Taylor v. DeJong, 2015 ONSC 715

COURT FILE NO.: F925/14

DATE: February 5, 2015

SUPERIOR COURT OF JUSTICE – ONTARIO

FAMILY COURT

RE: Auston-Rylie Jacob Taylor, Applicant

AND:

Jasmine Alyssa DeJong, Respondent

BEFORE: MITROW J.

COUNSEL: Auston-Rylie Jacob Taylor in person

Jasmine Alyssa DeJong in person

HEARD: January 26, 2015

ENDORSEMENT

Introduction

[1] The primary developing issue in this case is the right of an infant parent, who is a party, to have legal representation in a custody and access proceeding.

[2] A second and related issue is whether the Children’s Lawyer is prepared to act as the minor party’s representative pursuant to r. 4(3) of the Family Law Rules, O.Reg. 114/99.

[3] As is explained below, there are developing issues and the court is not in a position to make a decision. The court requires the assistance of further submissions.

The Relevant Facts

[4] The applicant and the respondent are the father and mother of a child born January 23, 2014.

[5] The applicant father is 20 years of age (born November 30, 1994). The respondent mother is 16 years of age (born April 3, 1998). The respondent was age 15 when the child was born.

[6] The applicant commenced the current application by way of application issued June 10, 2014. He sought custody of the child and in the alternative access. The respondent in her answer seeks custody (and in the alternative access), child support and “guardianship over the child’s property”. On September 16, 2014, this matter came on before me for a case conference. At that time both parties were self-represented. However, the paternal grandmother was present to assist the applicant.

[7] At that time and based on the evidence in the Form 35.1 Affidavits and the agreement of the parties, an order was made on consent and on a “temporary temporary basis” providing that the respondent shall have primary care of the child on a without prejudice basis and further the order provided that if the parties were unable to agree to a schedule of time for the applicant to be with the child, then a motion may be brought by either party.

[8] My endorsement at that time expressed a significant concern as to the young ages of the parents. The endorsement noted that the Society was involved with the mother and the order included a requirement that the clerk forward a copy of the reasons, the order and a copy of the continuing record to the Children’s Aid Society of London and Middlesex. The Society has not participated in this proceeding.

[9] At that time an order was made for the involvement of the Children’s Lawyer and the standard form order was signed, the effect of which was to request that the Children’s Lawyer provide legal representation pursuant to s. 89(3.1) of the Courts of Justice Act, R.S.O. 1990, c. C.43 [as am. by S.O. 1991, c.46] or, alternatively, that the Children’s Lawyer to conduct an investigation and report under s. 112 of the Courts of Justice Act. That order did identify that the respondent herself was a minor in addition to the subject child.

[10] By letter dated October 1, 2014, the Children’s Lawyer accepted this case and agreed to a s. 112 investigation and report.

[11] By letter dated January 5, 2015, the Children’s Lawyer forwarded to the clerk of the court an original copy of the report of the Children’s Lawyer (which is filed at tab 6 of the continuing record).

[12] This matter next came before me on January 5, 2015 for a settlement conference. Both parties were present and self-represented. However, the formal process of a settlement conference was not conducted.

[13] The parties had been engaging in mediation and the parties had negotiated a mediated agreement for an interim order for custody and access.

[14] The proposed interim order requested by the parties, pursuant to the mediated settlement, included a temporary order that the applicant and respondent have joint custody with primary residence at the home of the respondent. The agreement also set out the schedule for the applicant to have interim access.

[15] On January 5, 2015, at the court’s request, Ms. Kathleen Chapman, an experienced senior family law lawyer, and also a mediator, attended to assist the court as Ms. Chapman had conducted the mediation.

[16] The court did express concern to Ms. Chapman about the ages of the parties, and in particular the fact that the respondent mother was a minor.

