ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FS-09-352141-0001
DATE: 20120807

Pursuant to s.70(1)(b) of the Children’s Law Reform Act, publication of details that will disclose the identity of the children is prohibited.

BETWEEN:

K.S.W. Applicant/Respondent in Motion to Change – and – S.W. Respondent/Applicant in Motion to Change

Lorna Yates, for the Applicant/Respondent in the Motion to Change
Jeffery Wilson, for the Respondent/Applicant in the Motion to Change

HEARD: August 2, 2012

kiteley j.

reasons for decision

[ 1 ] The parents have three children: P. who is 18, D. who is 15 and H.h who is 12. This is a motion pursuant to rule 4(7) of the Family Law Rules by the mother to appoint private counsel for D. and H..

[ 2 ] The parties separated in 2008 and the legal proceedings began in 2009. In 2010 to 2011, Dr. Butkowsky conducted an assessment of the needs of the children and prepared a report. By agreement, the report was not provided to the parties. On the basis of the recommendations that were shared, on October 18, 2011, the parents agreed to a Final Consent Order re Parenting which was made by Jennings J. at the outset of a trial on financial issues. According to the order, the mother had custody and primary residence. During the trial before Jennings J., the mother said in evidence that she had no intention of selling the matrimonial home (in which she resided with the children) for the next “year or two” because the children needed stability and needed to “take a big breath”.

[ 3 ] The reasons for decision on the financial issues by Jennings J. were released in June, 2012.

[ 4 ] In May 2012, the mother indicated an intention to move with D. and H. to Los Angeles or alternatively to the Kawartha Lakes Region [1] in time for the beginning of school in September 2012. The father did not agree with the move. He launched a Motion to Change Proceeding in which he asked for a change in custody, access, and the residential arrangement for the children. He also asked for an order that the parents and the children engage in an intensive family re-unification program and an order prohibiting the wife from re-locating with the children in the immediate future. The mother launched a motion in which she seeks a court order permitting the move to Los Angeles.

[ 5 ] On July 5 th , 2012, at the first appearance for those motions, Czutrin J. made an order that established a timetable for a case conference on Wednesday August 22 nd before him and including filing of affidavits and questioning before that attendance. He indicated that at the case conference, the next steps would be directed. On consent, Czutrin J. made an order asking the OCL to become involved. In his endorsement, he indicated that he urged the OCL to consider “this high conflict case.” At that time, the parents agreed that the children should have a voice in the Motion to Change Proceeding.

[ 6 ] On July 11, 2012, the OCL declined to become involved because of “timing issues”. The message was that the OCL could not respond and take a position by August 22 nd .

[ 7 ] On July 26, 2012 I heard a motion brought on behalf of the mother in which she asked for the appointment of a private lawyer for the children. That motion was strenuously opposed by the father. I heard submissions and made an endorsement on July 27 th in which I adjourned the motion to August 2 nd on terms including questioning of the mother for not more than two hours on the objective and the role that a private lawyer would play if appointed.

[ 8 ] After the hearing on July 26 th , it was agreed by the parents that father would have a visit with the children on Saturday July 28 th . Father picked up the children. Both got into his car. They had brought a digital recording device. I was given a transcript of what was said over the next 14 minutes. At Mr. Wilson’s request, I also listened to the recording of what had occurred. D. had sent a copy of the recording to both his parents. I observed to counsel and the parents that the recording was one of the saddest things I had ever heard. I will refer to this as a “conversation” but it was clearly an opportunity created by D. for him to record for both of their parents that they were tired of the “squabbling” and that they wanted to be heard and an opportunity to express his views and preferences about the move to Los Angeles. H.’s participation and role is less clear than is D.’s.

[ 9 ] On July 30 th , the mother did attend for the cross-examination I had directed. Mr. Wilson did not ask questions on the intended topic, namely the objective and the role that a private lawyer would play if appointed.

[ 10 ] On July 30 th , a fresh motion was served on behalf of the father in which he sought the re-appointment of Dr. Irwin Butkowsky to update his assessment and determine if the children are capable of instruct counsel, and in which he sought a sealing order.

