Court File and Parties
SUPERIOR COURT OF JUSTICE – ONTARIO
491 Steeles Avenue East, Milton ON L9T 1Y7
RE: Jennifer Boswell (Ongko), applicant
AND:
Ibnu Ongko, respondent
BEFORE: Justice Kurz
COUNSEL: Fadwa Yehia, for the applicant
Shawn Philbert, for the respondent
HEARD: March 27, 2026
ENDORSEMENT
Introduction
1In this endorsement, I answer a question which I raised in this r. 1(8) motion on my own initiative. I asked whether this court has the jurisdiction to appoint a professional to prepare a Voice of the Child (“VoC”) report in a r. 1(8) motion, on its own initiative. As set out below, I answer in the affirmative.
This Motion
2The respondent father (the “Father”) moves for a variety of relief against the applicant mother (the “Mother”) under r. 1(8) of the Family Law Rules (“FLR”) in relation to two of the parties’ children, T (age 17), and J (age 15).This motion is the latest step in what has been long-standing and high conflict litigation between the Father and Mother.
3Among the heads of relief the Father seeks are the following:
a. An order finding the Mother in breach or non-compliance with the terms set out at paras. 30-32 of the endorsement of Mills J. of December 30, 2025. The actual order arising from that endorsement (the “Mills J. Order”) has apparently not been issued and entered;
b. An order finding the Mother is in breach or non-compliance with the terms set out at paras. 2, 4, 5, 6, 7, and 9 of the consent order of Coats J. of October 9, 2024 (the “Coats J. Order”);
c. An order finding the Mother in breach or non-compliance with the terms set out at paras. 9-10 of the order of Tzimas J. of August 10, 2020 (the “Tzimas J. Order”);
d. An order that the Mother pay the Father $20,000 under the Mills J. Order, which incorporated the award of parenting coordinator, Mary-Jo Franchi-Rothecker (the “PC”) of March 24, 2025 (the “Award”), with such payment to be set-off against child support;
e. A further order that the Mother pay the Father a further $68,000 under the Mills J. Order, which incorporated the Award; again, with such payment to be set off against child support;
f. An order imposing the following sanctions against the Mother for breach of the three orders cited above:
i. The Mother is not entitled to a further order of the court until the PC provides written confirmation that the Mother “is in compliance with her Award(s), whether retrospective or ongoing”;
ii. The Mother is not entitled to a further order of the court until counsellor/therapist Shazeeda Haroon (the “Therapist”) provides written confirmation that the Mother “is in compliance with her direction(s), whether retrospective or ongoing”;
iii. The Mother “must provide the [Father] with $3,000 in cost [sic], payable within 30 days.”;
g. An order that the Mother pay the Father the cost of the arbitration process of $2,417.07 per the Award;
4The Respondent brought this motion after Mills J. refused, on December 30, 2025 to terminate the retainers of the PC and the Therapist. Rather, Mills J. ordered that the Award be incorporated into an order of the court.
5Mills J. dismissed the Mother’s motion because the Mother had failed to exhaust the grievance procedure available under the PC’s Parenting Coordination Agreement. Having raised the issue of a reasonable apprehension of bias on the part of the PC, the Mother refused to remit funds to the PC to allow her to arbitrate her grievance and failed to participate in the hearing into that grievance. Mills J. described the Mother’s refusal to remit funds to the PC as “a unilateral act undoubtedly intended to frustrate the dispute resolution process mandated in the PC agreement.”
6As Mills J. added, “[e]ven though Ms. Boswell had lost confidence in the PC, the proper recourse was to exhaust the contractual dispute resolution process prior to resorting to the Court”. Failing to avail herself of the opportunity to challenge the PC for a reasonable apprehension of bias, Mills J. found that the Mother was precluded from raising the issue in this court.
7The PC made her Award following the Mother’s refusal to allow the PC to arbitrate her bias and overbilling allegations. As a result of the Mother’s effective abandonment of the parenting coordination process, the PC arbitrated the parenting issues raised by the Father without the participation of the Mother.