[17] At that hearing Ms. Chapman provided the court with some assistance as to the process in mediating this matter, without disclosing any confidences discussed during mediation. However, Ms. Chapman advised the court that she had not been aware that the Children’s Lawyer had appointed a clinician to conduct an investigation and it was Ms. Chapman’s position that had she been aware of that process, she would have contacted the clinician during the course of the mediation.

[18] On January 5, 2015, an order was made adjourning this matter to January 21, 2015, before me, to deal with the approval of the mediated settlement and to deal with whether an order should be made for representation of the mother.

[19] The order also provided that the Children’s Lawyer is requested, but not ordered, to assist the court on that day by having counsel present to make submissions as to whether the respondent should be represented by counsel and, if so, whether the Children’s Lawyer should represent the respondent.

[20] On January 21, 2015, this matter came back before me. Ms. Chapman was present to assist the court and Mr. Salim Khot appeared as agent for the Children’s Lawyer. Both parties were present and self-represented.

[21] Unfortunately, because of administrative difficulties and the file not being available, the approval of the mediated settlement for an interim order was not dealt with.

[22] The court did continue to express its concern as to whether the respondent should be represented by legal counsel or alternatively whether the court should authorize a person to act as representative of the respondent pursuant to R. 4.

[23] My endorsement on January 21, 2015, in part, states as follows:

I am grateful for the assistance, today, of Mr. Khot and Ms. Chapman. Mr. Khot was unable to advise the court whether the OCL had a blanket policy of refusing to act for minor parents pursuant to r. 4(3). Mother is aged 16, but has indicated she intends to apply for legal aid. The issue of the options available to a court, when the court is of the view that a minor parent requires representation, but there is no person to fill that role and the OCL refuses to consent to be the child’s “representative” under r. 4(3), it is not yet before the court on the current facts.

[24] Accordingly, on January 21, 2014, an order was made that included adjourning this matter before me to January 26, 2015 to deal with whether an interim order should be made in accordance with the mediated settlement and requiring the respondent to apply for a legal aid certificate, immediately, and then reporting her progress in that regard to the court on January 26, 2015.

[25] The respondent had indicated that day that she was interested in having legal representation and applying for a legal aid certificate.

[26] On January 26, 2015, this matter came back before me. Procedurally, this was a continuation of a settlement conference, but the matter instead proceeded in relation to the procedural issues discussed in these reasons. At that time, two duty counsel were present to assist the parties: Ms. Nussbaum for the applicant and Ms. Barrington for the respondent. Both parties were present and, in addition, Ms. Chapman was present to assist the court.

[27] The respondent reported that she had in fact applied for legal aid and the respondent filed as Exhibit 1 a copy of a letter from Legal Aid Ontario dated January 22, 2015. This letter included the following:

a. The respondent was advised that her application for Legal Aid dated January 21, 2015 was refused for “representation regarding Family Law issues. Tariff maximum of 12 hours for all services prior to the first pretrial.”

b. The letter stated that the application was refused for the following reasons:

You are being referred to Legal Aid Ontario Duty Counsel lawyer services for more assistance with your matter. A Duty Counsel lawyer will be in a better position to determine your eligibility for further Legal Aid services. You should speak with a Duty Counsel lawyer at your next court appearance. LAO will be in a position to determine your eligibility for further LAO services, once you have consulted with Duty Counsel.

[28] During the course of submissions made that day, the respondent’s duty counsel, Ms. Barrington, explained that if the matter was not complex, then representation would most likely proceed by way of duty counsel. The court was left with the impression that in order for a Legal Aid certificate to issue, that information had to be provided by duty counsel that the matter was of a complexity sufficient to justify the issuance of a Legal Aid certificate. It was not apparent based on the submissions made that day that duty counsel was of the view that this matter was of sufficient complexity to make that recommendation.

[29] Also, during the course of the submissions, the respondent did advise the court that she wished to have her own lawyer who would represent her in these proceedings, rather than duty counsel.

[30] It was not at all clear from the submissions made that the respondent would be entitled to have her own lawyer represent her in this case pursuant to a Legal Aid certificate. It appears that she is entitled to have duty counsel represent her.