[ 11 ] In the material filed for her motion returnable July 26 th , counsel for the mother provided information about five possible lawyers, all of whom had provided c.v.’s, had acted for children in the past and were available. For the return date of the motion on August 2 nd , one additional lawyer was identified.

Analysis

(a) Jurisdiction

[ 12 ] Section 64 of the Children’s Law Reform Act indicates that “where possible”, the court shall take into consideration the views and preferences of the child to the extent that the child is able to express them.

[ 13 ] This is not an appointment of the OCL. Rather, the authority for the order is found in rule 4(7) of the Family Law Rules which provides as follows:

Lawyer for Child

4(7) In 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.

[ 14 ] I have the jurisdiction to make an order authorizing a lawyer or lawyers to represent D. and H.. [2]

[ 15 ] The thrust of the submissions focused on two issues. The first is whether in this case, I should exercise my discretion and make the appointment. The second is, if I do authorize a lawyer to “represent the child”, what powers and authority the appointed lawyer(s) would have. In other words, what does “represent” mean in the context of rule 4(7)? The two issues are inter-related. By appearing to consider them serially, I would not want to leave the impression that they are distinct criteria. I simply had to start somewhere.

(b) Exercise of Discretion

[ 16 ] As noted in Puszczak v. Puszczak [3] the case law in Canada is not highly developed in setting out guidelines to determine when counsel should be appointed in private custody disputes and how that should be accomplished. Ms. Yates relied on the decision in Children’s Aid Society of Durham (County) v. S(A) [4] in which Justice Margaret Scott set out criteria. Mr. Wilson pointed out that those criteria were developed in the different legislative context of s. 38 of the Child and Family Services Act .

[ 17 ] Counsel on behalf of mother strongly advocates for the appointment of private counsel.

[ 18 ] Counsel on behalf of father strongly advocates that the appointment of private counsel ought not to be made or that the request is premature.

[ 19 ] As indicated above, one of the orders requested by the father is for access to an intensive family re-unification program. Mr. Wilson argued that giving the children a lawyer may make any therapeutic intervention all the more difficult to achieve, particularly since the mother has rejected the father’s suggestion that the move be postponed at least until January 2013 to give a therapeutic intervention the opportunity to work.

[ 20 ] Also as indicated above, the father had brought a new motion returnable August 2, 2012 for an order for an updated assessment. I did not hear that motion. However, Mr. Wilson took the position that, before the court appoints private counsel, an updated assessment is necessary or a fresh assessment. Dr. Butkowsky was away at the time of preparation for this motion and neither counsel was aware of his availability to prepare an updated assessment.

[ 21 ] Mr. Wilson argued that the remedy sought was extraordinary and that a step of this nature requires a complete record. He suggested that the motion should not proceed until a complete evidentiary record was available after comprehensive questioning and after the case conference on August 22 nd . [5]

[ 22 ] I accept the father’s concern that the children are now so closely aligned with mother’s legal position, that it would be impossible for them to articulate a view that was different from hers and that the appointment of counsel will serve only to reinforce that view. I agree with the father that the alignment of the children is demonstrated in the transcript of the “conversation” on Saturday July 28 th and the vocabulary used by both children but particularly by D.. They could only have acquired vocabulary such as “alienation of affection” and “take us to a private lawyer” from their mother. I understand the perspective expressed by Dr. Sol Goldstein (who has not seen or interviewed the children but relied on his reading of the report of Dr. Butkowsky and information obtained from the father) that appointing counsel for the children would be counterproductive.

[ 23 ] I exercise my discretion to appoint a lawyer for each child on a narrow basis. On July 5 th , the parents agreed that the children should have a voice and that the way in which to hear their voices was through the OCL. Father still agrees that the children should have a voice. He differs from the mother in that he wants to impose conditions: either that there be an updated assessment (or fresh assessment) or there be an opportunity for the family to engage in a therapeutic intervention.