8On March 24, 2025 the PC released her Award, which did not contain reasons. In light of the Mother’s absence from the arbitration of the Father’s requests, he was successful. The Award greatly favoured his position. It included the following terms:
a. J’s parenting time with the Father was to resume on March 26, 2025, after school, and continue on alternating weekends. The Award also set out Easter weekend parenting time with J for the Father. The PC further determined that “J will resume communications with his father immediately…”
b. The Father was entitled to ten make-up parenting days;
c. T was to resume his meetings with the reunification Team (led by social worker, Shazeeda Haroon) on the first Thursday or Friday that they were available to meet him.
d. The Mother was to resume her meetings with the Reunification team.
e. “[J] will meet with the Reunification Team on the first available Friday to discuss his change of mind after agreeing to meet with the Reunification Team once each month”.
f. On or before March 31, 2025, each parent was to provide the PC with confirmation that they have signed the family Therapy Agreement with Ms. Haroon, and provide a copy to the PC, if required.
g. The Mother is to pay $500 for each night of parenting time with the Father that T or J does not attend, and $500 for each time T misses a reunification appointment. If the Mother does not pay the Father directly, these financial consequences will be offset against child support and s. 7 expenses payable by the Father to her.
h. The Mother “will return to the PC process no later than April 24, 2025. [She] will acknowledge her responsibility to pay the PC fees pursuant to the Justice Coats order of October 9, 2024.”
i. “Specifically, [the Mother] will acknowledge her responsibility to compensate the PC for steps take [sic] to respond to [the Mother]’s lawyers and to meet with them to complete the Grievance process…”
j. The Mother will be responsible to reimburse the Father for the costs of the Arbitration process and for the PC fees and retainer he paid on her behalf. If she fails to do so, “these financial consequences shall be offset against child support and s. 7 expenses.”
9While incorporating the terms of the Award into a formal court order, Mills J. declined to order that the Mother comply with the terms of the Award, reasoning that the Mother “is aware of her obligation to comply with Court Orders.” Mills J. added that if the Mother fails to comply with her order, it was open to the Father to move for enforcement under the FLR.
The Course of this Motion
10The Father’s r. 1(8) motion is the motion for enforcement to which Mills J. alluded. It first came before me on January 22, 2026 as a contested adjournment, requested by the Mother. The Father had served her with his motion materials almost a month after setting the motion date. But in doing so, he only allowed her six days before the motion return date to respond. Since r. 14(11.3) required any response to be served and filed four days before the motion date, the Father had actually left her with two days to respond to his motion, after he took almost a month to prepare his materials.
11For that reason, I adjourned this motion to February 26, 2026. However, on that date, the motion had to be adjourned again because the Mother’s counsel at the time had suffered a fall. Chang J. put the motion over to March 4, 2026 for 50 minutes. On that date, the parties appeared before me.
12On March 4, 2026, having reviewed the motion materials filed, I determined that this was in fact a long motion. I did so both because of the number of heads of relief sought by the Father but also because the Father’s counsel intends to argue that numerous portions of the Mother’s affidavit must be struck. He seeks to strike those portions of her supporting affidavit “on the basis that they are hearsay statements, irrelevant, inflammatory, conclusory, speculative, argumentative, or opinion evidence” (per his confirmation of February 27, 2026). That request in itself, without the other heads of relief sought, would likely take at least one hour to resolve. The time limit for an ordinary motion is 59 minutes.
13On that same date, I dismissed a cross-motion by the Mother to, among other things:
a. dismiss the Father’s motion (an unnecessary head of relief when a motion is contested);
b. determine that the issues should be dealt with through a motion to change rather than a r. 1(8) motion; and
c. appoint the Office of the Children’s Lawyer (“OCL”) to prepare a Voice of the Child Report for T and J.
14I note that T will be eighteen years old later this month, while J is now about three months short of his sixteenth birthday.
15Because she had not sought or been granted leave to bring a cross-motion, while the Father had leave to bring his motion, I dismissed the Mother’s cross-motion.
16Nonetheless, even in the absence of the Mother’s motion, I queried whether this court possesses the jurisdiction, on its own initiative, to order the involvement of the OCL or other professional to interview T and J and then prepare a VoC report, as part of this motion.
17As I previously explained, I raised the issue because the enforcement being requested by the Father would require the Mother to ensure that T and J see the Father and participate in family reunification therapy. That order is being sought notwithstanding T and J’s ages and without recourse to their own views and preferences regarding that process. I pointed out that, as set out in greater detail below, case law has increasingly spoken of the right of older children to have a say in any legal proceeding which involves their parenting and well-being.
18I have now received and considered the submissions of the parties regarding the issue I raised.
Positions Expressed by the Parties
19Despite T and J’s ages, the Father’s counsel strongly objected to even my consideration of the question of whether I have the jurisdiction to obtain their views and preferences as part of his client’s r. 1(8) motion. He argued that s. 112 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (the “CJA”), does not allow for the OCL, the public agency which normally prepares VoC reports as well as clinical investigation reports, to prepare them in proceedings such as this.
20The Father’s counsel appears to be correct in that s. 112 only applies “[i]n a proceeding under the Divorce Act (Canada) [the “DA”] or the Children’s Law Reform Act [the “CLRA”] in which a question concerning decision-making responsibility, parenting time or contact in respect of a child is before the court”. This is not such a proceeding. It is brought under r. 1(8) of the FLR and is intended to enforce the Mills J. order.
