionable children who may feel suddenly inappropriately empowered against their parents in a context where the children should be protected as much as possible from the contest being waged over their future care and custody. All actions involving custody and access over children should be governed by one paramount consideration: no one should be allowed to act in a way that might endanger their well-being. The test of "the best interests of the children" as insipid and fluid as it might be, still remains the benchmark against which any person wishing to interfere in their lives should be measured.
The comments in this case can be easily applied to the circumstances in the case at bar. An order from a court requesting the involvement of the Office of the Children's Lawyer does not and should not occur simply because the request is made by one of the parties to the litigation. These orders should be made with due care and consideration to the issues in the particular case.
[34] In the case of Pang v. Pang, Justice Lemon refused the father's request for an appointment of the Office of the Children's Lawyer. He stated:
[10] On June 18, 2008, Dunn J. ordered (by temporary without prejudice consent) that the applicant would have sole custody of the child. Initially, the respondent did not dispute custody because he believed that the child was, possibly, not his. In his amended answer, he now wishes to dispute custody. His greatest concern with respect to custody seems to be that the mother is thwarting access. If she is, that will certainly be a significant issue in a custody application. For now, the father's concern can be resolved in a more expeditious fashion by steady access. The mother pleads that the appointment of the Children's Lawyer would delay this action. I agree and dismiss the father's request for an appointment of the Children's Lawyer.
It would appear that Justice Lemon was somewhat concerned about the motives for the request in that case and declined to make the order. Certainly, if the request for the OCL involvement is being made by one of the parties with the wrong motives in mind, this is something that should be considered by the court in deciding whether to grant or refuse the motion.
[35] In the case of Price-Clement v. Purdy, 2009 ONCJ 253, Justice Zisman expressed great frustration at the bureaucratic process involved in obtaining the assistance of the Office of the Children's Lawyer, as it had unfolded in that case. However, despite the frustration of the court, Justice Zisman stated:
I do not wish to be understood as saying the Office of the Children's Lawyer is not a useful service. In fact, in the cases where children are represented by that office, its services to the court are extremely useful in assisting the families and the court. In most cases, the involvement of the Office of the Children's Lawyer is pivotal in resolving cases without the need for trial. However, there still needs to be a more timely and focused approach to ensure that the families and court receive the assistance they need in contested custody and access proceedings.
Justice Zisman again made the order requesting the appointment of the Office of the Children's Lawyer. The children in this case were 3 and 4 years of age.
Test for OCL Involvement
[36] Where the issue for the court to determine is that of the best interests of the child, as it is in the case at bar, the question the court should ask itself is whether the involvement of the Office of the Children's Lawyer will likely be helpful in determining what is in the best interests of the child ultimately. This may include a consideration of the age of the child and the ability of the particular child to express his or her views. There should be no bright line age cut-off whereby it is determined that the child is too young to effectively participate in the process. Every child is different. Many very young children are extremely articulate and quite capable of expressing their thoughts and opinions; on the other hand, there may be older children who are very quiet or withdrawn to the point of not being able to share their thoughts. This should be determined on a case by case basis. The Court should also consider whether the involvement of the Office of the Children's Lawyer is in the best interests of the child, considering other factors external to the child, but factors that will ultimately affect the child, such as any delays that will be caused in the proceedings, and any harm that might be caused to the child by the involvement of the Office of the Children's Lawyer.
[37] At the end of the day, it is a balancing exercise that must be performed in each case to weigh and consider these factors, and to ultimately determine whether making such an order promotes the best interests of the child.
Application to This Case
[38] Mr. Talbot, on behalf of Janene Flood, has suggested that the report from the Office of the Children's Lawyer will include an opinion, and that the opinion should be subjected to the Mohan / White Burgess test for the admission of expert evidence. Mr. Talbot conceded that the opinions of the Children's Lawyer will be relevant, however, argued that it is not necessary. Further, he argued that this will cause delay and that very little weight should be accorded to the views of a 4 year old child. No authority has been provided to this court to suggest that a Mohan/White Burgess analysis should be performed by the court in determining whether to make an order requesting the involvement of the Office of the Children's Lawyer. In fact, rule 21 of the Family Law Rules states:
REPORT OF CHILDREN'S LAWYER
- When the Children's Lawyer investigates and reports on custody of or access to a child under section 112 of the Courts of Justice Act,
(a) the Children's Lawyer shall first serve notice on the parties and file it;
(b) the parties shall, from the time they are served with the notice, serve the Children's Lawyer with every document in the case that involves the child's custody, access, support, health or education, as if the Children's Lawyer were a party in the case;
(c) the Children's Lawyer has the same rights as a party to document disclosure (rule 19) and questioning witnesses (rule 20) about any matter involving the child's custody, access, support, health or education;
(d) within 90 days after serving the notice under clause (a), the Children's Lawyer shall serve a report on the parties and file it;
(e) within 30 days after being served with the report, a party may serve and file a statement disputing anything in it; and
(f) the trial shall not be held and the court shall not make a final order in the case until the 30 days referred to in clause (e) expire or the parties file a statement giving up their right to that time.
