COURT FILE NO.: FS-10-16611-2

DATE: 20220124

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: M., Applicant/Moving Party

AND:

F., Respondent/Responding Party

BEFORE: Kristjanson, J.

COUNSEL: M., Unrepresented

Hershel Fogelman and James Porter, Counsel for the Respondent

HEARD: At Toronto by videoconference January 20, 2022

ENDORSEMENT

[1] Should the court appoint a lawyer to represent 13-year-old, C., who is at the heart of this parenting dispute? And if so, should the court request that the Office of the Children’s Lawyer (OCL) provide a legal representative, or approve the retainer of private counsel? The father’s motion to change the 2013 final parenting order, seeking increased parenting time and decision-making responsibility, is to be heard in May.

[2] An OCL clinician (social worker) completed a Voice of the Child report in August 2021. The clinician stated that C. had an “independent opinion” and was “interested in living with his mother and would like to set his own parenting and. holiday schedule with his father.” C. also expressed “hopes” that the judge would impose certain conditions on the father.

[3] On this motion, the mother, M., seeks to have the OCL appointed as C.’s legal representative. The father seeks to cross-examine the clinician on the Voice of the Child report, in part because he is of the view that C.’s views and preferences were not given freely but were the product of undue influence. He intends to make submissions about the “veracity” of the views and preferences of C. as set out in the Voice of the Child report, as he has serious doubts about C.’s “independence” and the influence of the mother on C.’s views. The father, F., opposes the appointment of a legal representative, and the appointment of the OCL. In the alternative, he seeks the appointment of counsel on a private retainer although he did not file a cross-motion.

[4] C. has the right to have his views and preferences on the parenting order heard on the motion to change. The court has a duty to consider C.’s views and preferences on the motion to change. The father’s cross-examination is directed at undermining the reliability of C.’s views and preferences as expressed in the Voice of the Child report. So, I am requesting the OCL to appoint a legal representative for C., both for the cross-examination on the Voice of the Child report, and for the motion to change.

Background Facts

[5] C. has been in the middle of this high conflict parenting dispute his whole life. The parents were never married. They separated before C. was born in 2009. The Application started in 2010, resulting in a 34-day trial largely on parenting issues when C. was almost 5: M. v. F., 2013 ONSC 6089. The final order contemplated a step-up parenting schedule for the father which has never been achieved. Both parents claim that the parenting order is not been complied with by the other parent. The father been to court or arbitration six times since the final order was made in 2013, attempting to enforce his parenting rights.

[6] The father has brought a motion to change seeking increased decision-making responsibility and parenting time, scheduled to be heard in late May 2022. At an urgent case conference held on July 9, 2021, the parties agreed to appoint the OCL to produce a Voice of the Child report. The report was delivered on August 19, 2021.

[7] On November 24, 2021, the father’s counsel wrote to the OCL giving notice of his intention to cross-examine the clinician who had prepared the report. In his affidavit the father questions the “veracity” of the views and preferences of C. as contained in the report, claiming undue influence of the mother:

Admittedly, I do not agree with the contents of the report or its conclusions, but the veracity of the report and the weight to be given to it can be dealt with at trial after cross-examination of the clinician. My concerns with the Report are: (i) C. parrots the Applicant Mother’s position; (ii) his answers appear to be coached; and (iii) the views and preferences expressed by C. in the report were not freely given.

[8] This motion date was set in November. On January 12, the father’s counsel contacted a private lawyer formerly with the OCL to determine his availability and obtain his CV, without discussing the facts of the case. On January 13 the father’s counsel wrote to the mother suggesting the private retainer and attaching the CV. The mother, who is self-represented, filed a responding affidavit four days later objecting to the private retainer. She did not propose an alternative name of private counsel.

[9] The mother asserts that “since one parent is openly challenging the child’s expressed views and preferences through cross-examination of the author of the Voice of the Child report,” the child should have a legal representative.