21For that reason, when I consider the jurisdiction of this court to appoint, on its own initiative, a professional to prepare a VoC report in a r. 1(8) motion, I am considering the issue within the context of a private retainer rather than a request to the OCL.
22The Father further and vociferously argued that this court has no jurisdiction to make the type of order which I considered, as this motion is brought under the authority of the Arbitration Act, 1991, S.O. 1991, c. 17 (the “Arbitration Act”). That Act does not make any reference to the appointment of a professional to prepare a VoC report.
23On the other hand, and perhaps unsurprisingly, the Mother strongly supported the notion that this court has the jurisdiction, whether inherent or otherwise, to order a VoC report on its own initiative. She referred to the court’s inherent jurisdiction to control its process and its parens patriae jurisdiction, both of which I will discuss in greater detail below.
24In my endorsement of March 4, 2026, I wrote:
However, I have raised the issue myself of the jurisdiction of the court to order the involvement of the OCL or more to the point, the appointment of a person other than the OCL to conduct interviews with the relevant children, and prepare a Voice of the Child report. That is because the enforcement being requested is with regard to requirements in previous orders that the children see the Applicant Father and participate in family reunification therapy. Case law has increasingly spoken of the right of older children to have a say in any legal proceeding which involves their rights.
25To be clear, I made no finding as to my jurisdiction. Rather, because there was no agreement as to whether the court has the jurisdiction to order a private VoC report on its own initiative, I scheduled a further hearing to allow the parties to provide written and oral submissions on the issue.
26In addition, because the Mother’s counsel disputed the representation by the Father’s that the OCL had found T’s views and preferences to lack independence, I directed counsel to place the October 3, 2024 affidavit of OCL social worker, Roy Reid, on Case Centre, for my review. That affidavit was sworn just weeks before the Coats J. order, which led to the retainer of the PC and Ms. Haroon. I will have more to say about that affidavit and the position actually taken by the OCL regarding the independence of T’s views and preferences, below.
Arguments of the Parties, in Brief
27In his written and oral arguments, the Father strongly argued that this court has no jurisdiction to order a VoC on its own initiative as his r. 1(8) motion is brought under the authority of the Arbitration Act. Further, he asserts that my raising the issue of a VoC report is delaying his r. 1(8) motion against the Mother. The Father contended my consideration of the issue is “to the detriment of the children, who have been prevented from engaging in the court-ordered reintegration therapy that was ordered since October 2024.”
28The Father further complained that I failed to “provide any law to support [my] position on the issue of [my] jurisdiction, and [my] Endorsement lacked any particulars as for [my] reasoning for taking [my] position as well as lacking any insight as to what law or statute [I] intended to rely on.”
29The Father’s written submission continues, claiming that I “forced” him to provide a “fulsome approach to this legal summary and to endure the high cost of preparation” to which he says that he will seek full reimbursement from the Mother. He took that position before even receiving her written submissions on the issue I had raised.
30The Father added that:
a. I lack the jurisdiction to raise the issues in this motion as “there is no court case before the Court”;
b. The jurisdiction to raise these issues cannot be found under rr. 2(2) – (4) of the FLR;
c. The evidence does not support my “request for a private VOC”;
d. In the face of the Mother’s breaches of the Mills J. order, I “[lack] the jurisdiction to grant the relief sought by [the Mother].”
31I will review each of these arguments below. But before I do so, I will set out the Mother’s response, in brief:
a. My jurisdiction to order a private VoC report stems from the Court’s “inherent authority to control its process and make orders that ensure fairness and upholds principles of natural justice as between parties.”
b. The Court also retains parens patriae jurisdiction in all matters affecting the best interests of children;
c. The Father is attempting in his r. 1(8) motion to obtain an order which will “impede [the Mother’s] ability to continue to participate in these proceedings”. Because “[c]hoices made by the children will therefore result in dire consequence to [her] directly”, it is “incumbent [on this Court] to assess the views and preferences of the children to determine the enforcement and/or proliferation of terms which rest on the participation of both T and J. The only way to obtain this information is through a Voice of the Child Report”.
Issues
32Whether this court can and should appoint a professional to prepare a VoC report within the context of this r. 1(8) motion is a preliminary question within the larger motion. In order to answer it, the court must consider the following issues:
a. Does this court have the jurisdiction to appoint a professional to prepare a VoC report in this r. 1(8) proceeding on its own initiative?
b. If so, should this court order that a professional prepare a VoC report in this proceeding on its own initiative?
c. If so, on what terms?
Issue No. 1: Does this court have the jurisdiction to appoint, on its own initiative, a professional to conduct and prepare a VoC report in this r. 1(8) proceeding?
