Court File No.: FC1787/13-01 Date: April 11, 2022 Superior Court of Justice – Ontario Family Court

Re: Adam Edward Campbell, applicant And: Katie Campbell, respondent

Before: Tobin J.

Counsel: Adam Edward Campbell in person Katie Campbell in person

Heard: April 4, 2022, by videoconference

Endorsement

The Motion

[1] The issue on this motion is whether the court should request the Children’s Lawyer become involved in this case.

[2] The respondent (“mother”) wants the Children’s Lawyer to become involved. The applicant (“father”) does not.

Facts

[3] The parties are the parents of Chloe Elise Campbell, born July 25, 2013 (“the child”).

[4] Following a 20-day trial before McSorley J., reasons were released by the court on July 19, 2017, and subsequently amended on July 25, 2017, and August 24, 2017.

[5] The court ordered that the parties share parenting of the child in a parallel parenting arrangement on a week-about schedule. On the week that the child is not with one parent, that parent is to have overnight parenting time from Tuesday after school until the start of school on Wednesday.

[6] The order contains many other details of how the parallel parenting arrangement is to occur. One of the details of concern in this motion is that parenting time exchanges are to take place primarily at the child’s school. When school is not in session, parenting time exchanges are to take place at Merrymount. If Merrymount is closed, the parent starting his or her parenting week is to pick the child up at the other parent’s home.

[7] The father started a case to change certain aspects of the parallel parenting arrangement.

[8] By motion to change issued May 31, 2019, the father seeks an order changing the parallel parenting arrangement by amending: the summer parenting time arrangements; cancelling midweek exchanges during the summer; providing for winter travel arrangements; and changing exchange times and occasions.

[9] The mother is opposed to the changes sought by the father. In her response to the motion to change, she seeks a variation of the father’s child support obligations.

[10] A trial of these issues is now scheduled to be heard during this court’s trial sittings starting April 4, 2023.

[11] The mother’s motion seeking the appointment of the Children’s Lawyer is dated February 22, 2022.

[12] The mother’s request for the involvement of the Children’s Lawyer is because of ongoing conflict between the parties regarding parenting issues and its effect on the child. Her evidence is:

• The father wants to change parenting time exchanges and locations and has acted unilaterally in this regard.
• The parties cannot use the Merrymount supervised access exchange program because the father will not pay his outstanding bill with it. This necessitates the mother going to the father’s home to pick up the child. In the context of this very high-conflict case, that attendance is stressful. This in turn exposes the child to unnecessary ongoing conflict.
• The police have been called to assist with parenting time exchanges.
• The child is being exposed to conflict over parenting time exchanges. According to the mother, the child is experiencing anxiety, stress, fears, and emotional distress from the parents’ ongoing conflict. Two instances where conflict affected the child were detailed by the mother.

[13] The father denies that he has caused conflict or has exposed the child to it.

[14] It is the father’s submission that the involvement of the Children’s Lawyer is not necessary because:

• A prior request to the court for this relief was denied.
• He has kept the child “safe, sheltered from the desire of the [mother] to continue to try to create conflict …”
• The child is well adjusted and doing well as appears from the comments contained in her February 18, 2022 school report card.

Legal Considerations

[15] The trial court will have to decide what, if any, changes to the existing parenting order are to be made. It is in this context that this court must consider whether to request the involvement of the Children’s Lawyer. [^1]

[16] The court that will decide the father’s motion to change the current parenting time arrangement must do so on the basis of the child’s best interests: Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.) s. 17(1) and Gordon v. Goertz, [1996] S.C.J. No. 52, at para 49.

[17] An investigation under the Courts of Justice Act, R.S.O. 1990, c. C.43 s. 112(1)(a) can address all matters concerning parenting time regarding the child. As well, the Children’s Lawyer may report and make recommendations on the results of the investigation: Courts of Justice Act s. 112(2).

[18] It is most often the case that a social worker will conduct the investigation and prepare a report and recommendations. These reports can be helpful to the court and assist in resolving the litigation, short of trial: see Parniak v. Carter, [2002] O.J. No. 2787, at para. 29.

[19] The required threshold for the involvement of the Children's Lawyer is low: Flood v. Flood, 2018 ONCJ 822, at para. 27.

[20] However, it is not in every case that the court will request the involvement of the Children’s Lawyer. If the child’s exposure to an investigation will exacerbate the child’s difficulties, the request will not likely be granted. Another reason that may influence a court not to request the involvement of the Children's Lawyer is if it will cause delay.

Discussion

[21] In this case, I find that the involvement of the Children’s Lawyer, particularly by way of a s. 112 investigation and report, will be of assistance to the court and the parties. This, in turn, will be in the child’s best interests.

[22] I have considered the following in making this finding:

• The parties acknowledge that this is a high conflict case. The cause of this conflict is a matter about which the parties differ.
• There is conflicting evidence about how the ongoing parental conflict is affecting the child. The father sees the child as well adjusted. The mother sees the child adversely affected by the conflict. An independent investigation will be of help to the court in determining this issue.
• The appointment will not delay this case as the trial is scheduled to start 12 months from now.
• The investigator will be able to recommend what, if any, counselling or other services are needed for the child and, if so, which ones.
• While not a determinative factor in this case, the involvement of the Children’s Lawyer will allow this nine-year-old child to have her views and preferences put before the court.
• When the request for the involvement of the Children’s Lawyer was last made and denied in this case, it was for a specific purpose. A Voice of the Child report was asked for to find out what the child’s wishes were regarding some travel. That would have put the child at the center of the parties’ conflict. This is not the case with the current request. The current request is to better understand, if or how this child is being affected by the ongoing conflict between her parents and, if she is, what clinical or other steps can be taken to assist the child. This may inform the trial court’s decision on any changes to the parenting plan sought by the father in his motion to change.
• The court will have comprehensive information about the child’s needs. The involvement of the Children’s Lawyer will therefore assist the court in having all evidence relevant to the issue of the child’s best interests before it.
• While the changes sought by the father in his motion to change may appear minor, they will affect the amount of time the parties will be with and away from the child. As well, the changes sought have the potential for the child being exposed to the parties’ ongoing conflict. Given the longstanding conflict between the parties, the changes sought may turn out not to be minor.

Order

[23] For these reasons, an order shall issue requesting the involvement of the Children’s Lawyer in this case.

[24] The clerk of the court is to prepare the draft order for my review and signature. These reasons are to be appended to the Children’s Lawyer order and will constitute the “judge’s comments.”

[25] The parties shall forthwith complete and deliver to the Children’s Lawyer its required intake form.

[26] There shall be no order for costs of the motion.

“Justice B. Tobin” Justice B. Tobin Date: April 11, 2022

[^1]: This assumes that the court will find that there has been a material change in circumstances: Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.) s. 17(5) and Gordon v. Goertz, [1996] S.C.J. No. 52, at para 49. This is a live issue in this case.