[31] The issue that arises is the right of the minor respondent to be represented by her own lawyer pursuant to a legal aid certificate, and to what extent that right should hinge on an assessment by duty counsel as to whether the matter has sufficient complexity.

[32] The recent decision of the Divisional Court in C.M.M. v. D.G.C. and J.M., 2015 ONSC 39 (Div. Ct.) dealt with the issue of representation of a “special party” pursuant to the Family Law Rules and whether the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 should be “imported” into the Family Law Rules to require that a party who is a minor in a family law proceeding should be represented by a litigation guardian. That case dealt with a fifteen-year old child who was making a claim for child support against her father. The child was age 14 when she commenced the application. That case also examined the definition of “special party” in r. 2(1) of the Family Law Rules. In applying C.M.M., and the discussion in that case as to the meaning of a “special party”, it is apparent that the respondent, given her age, is a “special party”.

[33] In C.M.M., the Divisional Court found that the Family Law Rules provide their own code for the participation of children in family law proceedings “that does not require the need for a litigation guardian”: see para. 82.

[34] In the present case, the court has noted its concern as to whether the respondent has the right to be represented by her own lawyer. Given the information provided thus far, it appears that the respondent is entitled to be represented by duty counsel. Not clear, however, is whether the respondent will be afforded her own lawyer pursuant to a legal aid certificate; this seems to turn on duty counsel’s view as to the complexity of the case.

[35] If the respondent is not entitled to have her own lawyer, and is required to rely on duty counsel at various court appearances, the issue becomes whether this is sufficient legal representation of a special party.

[36] I hasten to add that the discussion in these reasons is not to be taken as a criticism of the duty counsel; in fact, I commend duty counsel on the excellent work that they do in assisting this court by providing representation for self-represented parties. In Family Court there are many days where there are long lists of cases and the court would not be able to function as efficiently as it does without the able assistance of duty counsel.

[37] If the situation is that the respondent is limited only to duty counsel services, the issue then arises whether there should be representation of a special party pursuant to r. 4(2) or 4(3) that provides as follows:

PRIVATE REPRESENTATION OF SPECIAL PARTY

(2) The court may authorize a person to represent a special party if the person is,

(a) appropriate for the task; and

(b) willing to act as representative.

PUBLIC LAW OFFICER TO REPRESENT SPECIAL PARTY

(3) If there is no appropriate person willing to act as a special party’s representative, the court may authorize the Children’s Lawyer or the Public Guardian and Trustee to act as representative, but only with that official’s consent.

[38] An issue may arise as to what order a court should make in this case, if any, if the respondent is not able to have legal representation pursuant to a Legal Aid certificate and if there is no one willing to act (and who the court is prepared to approve) as representative of the respondent pursuant to r. 4(2).

[39] In circumstances where the respondent does not have her own lawyer, and no one is appointed under r. 4(2), this raises a consideration of r. 4(3). The potential question arises as to whether the Children’s Lawyer will agree to act as the respondent’s representative pursuant to r. 4(3). A corollary question is whether the Children’s Lawyer has a specific policy as to whether to act as the representative of minor parties pursuant to r. 4(3) in custody/access proceedings.

[40] As an aside, it is noted that s. 38(5) of the Child and Family Services Act, R.S.O. 1990, c. C.11 [as amended] provides that when a child’s parent is less than 18 years of age, the Children’s Lawyer shall represent the parent in a protection proceeding unless the court orders otherwise. By contrast, the Courts of Justice Act s. 89(3.1) states 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.

[41] There appears at the surface to be some difference in representation in protection proceedings versus custody and access proceedings. In protection proceedings, the Children’s Lawyer provides legal representation to both the subject child (pursuant to an order under s. 38(3)) and also to a minor parent (pursuant to s. 38(5)). The Children’s Lawyer has no discretion to refuse to act under either subsection. There can be circumstances in one protection proceeding, for example, where the Children’s Lawyer appoints different lawyers to represent the subject child and the minor parent.