33Determining whether this court has the jurisdiction, on its own initiative, to appoint a professional to conduct a VoC report in this r. 1(8) motion requires it to consider the following sub-issues:
a. Does this court’s jurisdiction under the FLR allow it to order the preparation of a VoC report on its own initiative?
b. Does this court’s inherent jurisdiction to control its process allow it to order the preparation of a VoC report on its own initiative?
c. Does this court’s parens patriae jurisdiction allow it to order the preparation of a VoC report on its own initiative?
d. If the answer to any of the three questions above is positive, does the fact that the Mills J. Order, which the Father is attempting to enforce under r. 1(8), was based on an award under the Arbitration Act mean that this court’s jurisdiction to order the preparation of a VoC report is ousted?
Sub-issue a: Does this court’s jurisdiction under the FLR allow it to order the preparation of a VoC report on its own initiative?
34The FLR offers the court a broad palette of procedural remedies in order to do justice between the parties and on behalf of their children.
35The starting point is r. 2(2), which sets out the primary objective of the FLR: “to deal with cases justly”. Under r. 2(3), the term “dealing with cases justly” is described as including:
(a) ensuring that the procedure is fair to all parties;
(b) saving expense and time;
(c) dealing with the case in ways that are appropriate to its importance and
complexity; and
(d) giving appropriate court resources to the case while taking account of the need
to give resources to other cases.
36Under r. 2(4) this court is required to apply the FLR to promote their primary objective. Under r. 2(5), the court does so through active case management, which includes controlling the progress of a case, considering whether the likely benefits of a step justify the cost, and dealing with as many of the aspects of the case as possible on the same occasion.
37Under r. 1(7.2), “for the purposes of promoting the primary objective of these rules as required under subrules 2(4) and, particularly, (5), the court may make orders giving such directions or imposing such conditions respecting procedural matters as are just.” The subrule sets out a number of potential procedural orders which a court may make, but as the wording set out above makes clear, the list it sets out is not a closed one.
38Rather, as the Court of Appeal for Ontario stated in A.A. v. Z.G., 2020 ONCA 192, at para. 24, r. 2 "... specifically grants judges some procedural freedom to resolve family law disputes fairly and expeditiously." That freedom was described in Titova v. Titov, 2012 ONCA 864, at para. 48 as “great latitude to adjudicate cases fairly”. It was also described by the Divisional Court in Woods v. Timko, 2024 ONSC 1150 (Div. Ct.), at para. 45 as “broad discretion to deal with cases justly.”
39In Titova, the Ontario Court of Appeal relied on that freedom or latitude to grant a remedy not explicitly requested by either party. In doing so, it considered a number of factors, including those cited in r. 2(3). In Timko, the Divisional Court stated at para. 47 that “[t]here may be circumstances in which unrequested orders are appropriately made.” The court pointed to the principle cited by the Ontario Court of Appeal in Richardson v. Richardson, 2019 ONCA 983, at para. 26, that the court does not have to accept the position of the parties where it is not in the best interests of the children”.1
40That being said, of course, before a court makes an unrequested order, it must give the parties to opportunity to make submissions, as the parties were given in this proceeding.
41I offer a further note of caution as well. As I wrote in Kolodziej v. Kolodziej, 2020 ONSC 3944, at para. 45:
I add that r. 2(2) does not offer carte blanche to litigants who ask for one thing in their notice of motion and then request another in court. Nor is it a magic wand that allows creative judges to impose whatever terms they wish in deciding family law cases, whatever the parties have requested or expect. The use of the degree of discretion enabled by r. 2(2) must be exercised in a manner that does justice to the parties.
I should add to that citation that r. 2(2) must be exercised in a manner that does justice to the parties and their children.
42No authorities have been brought to my attention where the sub-rules cited above have been utilized to order a private VoC report in a r. 1(8) motion, whether or not on the court’s own initiative. That is because most VoC reports are not privately prepared. Rather, they are ordered under the statutory authority of s. 112 of the CJA and are prepared by a public body, the OCL. As set out above, s. 112 does not apply to the r. 1(8) proceeding presently before the court.
43In Religa v. Nesrallah, 2017 ONSC 1491, Doyle J. cited s. 30 of the CLRA as the authority to select a professional to conduct a private VoC report. That provision allows for the appointment of a “person who has technical or professional skill to assess and report to the court on the needs of the child and the ability and willingness of the parties or any of them to satisfy the needs of the child.” However, like s. 112 of the CJA, s. 30 of the CLRA is inapplicable to this case. It is limited to an application “for a parenting order or contact order with respect to a child…” There is presently no such application before the court regarding T and J.