[ 24 ] The children have an expectation of having their voices heard, whether it be from a letter the father wrote to D., or more likely, from the information provided by the mother. I consider it both necessary and desirable that a lawyer be authorized for the purpose of ensuring that they have a voice. I expect that if their views and preferences remain aligned with mother, that counsel for the father will argue that that alignment was inevitable and that no weight should be given to them. [6] Even so, the court should have their views and preferences and the children should have the opportunity to have those views and preferences be heard.

[ 25 ] On March 22, 2012 I heard a motion brought by the father for an order requiring Dr. Butkowsky to file his final report with the court and to provide copies to each party. In the unusual circumstances that existed I refused to grant the order and held that it was only to be produced to the parents if it had been requested by one of the professionals involved with the family. [7] As a result of hearing that motion, I gained an understanding of the circumstances of D. to which he made reference in the recorded “conversation” on Saturday August 28 th . His personal circumstances are unique and have been critical in recent months. I consider that it is in the best interests particularly of D. who has been seriously affected by the dispute between his parents that has lasted too many years. This is a case where, if counsel is appointed for D., counsel must also be appointed for H. in order that they both have an opportunity to have their voices heard in this crucial decision about a move to Los Angeles (or indeed to the Kawartha Lakes) given the impact such a move would inevitably have on their relationship with their father.

[ 26 ] I am mindful that on July 26 th I adjourned the motion for questioning of the mother as to the objective and the role that a private lawyer would play if appointed and that Mr. Wilson chose not to question on that subject matter. Given the events of July 28 th , I have had to make a decision without the benefit of that evidence.

(c) Powers and Authorities of the Authorized Lawyer who “represents” the children

[ 27 ] Ms. Yates took the position that the lawyer(s) would have the right to make a full, independent inquiry of all of the circumstances relating to the best interests of the child; receive copies of all professional reports and all records relating to the child; production and discovery according to the Rules; appear and participate in the proceeding, including the right to examine and cross-examine witnesses, call evidence and make submissions including the position(s) advanced on behalf of the child; apply to be removed as the legal representative of the child if the court-appointed lawyer believes that such involvement is no longer in the child’s interests; take such appeal proceedings as deemed appropriate; and seek costs related to the proceedings. In addition, Ms. Yates asserted that the lawyer could engage a social worker to assist in carrying out her responsibilities. Furthermore, a lawyer could assess the children’s capacity to give instructions and to test the independence of their views by any means the lawyer sees fit.

[ 28 ] Mr. Wilson pointed out that the authorities relied on by Ms. Yates were largely in matters involving the Child and Family Services Act where the considerations are much different. He noted in his factum that this is a case of first precedent because there is no case where a court has granted an order such as that sought by the mother in this case. He argued that rule 4(7) is not meant to create a solicitor and client relationship where none exists, and was not intended to be used for the “exploitative purposes revealed by the recording of the children” and their father. He asserted that what is intended to be a protective measure for children is being used as a device for the mother to reinforce the influence she already has over the children.

[ 29 ] Ms. Yates proposed that the lawyers appointed would be expected to use their professional judgment in determining whether each child had the capacity to retain and instruct counsel. Mr. Wilson argued that that would constitute an unlawful delegation of the authority [8] that rests only with the court to decide whether a rule 4(7) authorization should be granted in the circumstances of an inter-parental high conflict custody dispute. I note however, that in his motion served July 30 th , the father sought an order re-appointing Dr. Butkowsky in order that he might, amongst other things, determine if the children are capable of instructing counsel.

[ 30 ] Rule 4(7) indicates that, once a lawyer has been authorized to represent the child, the child has the rights of a party, unless the court orders otherwise. The default position is that the child has the rights of a party.

[ 31 ] I do not need to enumerate what the phrase the “rights of a party” entail nor elaborate on the circumstances which should exist before an order is made creating the “rights of a party”.