[42] In custody and access proceedings, however, the wording of s. 89(3.1) restricts “legal representation” to a child who is not a party. Instead, r. 4(3) speaks about the potential of the Children’s Lawyer acting as the special party’s “representative”. The question can be asked whether this means, or includes, “legal representative”?

[43] The order made on January 26, 2015 included a provision that the remaining issues of the representation of the mother, and of approving the mediated settlement, are reserved. That order further provided that the matter is adjourned to March 4, 2015 to hear submissions on the issues of representation of the mother and approval of the mediated settlement unless that date is vacated when this decision is released.

[44] The order below is designed to provide the court with further assistance to deal with the issues that are canvassed in these reasons.

[45] Further, I am not prepared at this time to approve the mediated settlement until the issue of the respondent’s entitlement to representation, whether legal representation or pursuant to r. 4, has been resolved. Further, in relation to approval of the mediated settlement, Ms. Chapman had indicated that she would like to conduct some further mediation with the parties that takes into account the information contained in the s. 112 report prepared by the Children’s Lawyer.

[46] I have also directed that these reasons be forwarded to the Attorney General of Ontario and also to Justice for Children and Youth, who were the two interveners before the Divisional Court in C.M.M. Further, I am directing that these reasons be forwarded to Legal Aid Ontario.

ORDER

[47] For the reasons set out above, the following order is made:

1. The following issues are adjourned for argument on March 4, 2015 at 10:00 a.m. before me:

a. The issue of the approval of the mediated consent endorsement request filed in the continuing record at Tab 7.

b. Is the minor respondent entitled to have a lawyer of her own choosing pursuant a Legal Aid certificate or is the respondent to be restricted to legal representation by duty counsel?

c. If the court is of the view that the respondent is entitled to legal representation by a lawyer via a Legal Aid Certificate, and if a Legal Aid Certificate is not granted to the respondent, does the court have jurisdiction to order that there be legal representation for the respondent and, if so, who should pay for the legal representation?

d. Is this a proper case for the Children’s Lawyer to be appointed as the representative of the respondent pursuant to r. 4(3) of the Family Law Rules and, if so, will the Children’s Lawyer consent to act in that capacity?

e. If the Children’s Lawyer refuses to act as representative of the respondent pursuant to r. 4(3), and if the court is of the view that such an order is appropriate, does the court have any jurisdiction to order the Children’s Lawyer to act as the respondent’s representative and, if so, should the court exercise that jurisdiction?

2. Counsel for the Children’s Lawyer shall appear at the above date to assist the court with the position of the Children’s Lawyer as to the various issues as set out in this order, but this order is without prejudice to the right of the Children’s Lawyer to make submissions that the Children’s Lawyer should not be required to participate in this proceeding;

3. The clerk of this court forthwith shall forward these reasons and the order to the Attorney General of Ontario, Justice for Children and Youth and Legal Aid Ontario (care of the area Director at London District). If any of those parties wish to participate and make submissions on the issues to be dealt with on March 4, 2015, then that party shall, at least 10 days prior to the court date, serve and file a form 14B motion requesting to participate as an intervener;

4. The clerk also shall forward these reasons and the order to both duty counsel, Ms. Nussbaum and Ms. Barrington, and also to Ms. Chapman, Mr. Khot and the parties.

[48] If the applicant or respondent intend to file any motion or affidavit material in relation to the matters scheduled to be dealt with on March 4, 2015, then that material shall be served and filed within 14 days of the date of this order.

[49] If any of the parties mentioned in paragraph 3 of this order have served a motion requesting to participate in the hearing set for March 4, 2015, then such party may serve and file any affidavit or other material that that party intends to rely on by noon on March 2, 2015.

“Justice Victor Mitrow”

Justice Victor Mitrow

Date: February 5, 2015