44In Svirsky v. Svirsky, 2013 ONSC 5564, at para. 21, Kiteley J. observed that there is no statutory authority to appoint a person to prepare a private VoC report. However, in Canepa v. Canepa, 2018 ONSC 5154, at para. 18, Kiteley J. found that there was regulatory authority to appoint a person to prepare such a report. It comes under what is now r. 20.3, which allows the court “on motion or on its own initiative, [to] appoint one or more independent experts to inquire into and report on a question of fact relevant to an issue in the case.” In Svirsky, the issue was the views and preferences of the children before the court as to an increase in their parenting time with their father.
45In Mohajeri v. Stroedel, 2020 ONSC 6554, Kraft J. found that r. 20.3 offered her the jurisdiction to order a parenting assessment, writing at para. 81:
If my jurisdiction to order a "s.30 assessment" does not lie in the CLRA, I have the authority to order an assessment under the rule 20.3 of FLRs and do so in the same terms as are set out in s.30.
46In conclusion on the point, the FLR allows the court to fashion a wide variety of procedural orders, whether on motion or on its own initiative, to ensure that justice is done between the parties and that any order made is in the best interests of the subject child. While many of those potential orders are set out in specific subrules such as r. 1(7.8), the court is not bound by the strictures of that list.
47Nonetheless the court must be circumspect before it departs too far from that list as well. It must ensure that the order it is considering is requested or at least that the parties have the right to have their say about the propriety and fairness of the order. Further that order must, to the extent that it is about a child, be in the child’s best interests.
48Further, while it is not necessary to appoint an expert to conduct a VoC report, r. 20.3 explicitly grants it the jurisdiction to do so on its own initiative.
49For those reasons, I find that the jurisdiction exists under the FLR for the court to order a private VoC report on its own initiative.
50If I am incorrect in that regard, I go on to consider whether the court has the inherent and/or parens patriae jurisdiction to make such an order on its own initiative.
Sub-issue b: Does this court’s inherent jurisdiction to control its process allow it to appoint a professional to conduct and prepare a VoC report on its own initiative?
51In Romeo v. Ford Motor Co., 2017 ONSC 6674, Morgan J. considered the wide breadth of this court’s inherent jurisdiction. While his decision was made within the context of an intervention application within a class action certification motion, his reasoning has broader application. He wrote at para. 13:
13 … As a superior court of the province, this court has inherent jurisdiction to govern its own processes. This inherent jurisdiction is a broad one; indeed, it is "a concept whose nature has been described as 'so pervasive in its operation that it seems to defy the challenge to determine its quality and to establish its limits'": Montreal Trust Co. v. Churchill Forest Industries (Man.) Ltd., [1971] 4 WWR 542, at para 15 (Man CA). quoting I.H. Jacob"The Inherent Jurisdiction of the Court" (1970), 23 Current Legal Problems 23. It includes the power to set aside its own judgments, to appoint a receiver, to design fair procedures, to determine who is a proper party, and, generally, all "powers which are necessary to enable it to act effectively within [its] jurisdiction": Connelly v. Director of Public Prosecutions, [1964] 2 All E.R. 401, 409 (HL).
52Regarding the limits of that inherent jurisdiction, Morgan J. added at para. 14 that “the court cannot exercise its inherent jurisdiction in a way that conflicts with the requirements of a statute or Rule of procedure…”. See also Baxter Student Housing Ltd. v. College Housing Co-operative Ltd. et al., [1976] 2 S.C.R. 475, at pp. 480-481.
53In RBC v. Gill, 2025 ONSC 3095, at paras. 31-37, a civil decision dealing with venue shopping, I examined the inherent jurisdiction of the Superior Court of Justice to control its process in a variety of legal contexts. I wrote:
31 It is trite to say that this court, as a superior court of justice, possesses the inherent jurisdiction to control its process. In R. v. Cunningham, 2010 SCC 10, a criminal case concerning the discretion of the court to refuse to allow counsel to remove themselves from the record, Rothstein J., writing for the Supreme Court of Canada, stated at para. 18:
18 Superior courts possess inherent jurisdiction to ensure they can function as courts of law and fulfil their mandate to administer justice (see I. H. Jacob"The Inherent Jurisdiction of the Court" (1970), 23 Curr. Legal Probs. 23, at pp. 27-28). Inherent jurisdiction includes the authority to control the process of the court, prevent abuses of process, and ensure the machinery of the court functions in an orderly and effective manner
32 In R. v. Rose, [1998] 3 S.C.R. 262, (S.C.J.), a case dealing with the constitutionality of the Criminal Code's rules regarding the order of jury final addresses, L'Heureux-Dubé J., concurring with the majority of the Supreme Court, wrote the following at para. 130 regarding the court's inherent jurisdiction to ensure the fairness of the trial process:
However, the inherent jurisdiction of superior court judges to remedy procedural unfairness during the trial has always existed at common law. In R. v. Osborn, [1969] 1 O.R. 152, the Ontario Court of Appeal correctly observed that courts have from the earliest times invoked an inherent jurisdiction to prevent the abuse of trial process resulting from oppressive or vexatious proceedings. In Selvey v. Director of Public Prosecutions, [1968] 2 All E.R. 497, at p. 520, Lord Guest referred to the overriding duty of the trial judge to ensure that a trial is fair. He wrote that this duty: “springs from the inherent power of the judge to control the trial before him and to see that justice is done in fairness to the accused”.
