Court File and Parties

Court File No.: FS-20-43623 Date: 2022-02-02 Superior Court of Justice - Ontario

Re: R.L., Applicant And: M.F., Respondent

Before: Conlan J.

Counsel: Ms. M. McCarthy, for the Applicant, R.L. Ms. J. Nicoll, for the Respondent, M.F.

Heard: February 2, 2022

Endorsement on motion

I. Introduction

[1] By Notice of Motion dated January 14, 2022, the Respondent mother, M.F., asks for an order, under subrule 4(7) of the Family Law Rules, authorizing a specific lawyer, Mr. Dan Goldberg, to represent the children in this proceeding. She also requests an order that the expenses for that legal representation be treated as a section 7 item and be borne by the parties on a shared basis in proportion to their respective incomes – 72% for the Applicant father, R.L., and 28% for the mother. Alternatively, an order is sought appointing the Office of the Children’s Lawyer to act for the children.

[2] The motion is opposed by the father. The motion was argued at Court, via Zoom, as a regular motion (50 minutes total, for both sides) on February 2, 2022.

[3] There are two female children, a 15-year old and a 13-year old. The family is currently participating in a therapeutic process with Dr. Butkowsky. The children have indicated to Dr. Butkowsky that they are not prepared to consent to the disclosure of information and, thus, the counselling process is not fully “open”, despite both parents agreeing to that. Recently, the case was placed on a trial list. It is scheduled to be tried over ten days in Milton in October 2022. In late February 2022, the family is scheduled to return to the services of Dr. Radovanovic for a review assessment. Dr. Radovanovic conducted a previous section 30 Children’s Law Reform Act assessment, and the fresh report after the upcoming review process is anticipated to be released in May 2022. It should be noted, as well, that the family previously engaged the services of Lourdes Geraldo, a registered social worker, assessor, mediator, therapist, and parenting coordinator. Ms. Geraldo has reported in writing on her findings.

[4] The justification for the orders being sought is encapsulated at paragraph 37 of the mother’s affidavit sworn on January 14, 2022 – she believes that the appointment of legal representation for the girls will allow them to be properly heard and considered in the process without complaint that she is influencing them in their wishes or trying to alienate them from their father, which allegations she believes are at the heart of the father’s theory of the case.

[5] The father submits that independent legal representation for the children is not in their best interests in that it is unnecessary and would likely endanger the completion of the trial as scheduled to take place in October 2022. Quite responsibly, the father takes no issue with the suitability of Mr. Goldberg, and neither does this Court. A very senior lawyer of fine repute, with decades of experience representing children in custody/access cases, Mr. Goldberg would be an excellent choice, in the Court’s opinion.

[6] The issue, however, is whether the order for legal representation for the children should be made at all.

II. The Law

[7] Both sides filed very helpful facta. I am grateful for that assistance.

[8] The jurisdiction of this Court to make the primary order sought by the mother is undisputed. Where the child 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 otherwise ordered): subrule 4(7) of the Family Law Rules.

[9] Unquestionably, a court shall consider the views and preferences of the child as a part of the best interests analysis that is required to be undertaken in making a parenting or contact order: section 16(3)(e) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), as amended.

[10] The decision of the Court of Appeal for Ontario in Bhajan v. Bhajan, 2010 ONCA 714, where a special panel of five learned justices presided, though not a new decision, is instructive in two ways. First, it reminds us that in a case involving children of these ages, “their views would play a large part in the court’s ultimate decision” (paragraph 74). Second, it makes it clear that there are various avenues in existence for children to be heard in proceedings, quite apart from an order under subrule 4(7) or an order for the appointment of the Office of the Children’s Lawyer, which is why such orders are discretionary (paragraphs 20 and 21). In fact, the Court of Appeal identified one such other avenue at paragraph 78 of its decision, where it held that the Superior Court judge “could have considered the making of an order for independent representation pursuant to rule 4(7) of the Family Law Rules or an order pursuant to s. 30 of the CLRA” (emphasis added).

