Court File and Parties

Date: 2024/08/29 Superior Court of Justice - Ontario

Re: Mathieu Mineault, Applicant And: Heather Porter, Respondent

Before: Somji J.

Counsel: Applicant, Self-Represented Courtney Shields, for the Respondent

Heard: August 27, 2024 Delivered: Orally August 28, 2024

Decision re appointment of the Office of the Children’s Lawyer

[1] The Respondent party Ms. Porter (“mother”) seeks an order for the Office of the Children’s Lawyer (“OCL”) to prepare a s. 112 report under the Courts of Justice Act, R.S.O. 1990, c.C.43, as am. regarding their nine year old child (G.M.M.) and alternatively, should OCL decline, an order for the parents to obtain a private parenting plan assessment for which the mother has offered to pay.

[2] At the outset, I wish to indicate that upon reviewing the materials and hearing the submissions of both parties, it is clear to me that the parents love their son dearly and are committed to his development and well-being. There has been a high level of conflict in this case dating back to child’s earlier years including in Alberta. The parents continue to have challenges in their communications and appear to have different parenting styles and views on what is best for G.M.M. resulting in parental conflict. Despite these differences, I find the parents are both trying to do what is right for their child.

[3] Ms. Porter has brought a Motion to Change the Parenting Order. My decision today is not to decide whether the current parenting arrangement imposed pursuant to an Order of the Court of Queen’s Bench of Alberta dated March 17, 2022, which I will refer to as the Parenting Order, should be changed. Those issues – whether there has been a material change in circumstances to change the Parenting Order and if so, what parenting order is in G.M.M.’s best interest - will be decided by another judge at a later time.

[4] A s. 112 report is a fact-finding report: E.P. v. D.P., 2024 ONSC 1208 at para 126. The issue before the court is whether a s. 112 report should be ordered so that the court can have the necessary information to determine what parenting arrangement is in the child’s best interest for the mother’s Motion to Change hearing.

[5] Section 112 of the Courts of Justice Act states that:

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.

(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.

[6] As already addressed at the hearing yesterday, despite any Order I make, OCL has the discretion to determine whether they will participate and prepare a report and recommendations in your case: Novoa v Molero, 2007 ONCA 800 at para 9.

[7] The threshold for the involvement of the OCL is low: Campbell v Campbell, 2022 ONSC 2212 at para 19.

[8] At the same time, resources are limited, and a s. 112 report is not ordered in every case. Furthermore, a s. 112 report is not intended to be relied on as a fishing expedition by one parent to gather information to buttress their court applications.

[9] A s. 112 report is not limited to circumstances where there is a clinical issue effecting the child: Parniak v Carter at para 26. While not an exhaustive list, below are some of the factors the court may consider in determining whether a s. 112 report should be ordered:

1. The need to obtain the child’s views and preferences on the existing parenting regime and their views on any proposed changes to the parenting regime (Campbell at para 22; H.C. v J.S., 2023 ONSC 2551 at para 56);
2. Whether there is conflicting evidence about how ongoing parental conflict is affecting the child particularly when one parent suggests the child is well adjusted and the other sees the child adversely affected by conflict (Campbell at para 22);
3. Whether the child is experiencing behavioural issues at home or school that need to be verified (H.C. v J.S. at para 59);
4. Whether there are changes in the child’s circumstances including medical issues that might be impacting the child’s mental, emotional, and physical well-being (H.C. v J.S. at para 57);
5. If an OCL investigator will be able to recommend what, if any, counselling or other services are needed for the child (Campbell at para 22);
6. If the report can provide comprehensive information about the child’s present and future needs (Campbell at para 22); and
7. The time frame for obtaining a report and the impact of any delays (Morwald-Benevides v Benevides, 2019 ONCA 1023 at para 31; Campbell at para 22).

