Court File and Parties
Court File No.: FC-15-927-1 Date: 2023/10/06 Superior Court of Justice - Ontario
Re: Luc Joseph Leo Cadieux, Applicant And: Lori Ann Thompson, Respondent
Before: Justice Narissa Somji
Counsel: Frederic Huard, for the Applicant Francois Kabemba, for the Respondent
Heard: May 24, 2023
Endorsement
1This endorsement addresses the scope of the Office of the Children’s Lawyer’s (“OCL”) involvement in this matter.
2The parties have two children: A.C. age 14, and M.C. age 7. The parties entered into Minutes of Settlement on October 15, 2019, which was turned into a Final Order issued by Justice Summers on December 16, 2019 (“Parenting Order”). The Parenting Order stipulates that both children will reside with the mother with the father having parenting time every second weekend.
3Issues developed in 2021 where, according to the father, A.C. did not want to reside with her mother. On August 29, 2021, the police were called regarding an altercation between A.C. and her mother. A.C. was removed from her mother’s home by the police and placed in her father’s care. Since that date, A.C. continues to communicate virtually with her mother on a regular basis and visit with her outside the home, but refuses to reside with the mother or stay overnight at her house.
4A.C. presently resides full-time with her father. On July 21, 2022, the mother brought a contempt motion arguing that the father is in breach of terms of the Parenting Order, including the requirement that A.C. live with her mother. The contempt motion was scheduled to be heard on October 25, 2022, but I adjourned the matter pending completion of an investigation by the Children’s Aid Society (“CAS”) and the police regarding an allegation of sexual abuse involving one of the mother’s former roommates: Endorsement of Justice N. Somji dated October 28, 2022.
5On that same date, I made an order for the involvement of the OCL to obtain A.C.’s views and preferences: Endorsement N. Somji October 28, 2022, at para 14. OCL agreed and became involved in January 2023. On May 23, 2023, Beverley Johnston, counsel for the OCL, informed the court that upon becoming involved, OCL posits that this court would benefit from a s. 112 clinical assessment rather than simply a report of A.C.’s views and preferences. In addition, having spoken to both parents, OCL identified parenting issues with respect to the parties’ 7-year old son M.C. and recommended a s. 112 clinical assessment be conducted for both children. However, the present OCL Order governs only A.C. Consequently, before OCL goes any further, they seek clarification from the court on whether the OCL Order will be expanded to include both children. OCL estimates it will take 90 days to obtain an expedited s. 112 report for both children.
6At the May 23, 2023, hearing, the mother opposed the OCL’s involvement in regard to the younger child M.C. because he is not the subject of any litigation before the court. The mother argues that the Final Order governs the parenting arrangement for M.C., and there is no basis to re-open that arrangement. M.C. lives primarily with the mother and sees the father on alternative weekends. The only litigation before the court is the contempt motion by the mother which is restricted to enforcement of the parenting arrangement for A.C. The mother’s counsel argued that until such time as the father filed a Motion to Vary the Parenting Order with respect to terms involving both children, this court did not have jurisdiction to involve OCL in relation to M.C. In addition, the mother wanted an opportunity to file further pleadings on why the OCL should not be involved for M.C.: Endorsement of Justice N. Somji dated May 24, 2023.
7I would note that this is not the first time that the mother has resisted the involvement of the OCL. On August 17, 2021, Corthorn J. ordered the appointment of the OCL but they declined because a CAS investigation was open and the mother had failed to complete her intake form.
8The father’s counsel indicated at the May 2023 hearing that the father had prepared a Motion to Vary the Parenting Order for terms related to both children, but had not filed it as he was awaiting the OCL’s report for A.C. The father was directed to file his Motion to Vary by end of day Friday, May 26, 2023, and the mother was directed to file her response in 30 days. My decision on whether the OCL Order should be expanded to include M.C. was under reserve until the parties’ filings were complete. However, the filings were completed only in August 2023, and I received the materials in/around September 18, 2023.
9Upon review of the materials filed, there will be an order expanding the OCL’s involvement to include a s. 112 report for both A.C. and M.C.
10Section 112 of the Courts of Justice Act, R.S.O. 1990, c. C.43 states:
Report of Children’s Lawyer
Investigation
112 (1) In a proceeding under the Divorce Act (Canada) or the Children’s Law Reform Act in which a question concerning decision-making responsibility, parenting time or contact with respect to a child is before the court, the Children’s Lawyer may,
(a) cause an investigation to be made on all matters concerning decision-making responsibility, parenting time or contact with respect to the child;
(b) cause an investigation to be made on matters specified by the court related to decision-making responsibility, parenting time or contact with respect to the child; or
(c) meet with the child to determine the child’s views and preferences with respect to matters that may include decision-making responsibility, parenting time or contact. 2021, c. 4 , Sched. 3, s. 14.
Report
(2) The Children’s Lawyer may report and make recommendations to the court on the results of an investigation or meeting conducted under subsection (1). 2021, c. 4 , Sched. 3, s. 14.
Authority to act
(3) The Children’s Lawyer may act under subsection (1) or (2) on his or her own initiative, at the request of a court or at the request of any person. 2021, c. 4 , Sched. 3, s. 14.
11Contrary to the information provided by the mother’s counsel, there was a Motion to Vary before the court which was initiated by the mother on July 2, 2020. The father’s counsel was not aware of this (nor does it appear was mother’s counsel) until he attempted to file a new Motion to Vary upon the court’s direction and was advised by the Family Counter that a Motion to Vary was open and pending. Consequently, the father filed an Amended Response to the Motion to Vary and materials to update his original Response to the Motion to Vary: Endorsement of Justice N. Somji dated May 29, 2023; Correspondence of Counsel Frédéric Huard to the Court dated May 26, 2023.
12The mother argues that she brought her original Motion to Vary in July 2020 because she was seeking to leave Ottawa and relocate to Morrisburg, which is no longer her claim. Notwithstanding the change in her position, the father’s original Response to the Motion to Vary addressed parenting issues involving both children. The father’s Response to the Motion to Vary sought to amend the Parenting Order with respect to decision-making and parenting time for both children. In this regard, there were questions concerning the parenting of both M.C. and A.C. before the court that would trigger the application for and receipt of an investigatory report for both children pursuant to s. 112(1) (a) of the Courts of Justice Act.
13Finally, s. 112(3) of the Courts of Justice Act states that the request for a s. 112 report can also be made by the court. As noted in my earlier endorsement of May 24, 2023, the OCL has recommended that this family and court could benefit from a clinical assessment of the circumstances of both children. Upon review of the parties’ affidavits, including the most recent affidavits filed in the summer of 2023, it is apparent that this is a longstanding and high conflict matter between the parents. I find a s. 112 report would assist the court in understanding the circumstances of M.C. and A.C. so as to determine a parenting arrangement that is in the best interests of the children going forward. This is the central issue for the determination on the Motion to Vary. The OCL report may also shed light on the circumstances surrounding the father’s alleged breaches of the Parenting Order which forms the basis of the mother’s contempt motion.
14Pursuant to s. 112 of the Courts of Justice Act, there will be an order requesting an investigation report from the OCL for both M.C. and A.C. There will be an order requiring the parties to complete the intake forms within 7 business days of the issuance of this decision. An Amended OCL Order will be issued.
Justice N. Somji Date: October 6, 2023