There is absolutely no suggestion in the legislation that the report is only admissible if it passes the test for the admission of expert evidence. In fact, this rule would suggest that the report, once prepared, can simply be filed and becomes part of the court record. The parties may then dispute anything contained in the report within 30 days.
[39] Ms. Haner, on behalf of Mr. Ollington, also raised concerns about unnecessary delay in this case, especially since the parties are well represented and can inform the court of what each party has to offer E. It is the view of this court that the involvement of the Office of the Children's Lawyer provides much more than simply the views of the parties as to what they can offer E. It is an opportunity for E. herself to have a voice in these proceedings.
[40] E. is 4 years old. She attends daycare in Gore Bay, which she has been doing since September 2017. There is evidence in this case from all parties that E. expresses herself and her wishes, expresses her emotions, and demonstrates her likes and dislikes. She has the ability to speak and articulate her thoughts and opinions. However, the parties do not agree as to what are the wishes and desires of E. This court has every confidence that the Office of the Children's Lawyer will be able to ascertain the views of E. There has been no suggestion that E. is a child who is particularly vulnerable in the sense that she will be harmed by this process. While the involvement of the Office of the Children's Lawyer may cause some delay in the proceedings, the respondents are permitted and encouraged to argue their motions for temporary custody and access on the basis of the available record. I note that Mr. Ollington did not file a timely answer in this case, in fact it was nearly 5 months from the time he was served. Further, any final determination of this matter must be done responsibly with as much information as possible in order to make a determination on the best interests of E. In this case, expediency of a final outcome without a complete record is not in the best interests of this child.
[41] There will be some complex factual issues to consider in this case, given that the views of the parties are diametrically opposed, including, but not limited to:
(1) the dynamics of the relationship between Ron Ollington and Janene Flood, including allegations of domestic violence;
(2) whether E. was present to witness any domestic violence;
(3) the current state of the relationship between Janene Flood and Ron Ollington, whether the relationship is expected to continue, and whether domestic violence is expected to continue;
(4) displays of anger and aggressive behaviour by Janene Flood in the presence of or directed at E.;
(5) any substance abuse issues that Janene Flood has had in the past and continues to experience;
(6) the financial stability of Janene Flood to care for E.;
(7) any substance abuse issues that Ron Ollington has had in the past and continues to experience;
(8) displays of anger and aggressive behaviour by Ron Ollington in the presence of or directed at E.;
(9) E.'s views of her past and current living arrangement;
(10) E.'s view of the people in her life
Any input that E. can give on these issues would be of great assistance in determining the facts in this case, as there is great disagreement between the interested parties. The views of E. will be expressed through a neutral, detached party.
[42] It is also of note that the Children's Aid Society has been involved with this family in the past. According to Janene Flood, the involvement started in October 2014 because a neighbour heard some yelling from her apartment and they were concerned about what was taking place in the apartment. While this is not a child protection case, there are certainly child protection overtones. This is yet another factor weighing in favour of having the involvement of the Office of the Children's Lawyer.
[43] This court is not, at this time, determining the outcome of the grandparents' application for custody. It has been suggested that the applicants want the involvement of the Office of the Children's Lawyer to advance their claim for custody. The fact of the matter is that no one knows what information or opinions the Office of the Children's Lawyer will bring to this matter. This may, in fact, support the biological parents. However, it is the view of this court that there is sufficient merit in all of the claims brought, both by the grandparents and the parents, to appoint the Office of the Children's Lawyer. All parties will be free to dispute any of the factual findings or recommendations in any report generated or submissions made, should the Office of the Children's Lawyer accept the referral.
Decision
[44] This motion is granted and an order is made as follows:
(1) For an order, pursuant to s. 89 and 112 of the Courts of Justice Act, that the Office of the Children's Lawyer be requested to cause an investigation to be made of the circumstances of the claims for custody and or access to the child, E., born […], within this proceeding
(2) The method of investigation, whether by clinical assessment or appointment of legal representation for the child, is to be assessed and determined by the Office of the Children's Lawyer;
(3) Costs are reserved for submissions on the issue.
Released: November 26, 2018
Signed: Justice V. Christie
