SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: FC-11-1365
DATE: 20120528
RE: L.G. v. R.L. and A.D.
BEFORE: J. Mackinnon J
COUNSEL:
Ginette N. Drouin-Zimola, for the Applicant
R.L., in person, Respondent
A.D., in person, Respondent
DATE HEARD: April 16, 2012
A M E N D E D E N D O R S E M E N T
This is an amendment to the Endorsement released April 24, 2012. The amendment occurs in the Style of Cause at Counsel for the Applicant.
[ 1 ] Part of the motion brought by L.G. was adjourned. The part that proceeded was for the following relief:
An order designating the City of Ottawa as the jurisdiction to hear this matter;
An order setting aside Justice Kane’s Order dated March 7, 2012;
An order directing the Ottawa Children’s Aid Society and the Département de la protection de la jeunesse (“DPJ”) to jointly investigate this matter and report to this court within 15 days; and
An order directing the Office of the Children’s Lawyer to do a full custody and access assessment in regards to the child Z.L., born […], 1997, and to designate a lawyer to represent Z..
[ 2 ] In addition, although no motion was delivered to this effect, the Applicant asked that the Respondent L.’s entire affidavit be struck as primarily based on inadmissible hearsay and conjecture. I decline to do so in the absence of notice. Should the Applicant wish to pursue this request, she may bring a motion on notice returnable before a Master.
[ 3 ] Mr. L. also asked that portions of the Applicant’s affidavit be struck as purportedly being in contravention of a non publication order made in a criminal case against him in the Yukon Territory. That order does not pertain to these proceedings and this relief is denied.
Jurisdiction
[ 4 ] Z. had lived in Ottawa with the Applicant who is his grandmother since November 2010. She has a final order for custody in her favour dated November 29, 2011. Z. went to visit his father, R.L., on Thursday, February l6, 2012 under the supervision of N.G. and was to return to the Applicant’s home on the evening of February 20, 2012. Instead she was contacted on that evening and told that Z. would not be returning home. Contrary to the final order, the Respondent L. retained Z. at his home in the province of Quebec. The applicant brought an urgent motion in Ontario for the child’s return.
[ 5 ] A separate action was commenced by the access supervisor, who is also Mr. L.’s fiancée with whom he resides, in which she seeks custody of Z.. This application was issued in Ontario on March 7, 2012 naming Mr. L., Ms. G. and Ms. D. (the child’s mother) as Respondents. Mr. L. explained in court that he and N.G. decided that it was preferable for her to be the named Applicant because he himself was still completing therapy in some way connected to the criminal conviction noted above.
[ 6 ] On these facts, it is clear that Ontario is the court with jurisdiction over Z.’s custody. Ontario was his place of ordinary residence when the process to enforce the final custody order was issued. I order that the two applications are joined and they shall proceed in the case commenced by Ms. G. with her as Applicant and the other parties as Respondents.
Justice Kane’s Order
[ 7 ] The order dated March 7, 2012 is set side. It was made in error. It is clear from Justice Kane’s endorsement that he was under the impression that Ms. G. had a motion before the court on that date but had failed to attend. That was not the case. There was no such motion nor any other event scheduled that day by Ms. G.. N.G. was in the courthouse that day issuing her own application. She cannot explain how the case happened to be called but she heard the page. She attended before Justice Kane on her own and, as she says, she brought him up to date as to what was happening. On that basis, he made an order that she or Mr. L. could register Z. for school in Quebec.
[ 8 ] Not only was the order made without notice to Ms. G., it was also made without any Notice of Motion for the relief ordered being before the court. The order cannot stand.
Investigation by the Ottawa CAS and the Gatineau DPJ
[ 9 ] The applicant maintains that Z. is 14 years old but has the mentality of an 11 year old child and does not know what is in his best interests. She says that Mr. L. has an extensive background with the Ottawa CAS and lost custody of two children due to sexual abuse allegations. The Ottawa CAS was involved in September 2010 to investigate allegations that he had sexually abused Ms. D.’ daughters. The investigation is complete and the allegations of sexual abuse were verified. The CAS wrote to Ms. D. advising that she should not allow Mr. L. to be in a care giving role or unsupervised with any children.
[ 10 ] As noted, the final order granting Ms. G. custody of Z. was made on consent and provided that his access to Z. must be fully supervised.
[ 11 ] Mr. L. alleges that Z. is staying with him at his own request because of things that allegedly happened at his grandmother’s house. If true, these are serious allegations. Mr. L. says that the DPJ has already been notified and has been asked to get involved with Z..
[ 12 ] For these reasons, it would be desirable for the court to receive a report from both agencies with respect to the past care received by Z. in Ms. G.’s home, his complaints if any to this father, and whether it would be in his best interests to return to Ms. G. or to remain with his father. The Applicant shall forthwith deliver a copy of my endorsement to the Executive Director of each of the Ottawa CAS and the Gatineau DPJ so that both will be informed of the Court’s request to provide the Court with a written report on these issues as known to them within 21 days.
Office of the Children’s Lawyer
[ 13 ] In my view, this request should be deferred until the CAS and DPJ provide their reports to the Court. A clinical investigation by the OCL may or may not be necessary having regard to what those reports reveal. It may also be that those reports will assist the Court in determining whether independent representation for Z. is desirable. Accordingly, permission is given to any party to return a motion seeking OCL involvement after those reports are available.
Costs
[ 14 ] The Applicant requested permission to make written submissions on costs after receipt of this endorsement. She may do so within two weeks hereof, not to exceed two pages plus necessary attachments. The Respondents may reply within in a further two weeks subject to the same page limitation. If necessary, the Applicant may then deliver a brief reply within three further days.
J. Mackinnon J
RELEASED: May 28, 2012
COURT FILE NO.: FC-11-1365
SUPERIOR COURT OF JUSTICE - ONTARIO RE: L.G. v. R.L. and A.D. BEFORE: J. Mackinnon J COUNSEL: Ginette N. Drouin-Zimola, for the Applicant R.L., in person, Respondent A.D., in person, Respondent ENDORSEMENT J. Mackinnon J
RELEASED: May 28, 2012