[10] The father states that legal representation is not required, in part because, as he puts it, “Forcing C. into the middle of this high conflict parenting dispute is not in his best interest…Asking him to advocate for himself and take positions against his mother or me is not, in this particular case, worth the distress it will cause C.” In the alternative, the father proposes that a private lawyer provide legal representation, and the parties split the costs.

Issues and Analysis

[11] The issues to be decided on the motion to change must be based on the best interests of the child under section 24 of the Children’s Law Reform Act, R.S.O. 1990, c. C12. On the motion to change, the court must consider all factors relating to the circumstances of the child including “the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained”: CLRA, s. 24(3)(e). Section 64(1) of the CLRA provides: “In considering an application under this Part, a court where possible shall take into consideration the views and preferences of the child to the extent that the child is able to express them.”

[12] The obligation to consider the views and preferences of the child before parenting orders are made recognizes the agency of children and is based on the rights of the child. The United Nations Convention on the Rights of the Child, Can. T.S. 1992, No. 3, Article 12 (“UNCRC”) specifically recognizes that children who are capable of forming their own views have the right to express those views in all matters affecting them, and that for this purpose, the child shall be provided the opportunity to be heard in any judicial proceedings affecting them, either directly, or through a representative or an appropriate body. As Benotto, J.A. states in M.A.A. v. D.E.M.E. at para. 46:

The right of children to participate in matters involving them is fundamental to family law proceedings. Canada has adopted the Convention on the Rights of the Child, effectively guaranteeing that their views will be heard. A determination of best interests -- which is engaged in all child-related matters -- must incorporate the child's view.

[13] The court, on consent, ordered a Voice of the Child report to hear the child’s views and preferences. But the father wishes to cross-examine the author of the report because he asserts those views are not independent, nor freely given, but the product of the mother’s undue influence. The cross-examination is specifically directed at the only evidence the court will have on the motion to change about the child’s views and preferences. As importantly, it undermines the child’s right to be heard. As stated by Justice Martinson in G. (B.J.) v. G. (D.L.), 2010 YKSC 44, para. 13:

[13] There is no ambiguity in the language used. The [UNCRC] is very clear; all children have these legal rights to be heard, without discrimination. It does not make an exception for cases involving high conflict, including those dealing with domestic violence, parental alienation, or both. It does not give decision makers the discretion to disregard the legal rights contained in it because of the particular circumstances of the case or the view the decision maker may hold about children's participation.

[14] In a high conflict case like this one, the key issue will be the weight to be given to the child's views considering the child's age and maturity and the other factors which inform the judicial assessment of a child's best interests. But the child’s views and preferences should be before the court.

[15] The father states that he wants the child to be kept out of the litigation, as having a legal representative would be like “forcing” C. into the middle of the legal conflict, causing distress. I do not agree that keeping kids and their voices out of court is the solution. Rather, as stated by the Honourable Donna J. Martinson & Caterina E. Tempesta in “Young People as Humans in Family Court Processes: A Child Rights Approach to Legal Representation,” 31 Can. J. Fam. L. 151 (2018). at pp. 167-168:

In most cases, it is the fact of the conflict that is harmful, not the expression of the child's views. Even in the few true "parental alienation cases", efforts should be made to enable children to share their views, although the court may have to determine the weight to be assigned to those views. In addition, in many cases where alienation is alleged, children may have legitimate affinities for one parent over the other, or may have had experiences with the "alienated" parent that justify the estrangement. In such cases, it would not be desirable to exclude the child’s perspective from the decision-making process.

Even in cases where parents are careful to avoid influencing their children's views, it is inevitable that children will be influenced by the words and actions of those around them. The possibility of parental influence on its own should not be a basis for excluding children's participation nor for discounting their expressed views. An approach that considers the extent to which the child's views are rooted in reality, or might reasonably be perceived as such by the child, is preferable, as it considers the situation from the child's perspective. Reviewing the substance of a mature child's reasons where the reasons are not based on objectively incorrect information and where there is no evidence that upholding the child's views will be harmful is unnecessarily paternalistic and inconsistent with the child's right to have appropriate weight attached to her views.