33 L’Heureux-Dubé J. added the following comments regarding the scope of that inherent jurisdiction at para. 131, citing the article of I. H. Jacob entitled “The Inherent Jurisdiction of the Court” (1970), 23 Curr. Legal Probs. 23, as follows:
a trial judge always possesses an inherent jurisdiction to ensure that the trial is conducted fairly. Inherent jurisdiction cannot be circumvented by narrow or confining statutory language. Jacob aptly described this fundamentally important residual power in this way, at pp. 27-28:
For the essential character of a superior court of law necessarily involves that it should be invested with a power to maintain its authority and to prevent its process being obstructed and abused. Such a power is intrinsic in a superior court; it is its very life-blood, its very essence, its immanent attribute. Without such a power, the court would have form but would lack substance. The jurisdiction which is inherent in a superior court of law is that which enables it to fulfil itself as a court of law. The juridical basis of this jurisdiction is therefore the authority of the judiciary to uphold, to protect and to fulfil the judicial function of administering justice according to law in a regular, orderly and effective manner.
34 In R. v. Felderhoff (2003), 68 O.R.(3d) 481 (Ont. C.A.), Rosenberg J.A., writing for the Ontario Court of Appeal stated at para. 40, regarding the role of the trial judge:
It would undermine the administration of justice if a trial judge had no power to intervene at an appropriate time and, like this trial judge, after hearing submissions, make directions necessary to ensure that the trial proceeds in an orderly manner. I do not see this power as a limited one resting solely on the court's power to intervene to prevent an abuse of its process. Rather, the power is founded on the court's inherent jurisdiction to control its own process.
35 In Abrams v. Abrams, 2010 ONSC 2703, a case dealing with this court's inherent jurisdiction to issue case management directions in an estates matter, D.M. Brown, as he then was, wrote at para. 32:
32Whichever view one takes of how to articulate the source of a court's inherent powers, the commentators unite in recognizing that courts, at least superior courts of record, enjoy inherent powers to regulate and control their own process and proceedings other than those which are conferred on them by legislation, including delegated legislation such as rules of practice.2 Indeed, less than two years ago, former Chief Justice Lesage, and now Justice Code of this court, in their Report of the Review of Large and Complex Criminal Cases Procedures wrote:
[At] common law "the trial judge" has significant case management powers, both when hearing motions at the pre-trial stage and when hearing evidence at trial. All trial courts, whether statutory courts or superior courts, have the implied power to control their own process and ensure a fair trial. It is from this broad power that the common law developed an expansive list of remedial tools designed to ensure the fairness and effectiveness of trial processes.3
36 At para. 33, D.M. Brown J. cited an article by Justice Casey Hill,4 which "exhaustively reviewed the origins and scope of a judge's inherent powers to manage a criminal trial". D.M. Brown J. found that Justice Hill's comments apply with equal force to civil proceedings. Among the excerpts of the Justice Hill article cited by D.M. Brown J. were the following:
Originally cast in terms of inherent authority to control the processes of the court and prevention of abuse of the process, it is today recognized that a trial judge has a duty to manage the trial process balancing fairness to the parties as well as efficient and orderly discharge of court process. Judicial management of litigation recognizes that "there is more at stake than just the interests of the accused". Management involves control, direction and administration in the conduct of a trial. This power, settled within a broad discretion, relates to the entirety of the trial proceeding extending beyond the scope of pre-trial case management rules designed for "effective and efficient case management".
With the court's compass steadily pointed toward trial fairness, a trial judge's obligation to the administration of justice includes prevention of unnecessary delay or abuse of the court's process as well as attention to conservation of cost and resources.
In disposing of matters promptly, efficiently and fairly, a judge must demonstrate due regard for the rights of the parties to be heard and to have issues resolved without unnecessary cost or delay. A judge should monitor and supervise cases so as to reduce or eliminate dilatory practices, avoidable delays and unnecessary costs.