[ 32 ] I am not prepared to order that D. and H. have the “rights of a party” simply because they have counsel for two reasons. First, as mentioned below, there are severe time constraints in the request by the mother that a decision be made that permits her to move to Los Angeles in time for the commencement of school in September. The reality is that calling witnesses or presenting affidavits is unlikely. I would not want to burden the appointed counsel with the responsibility of calling witnesses or presenting affidavits, a task which would be well nigh impossible to do in a professional manner. In the circumstances of this case, by imposing such expectations on the lawyers appointed, there is a real risk that neither will accept the appointment.

[ 33 ] Second, the point is to provide the children with an opportunity to express their views and preferences. To assist the court in that important but more narrow function does not require all the trappings of the “rights of a party” including, for example, such authority as to take appeal proceedings.

[ 34 ] In this case, it is imperative that the role to be played by the lawyer be narrowly defined and be confined to informing the court as to the views and preferences of the child. I consider the role the lawyers will play to be similar to that played by the OCL when it accepts a referral and provides to the court the views and preferences of the child.

[ 35 ] Because of the narrow focus of the role of the lawyers in this case, I note by way of instructions to the lawyers that I am not expecting them to evaluate the capacity of D. and H. to retain and instruct counsel because that is not what either child is doing. Appointed counsel is not expected to advocate a particular outcome based on instructions from the child. Appointed counsel is expected to advise the court as to the child’s views and preferences in accordance with s. 64 of the Children’s Law Reform Act . A formal evaluation of capacity is not required.

[ 36 ] I observe that it would be preferable if this motion had not been required. I agree with Mr. Wilson that the use of rule 4(7) in these circumstances is unfortunate. However, given that the OCL is unable to respond in a timely way, there must be a way to obtain the views and preferences of the children in this case and there are no other alternatives.

Selection of Lawyers

[ 37 ] The parents seem to agree that if I do appoint counsel, there ought to be two counsel, one for each of D. and H. in case it turns out that they have diverse instructions. All of the names put forward have merit. I have decided however, to select the two who have had recent experience working at the OCL, namely Clare Burns and Julia Tremain on the basis that the role I expect counsel will play is to advise the court as to the views and preferences of the children. Lawyers with recent, intimate knowledge of the expectations of the OCL are my preference.

[ 38 ] There is little to differentiate between Ms. Burns and Ms. Tremain in determining which will act for which child. I have decided that since Ms. Burns has had the authority of acting as the Children’s Lawyer, she should act for the older child, D. who, based on the role he played in the recorded “conversation” with their father, may have more to contribute to the proceedings than does H..

Materials to be provided to lawyers

[ 39 ] Neither counsel made specific submissions on what should be provided to the lawyers for the children. I do not restrict the lawyers as to what they might review. However, I do require them to review the report of Dr. Butkowsky and these reasons for decision. Beyond that, the decision to review or not review the affidavits filed in this Motion to Change Proceeding and in support of the mother’s motion is in their discretion.

[ 40 ] I am optimistic that Ms. Yates and Mr. Wilson will be able to agree on how to make the arrangements for D. and H. to see their respective lawyers. It will be important that neither parent be involved in the transportation arrangements.

Payment of Retainer and Ongoing Invoices

[ 41 ] I am appointing Clare Burns as one of the two lawyers. In the exhibits attached to the affidavit of Ms. Yates’ associate sworn July 31, 2012, there are emails that indicate that Ms. Burns prefers not to be informed as to the payment arrangements. For that reason, I will issue a short endorsement that deals with that issue only.

Costs of this motion

[ 42 ] I will also deal with costs in that separate endorsement.

Expectations of the Parents

[ 43 ] As indicated, father launched the Motion to Change Proceeding and mother brought her motion. The first appearance of both was on July 5, 2012. In reviewing the affidavits and having heard submissions from counsel on July 26 and August 2, it appears that the parents expect that there will be a hearing, and perhaps even a trial, in time for the decision which the mother has made to move to Los Angeles to be implemented in time for school in September, 2012. I want to inject an element of reality.