[11] Very recently, in M. v. F., 2022 ONSC 505, a case brought to my attention by counsel for the mother, Justice Kristjanson, in the context of a motion to change and a completed Voice of the Child Report wherein the clinician (a social worker) stated that the child (13 years old) had an “independent opinion” and wanted to live with his mother and set his own parenting time with his father, found that legal representation for the child was required. The Justice stated that “[s]ince the child’s views and preferences are contained in the Voice of the Child Report, [the child] 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” (paragraph 16).

III. Decision

[12] With respect, though I think that the mother was well-intentioned in bringing the within motion, I have concluded that it should be dismissed. This Court declines to order independent legal representation for the children. I do not think that such an order is in their best interests.

[13] First, there is something incongruous about the mother’s position. If the children do not want their views as expressed to Dr. Butkowsky disclosed to anyone else, why would they want to be a party to the litigation and have a lawyer not only disclose but advocate in support of those views to the parents and to the Court? Respectfully, I do not understand that.

[14] Second, I have very little confidence that this trial, given the level of parental conflict and the number of issues involved and the number of collateral witnesses participating, will be completed in the scheduled ten days, even without independent legal representation for the children. The relief sought in the mother’s motion, if granted, will only serve to lengthen the trial, probably pushing it into 2023. That would be a terrible result for these children. Ms. Nicoll submitted, and I accept, that independent legal representation for the children may not delay the actual start of the trial. That is not my concern, however. The concern is that the trial will very likely not finish in the scheduled time.

[15] Third, I am of the view that the important obligation to ascertain the views and preferences of these children will be fulfilled through the evidence of Ms. Geraldo, the thorough section 30 assessment and upcoming reassessment and corresponding evidence of Dr. Radovanovic, and the evidence of the parents themselves (subject, of course, to a hearsay voir dire), even if those views and preferences cannot be disclosed by Dr. Butkowsky. There is an admission by the mother that the father’s counsel, regardless of whether this was vetted in advance by the mother’s counsel, has specifically asked Dr. Radovanovic to comment on the children’s views and preferences. And, quite fairly, Ms. Nicoll acknowledged in her oral submissions that it is quite likely that Dr. Radovanovic will receive and will comment on the views and preferences of the children. Ms. Nicoll went on to submit that Dr. Radovanovic, however, may express opinions that do not necessarily align themselves with the wishes of the children. That is true, but that is a separate issue from whether the trial judge will be in a position to satisfy the requirement under section 16(3)(e) of the Divorce Act, as amended. I am of the opinion that the trial judge will be able to do so.

[16] Fourth and finally, I take no issue with the caselaw relied upon by the mother, including but not limited to M. v. F., supra and the decision of Justice Mandhane in S.S. v. R.S., 2021 ONSC 2137, where Her Honour stated, at paragraph 27, that “[a] human rights-based approach to the new Divorce Act calls on courts to recognize, respect and reflect each child as an individual distinct from their parents, and to empower children to be actors in their own destiny”.

[17] I would say this, however, for the mother to consider. M. v. F., supra, involved a clinician’s Voice of the Child Report. Such reports are far less thorough than section 30 assessment reports and do not generally contain any opinions expressed by the author. Further, there is no indication in the decision of Justice Kristjanson that the facts in that case included (i) multiple professional interventions with the child, as in our case, and (ii) existing and anticipated evidence before the Court, from more than one source, on the views and preferences of the child, as in our case. These children in our case are being empowered to be actors in their own destiny. That their empowerment has not included independent legal representation is not determinative of whether section 16(3)(e) of the legislation is being sufficiently respected, in my view. That section is being respected.

[18] These two children have been through an awful lot already. They have been poked and prodded by multiple professionals, all with very good cause, and I just do not see how adding yet another layer of the relief being sought by the mother in the within motion is, in all of the circumstances, in their best interests. Thus, despite the able submissions of Ms. Nicoll, I decline to make the orders sought. The mother’s motion is therefore dismissed.

[19] On costs, if not resolved between the parties, written submissions will be accepted. The father shall file his first, within thirty calendar days of today. The mother shall file hers within fifteen calendar days of her counsel’s receipt of the father’s submissions. There is no reply permitted. Each submission shall be strictly limited to two pages in length, excluding attachments.

C.J. Conlan

Electronic signature of Conlan J.

Date: February 2, 2022