37 D.M. Brown J. continued at para. 34 regarding the breadth of the court's inherent powers:
These inherent powers are broad. It is difficult to set the limits upon the powers of the court in the exercise of its inherent jurisdiction to control and regulate its process because those limits cannot impair the need of the court to fulfill its judicial functions in the administration of justice.5 That said, the exercise of inherent powers must not undermine principles of procedural natural justice or fairness. As the Court of Appeal recently pointed out, while a trial court has the inherent jurisdiction to control its own process, that jurisdiction does not extend to dismissing cases without hearing the available evidence and submissions.6
54In the family law context, in A.F. v. D.G, 2015 ONCA 290 the Court of Appeal for Ontario considered the inherent jurisdiction of the court to control its process within the context of the obligation of active case management set out in rr. 2(2)-(5). Writing at para. 13, Lauwers J.A. stated:
However, nothing in the FLR precludes a judge from using her inherent jurisdiction, and the obligation to actively case manage under r. 2(5), to seize herself of a case. This is the best means of promoting the objectives of the Rules and ensuring that cases are dealt with justly as required by r. 2(3).
55All that being said, the court’s inherent jurisdiction is a special and extraordinary power that should be exercised sparingly and in clear cases: Baxter Student Housing Ltd., at p. 480.
56From the authorities cited above, I take it that the court’s inherent jurisdiction to control its process is both broad and purposive in ensuring that procedural justice, the precursor to substantive justice, is done. But it is not a magic wand which a judge can wave, to do as he or she pleases. Rather it is a special and extraordinary power which, although rarely utilized, can be relied upon when a judge’s ordinary toolkit is insufficient to ensure fairness and efficiency in the judicial process.
57The authorities set out above refer to a power, when utilized, which is expansive and almost ineffable in scope. But its use must not exceed its necessity, so that a court must still be restrained before it utilizes a “break glass” jurisdictional power.
58Here, in determining the scope of the court’s inherent jurisdiction in regard to this r. 1(8) motion, a helpful interpretive guide is offered by r. 2(1). That subrule states that the primary objective of the FLR “is to enable the court to deal with cases justly”. That means, per r. 2(3)(a) “ensuring that the procedure is fair to all parties”. It also means per r. 2(3)(c) and (d):
(c) dealing with the case in ways that are appropriate to its importance and complexity; and
(d) giving appropriate court resources to the case while taking account of the need to give resources to other cases.
59Here, if I am wrong about the jurisdiction offered by the FLR to order a VoC report on the court’s initiative, the court’s power to control its process can be seen as wide enough to order that the parties obtain the evidence necessary to do justice in this case. Thus, the breadth of that inherent power can be extended to taking the steps necessary to ensure that the court is independently presented with the views and preferences of older children regarding an order that may significantly affect their lives, when the opportunity to receive that evidence would otherwise be unavailable.
Sub-issue c: Does this court’s parens patriae jurisdiction allow it to appoint a professional to conduct and prepare a VoC report?
60In S.D.G. v. A.S., 2015 ONSC 752, at paras. 48-55, McGee J. offered the following summary of the Superior Court’s parens patriae jurisdiction:
48 Parens patriae is the power of the court to act in the stead of a parent for the protection of a child: A.C.B. v. R.B., 2010 ONCA 714, at para. 23.
49 The power derives from the earliest stages of English law in which the sovereign, as parens patriae, was vested with the care of persons who were not able to take care of themselves; such as the mentally incompetent. In the seventeenth century the power was extended to children under wardship, and it has continued to evolve in order to protect those who cannot care for themselves.
50 Thus, courts have frequently stated that it is to be exercised in the "best interest" of the protected person, or again, for his or her "benefit" or "welfare."
51 The situations in which parens patriae has been exercised are not always consistent, but it is well settled that the jurisdiction is one of last resort, that it is to be used with caution, and only in accordance with its underlying principle: to do what is necessary for the protection of the person for whose benefit it is exercised and not for that of others.
52 Necessity may also be found within legislative gaps. Rosenberg J.A. stated at para 27 in A.A. v. B.B., [2007 ONCA 2] that"The court's inherent parens patriae jurisdiction may be applied to rescue a child in danger or to bridge a legislative gap."
53 In determining whether there was a legislative gap, he went on to consider whether the applicable statute in that case, the CLRA was intended to be a complete code with the result that any gap was deliberate. Were it deliberate, then it would be an inappropriate exercise of parens patriae jurisdiction to second guess
a decision within the mandate of the statutory authority.