[ 44 ] On July 26 th and on August 2 nd , this very controversial motion was on the regular motions list along with other cases. As a result, I required both counsel to limit their submissions to one hour. As their clients observed, both Ms. Yates and Mr. Wilson rose to that limitation by making very focused submissions only on the essential elements of their respective positions. On both occasions, the demands of the day meant that I had to take the matter under reserve. Having dealt with family law cases during the weeks of July 16, 23 and 30, I have an appreciation for the workload in those last two weeks of August. Based on what I know about workload and available judges, I doubt that there will be a judge available to deal with these very important motions for longer than the standard one hour. I doubt that a trial judge could be made available. Justice Czutrin is the Family Law Team Leader and the assignment of judges to specific cases is within his jurisdiction. I do not mean to pre-empt the decision of Justice Czutrin however, the parents need to realize that it may be that the time that they believe the court requires to make a sound, principled decision will not be available before the start of school in September. I make this observation to implore the parents (again), to explore whether there is an alternative way to resolve these critical issues.

Existing Order Prohibiting Publication

[ 45 ] In the context of the trial in October 2011, Justice Jennings made an order prohibiting publication of any information contained in the court file regarding the father’s employment and/or departure from his employment. Such evidence was referred to in an affidavit filed in this matter. It appears that that provoked counsel to investigate and determine that the order was never implemented by administrative staff because it had not been brought to their attention. I understand that administrative staff advised that they do not have the resources to implement the order given the seven court file boxes relating to the original and current Motion to Change Proceedings. As indicated above, Mr. Wilson brought a motion to seal the court file. There was not enough time on August 2 nd and I did not hear submissions as to whether the entire file should be sealed. I leave that to another day. I note however that the original order prohibited publication. It did not direct that the file be sealed.

[ 46 ] I am however concerned that there is a tremendous amount of information in this record about D. and H.. I intend to exercise the authority I have pursuant to s.70(1)(b) of the Children’s Law Reform Act to direct that the name of the file be changed to initials to protect them. In addition, counsel for the father shall remove the CD ROM containing the recording of the “conversation” on July 28 th . I am not expecting the transcripts of the “conversation” to be removed. I have possession of the court file dealing with this motion. It will be returned to the 10 th floor on August 13 th .

ORDER TO GO AS FOLLOWS:

[ 47 ] Pursuant to rule 4(7) Clare Burns is authorized to represent D. and Julia Tremain is authorized to represent H. subject to these conditions:

(a) Their role is to determine and report to the court as to the views and preferences of D. and H. as to the possible move to Los Angeles;

(b) The materials they must review are: the report of Dr. Butkowsky and these reasons.

[ 48 ] The name of the case shall be changed to: K.S.W. v. S.W.

[ 49 ] Counsel for the father shall remove from the court file Exhibit M attached to the affidavit sworn August 2, 2012. If it is needed for further proceedings, it can be provided to the judge under his/her direction as to whether it remains in the court file.

Kiteley J.

Released: August 7, 2012

COURT FILE NO.: FS-09-352141-0001
DATE: 20120807

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

K.S.W. Applicant/Respondent in Motion to Change – and – S.W. Respondent/Applicant in Motion to Change

REASONS FOR DECISION

KITELEY J.

Released: August 7, 2012

[1] Both options are advanced by mother but the strong preference is for Los Angeles and I will deal with the motion on that basis.

[2] See also Strobridge v Strobridge (1994) 1994 875 (ON CA) , 18 O.R. (3d) 753

[3] 2005 ABCA 426 () , [2005] A.J. No. 1715

[4] 2011ONSC1001

[5] Stewart v. Stewart [2008] O.J. No. 4828 where the motion was dismissed.

[6] A.G.L. v K.B.D. 2009 943 (ON SC) , [2009] O.J. No. 180

[7] Subsequently, the report was requested by a professional and it was made available to the parents. It does contain Dr. Butkowsky’s opinion as to the views and preferences of the children at that time.

[8] C.A.M. v D.M. 2003 18880 (ON CA) , [2003] O.J. No. 3707