[10] In this case, the Applicant Mr. Mineault (“father”) argues that a s. 112 report is unnecessary, and the mother is requesting the report because she remains unhappy about the Parenting Order placing G.M.M. in his primary care. As his primary caregiver, the father argues he has been able to meet the child’s medical and school needs. He attended G.M.M.’s medical appointments and enrolled him in programming to assist with school. The father argues that G.M.M. has a happy home life. In Mr. Mineault’s view, the child has gone through a lot and, there is no reason for him to be subject to further interventions including by the OCL.

[11] The mother argues that there have been a number of changes in G.M.M.’s personal circumstances that warrant a s. 112 report.

[12] Upon review of the materials filed, I find there are grounds to order a s. 112 report in this case for the following reasons:

1. First, G.M.M. has been struggling in school for some time. The mother explains that it took a considerable amount of effort as a co-parent to obtain the father’s cooperation in obtaining an assessment for ADHD and learning disabilities. While the father has now accepted the clinical diagnosis and is following the doctor’s recommendations for medication, he has not commenced therapy for the child. The mother suggests that there are still ongoing concerns about the child’s performance at school.
2. Two, it has now been confirmed that G.M.M. has retinoschisis in both eyes. The mother has concerns that not enough is being done to manage the risks associated with this condition, in particular with respect to the child’s involvement in sports and activities.
3. Three, G.M.M. continues to sleep in the parents’ beds at both homes. It is unclear why at age nine he is having challenges sleeping alone. The mother ensures that her new partner does not sleep in the same bed when G.M.M. is in her home and has asked the father to do the same when his girlfriend is staying over.
4. Four, according to the mother, G.M.M. has expressed to her some fears and anxieties about residing at his father’s home, particularly as it relates to his father’s anger. I accept these allegations are not verified. While the father argues that the mother makes untruthful claims about him, it is important for the court to obtain some information directly from the child about any concerns he may have with respect to either parent’s home, his present views on the current parenting regime now that all parties are in Ontario, and how the ongoing and high level of conflict between the parents is impacting him. G.M.M. is now nine years of age and in a position to better express his views and preferences which are a factor for consideration in determining a parenting order in the child’s best interests.
5. Finally, there is no evidence that a s. 112 order will result in unnecessary delays.

[13] For all these reasons, I find the involvement of the OCL is warranted in this case, or alternatively, that the court would benefit from a private family assessment.

Costs:

[14] The mother is the successful party on this motion and is presumptively entitled to costs.

[15] Entitlement and quantum of costs is in the discretion of the judge: Section 131(1) of the Courts of Justice Act.

[16] Rule 24 of the Family Law Rules, O. Reg. 114/99 as am, sets out the legal framework for cost orders in family cases: Mattina v Mattina, 2018 ONCA 867 at para 9.

[17] The mother’s counsel filed a bill of costs indicating a reasonable rate of $225/hour commensurate with her experience as a 2019 call. Counsel spent 11.5 hours at a cost of $2,923 in preparing for the motion. The hours billed were commensurate with the work that was necessary and performed. The motion was not complex but did require preparation of two affidavits in support of the motion.

[18] I find there was no issue with respect to the father’s conduct to warrant an elevated cost award. The father was entitled to oppose the motion for the reasons he did.

[19] Having considered that the mother was the successful party, conduct, complexity, the billings and rates, I find that a partial indemnity costs fixed at $1,700 is fair, reasonable, and proportionate in this case.

Order

[20] There will be an Order that:

1. This matter be referred to the Office of the Children’s Lawyer for a s. 112 Courts of Justice Act investigation and report.
2. Both parents will comply with the completion of the intake forms and directions of the OCL in preparing the report.
3. Should the OCL refuse to be involved, the parties will within 30 days of receiving such notice make arrangements to obtain a private parenting plan assessment from a mutually agreed upon assessor. To facilitate this process, the mother shall within 10 days of OCL notice propose three names of potential assessors and their respective timelines for completing a report to the father for consideration.
4. The father will fixed costs of $1700 to the mother within 30 days.

[21] Counsel for the mother will prepare a draft Order consistent with this decision for my review and issuance.

[22] Where there are any discrepancies between the oral and written judgment, the written judgment will prevail.

Somji J. Date: August 29, 2024