[16] Since the child’s views and preferences are contained in the Voice of the Child report, C. has an interest in the cross-examination of the author of the report, and the submissions that will later be made about his views and preferences on the motion to change. In the circumstances here, I find that it is in C.’s best interests to have a legal representative to ensure that the court has evidence and argument relevant to C.’s views and preferences on the motion to change.

[17] The mother has asked that the OCL provide a legal representative. The Court of Appeal for Ontario has recognized the OCL as a model in promoting access to justice for children by ensuring that their views are heard in court processes in a manner that does not expose them to further trauma or cause more damage to the family: Ontario (Children's Lawyer) v. Ontario (Information and Privacy Commissioner), 2018 ONCA 559 at paras. 65-66. I thus request the OCL to provide a legal representative for C. pursuant to s.89(3.1) of the Courts of Justice Act, R.S.O. 1990, c. C.43.

[18] It is critical, however, that the long motion to change scheduled on May 24 proceed. It will not be adjourned. Therefore, in the order requesting OCL legal representation, I provide an abbreviated period for the parents to complete intake forms and a deadline for the OCL to communicate its decision. Although neither party raised the issue, I did raise the issue of whether the OCL has a conflict given that the clinician was appointed by the OCL. I ask the OCL to consider whether there is a conflict, and also whether, through the appropriate use of conflict walls, counsel experienced in representing children could be appointed by the OCL.

[19] The respondent did not bring a cross-motion to appoint private counsel. The suggestion was first raised with the mother on January 13, when the mother’s materials were due on January 17th. The self-represented mother needs some time to determine whether she agrees with the proposed lawyer or would prefer to put forward another name, and to put in information on ability to pay. I canvassed the timing for the cross-examination of the clinician; all agreed that cross-examination on the short report could take place by mid-April for the May 24 motion to change. If the OCL declines, then either parent may bring a short motion to appoint private independent counsel on 10 days notice to the other, and without need for another case conference.

[20] The parties would need to address the terms and scope of the proposed private retainer, the allocation of costs, and names and CV’s of proposed private counsel.

Costs

[21] The mother has been successful on this motion and is entitled to her costs. She received unbundled legal services and claims legal fees of $4,000 on a full recovery basis. There is no basis for full recovery here. The father’s costs were $5,261 on a partial recovery basis, which included attendance at the motion.

[22] Modern costs rules aim to foster four fundamental purposes (1) to partially indemnify successful litigants; (2) to encourage settlement, (3) to discourage and sanction inappropriate behaviour by litigants and; (4) to ensure that cases are dealt with justly under subrule 2 (2) of the Family Law Rules: Mattina v. Mattina, 2018 ONCA 867.

[23] I find that an award of costs on a partial recovery basis of $2,640 plus HST of $343.20, payable forthwith, is reasonable and proportionate in the circumstances and meets the purposes of modern costs rules.

ORDER

[24] This Court orders that:

(1) The Office of the Children’s Lawyer is requested to provide a legal representative for C., pursuant to s.89 (3.1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, both for the cross-examination of the clinician on the Voice of the Child report, and on the motion to change.

(2) The parents are to complete and submit the required intake forms on an expedited basis by January 31, 2022.

(3) The Office of the Children’s Lawyer is to communicate its decision on legal representation to the parents by February 9, 2022.

(4) If the OCL declines, then either party may bring a short motion for the appointment of private counsel on 10 days’ notice to the other. No further case conference is required.

(5) The cross-examination of the clinician on the August 19, 2021 Voice of the Child report is not to be conducted until the issue of the legal representative of the child is decided at the initial level.

(6) The motion to change date is not to be adjourned.

(7) The father is to pay the mother costs in the amount of $2,983.20 inclusive, forthwith.

Justice Kristjanson

Date: January 24, 2022