54 As the Court of Appeal indicated at para. 30 in A.C.B., supra, assessing whether parens patriae should be exercised is a "very fact specific exercise." The modern view is that this exercise typically fits within one of the following traditional scenarios:
a. Where there is an unintentional legislative gap: see e.g. A.A. v. B.B., supra, at para. 27. This gap can be direct or indirect: see e.g. M.D. v. L.L., [2008] O.J. No. 907 (S.C.);
b. Where the child is in danger: see e.g. A.A. v. B.B., at para. 27; R. v. J.N., [2008] O.J. No. 3638 (S.C.);
c. In a judicial review of the exercise of statutory power by an administrative authority: see e.g. Beson v. Newfoundland (Director of Child Welfare), [1982] 2 S.C.R. 716; or
d. Where it is necessary to achieve the paramount objective of the applicable legislation: see e.g. A.A. v. B.B., at para. 40.
55 In summary, the power of parens patriae authorizes a court through its inherent jurisdiction to intervene and rescue a child at risk. It can sometimes be used to bridge a legislative gap so that the underlying purposes of the legislation are met. It does not confer supplemental jurisdiction to rewrite legislation or procedure.
61In light of my findings regarding the application of the FLR and this court’s inherent jurisdiction to control its process, it is not necessary to refer to this court’s parens patriae jurisdiction to order a private VoC report on its own initiative.
62However, if I am wrong regarding the two other sources of this court’s jurisdiction to order a private VoC report within the context of this motion, this case exposes an apparent legislative gap. As set out above, neither s. 112 of the CJA nor s. 30 of the CLRA apply specifically to allow this type of report to be ordered in a r. 1(8) motion.
63Furthermore, while the central purpose of this r. 1(8) motion is to enforce the requirement that almost 18 year-old T and 15 ¾ year old J attend reconciliation therapy and parenting time with the Father, the proceeding is not intended to be punitive. Any order made in that proceeding must be in the best interests of those two children: Bouchard v. Sgovio, 2021 ONCA 709, at paras. 65-67.
64Under both the DA and the CLRA, the views and preferences of a child are essential factors in determining their best interests. In fact, both statutes mandate that the best interests of children shall be the only consideration in making an essential order.7
65Under s. 16(3)(e) of the DA, the statute under which this proceeding was commenced:
- In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including
(e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained.
66Subsection 24(3)(e) of the CLRA uses language identical to s. 16(3)(e) above, regarding the child’s views and preferences as a factor in determining their best interests.
67Before making a decision in the best interests of an almost 18 year-old young man and a 15 ¾ year-old child, which indirectly requires them to obey a court order based on a two-year-old arbitration award, the court should hear their views and preferences. As set out below, while the children may resist compliance with the Award and the order of Mills J., there has been no finding that their views and preferences are not independent and thus should not be considered.
68On the other hand, though, T and J may well say that they want to take the steps mandated by the Award, but the Mother dissuaded or blocked them from doing so. If true, the court will not know this unless it hears from them.,
69Thus, if it is necessary to rely on the court’s parens patriae jurisdiction, it is available in this case to order a VoC report on the court’s initiative, if it so chose.
Sub-issue d: Does the fact that the Mills J. Order, which the Father is attempting to enforce under r. 1(8), was based on an award under the Arbitration Act mean that this court’s jurisdiction to order the preparation of a VoC report is ousted?
70The Father makes two further arguments in support of his claim that this court’s jurisdiction to order the preparation of a VoC report on its own initiative in this case is ousted. The first is based on the Arbitration Act. The second is based on the definition of the term “case” in the FLR.
71First, the Father argues that the court’s jurisdiction in this proceeding is governed by the Arbitration Act. The PC never appointed anyone to prepare VoC report. Relying on s. 6 of the Arbitration Act, he argues that this court cannot intervene in a matter governed by that Act.
72Section 6 reads as follows:
6 No court shall intervene in matters governed by this Act, except for the following purposes, in accordance with this Act:
To assist the conducting of arbitrations.
To ensure that arbitrations are conducted in accordance with arbitration agreements.
To prevent unequal or unfair treatment of parties to arbitration agreements.
To enforce awards.
73Citing Kaplan v. Kaplan, 2015 ONSC 1277, at para. 82, the Father argues that the court owes deference to family arbitrations, including an agreement to enter into arbitration.8 In fact s. 7(1) of the Arbitration Act states that, subject to certain exceptions:
If a party to an arbitration agreement commences a proceeding in respect of a matter to be submitted to arbitration under the agreement, the court in which the proceeding is commenced shall, on the motion of another party to the arbitration agreement, stay the proceeding.
74The Father also cites cases in which the Ontario Court of Appeal and the Divisional Court refused to allow a party to proceed in this court in regard to the issues which were the subject of a family arbitration agreement: Marchese v. Marchese, 2007 ONCA 34, at para. 5, Owers v. Owers, 2009 ONCA 296, at paras. 8 and 20, and Blustein v. Blustein, 2011 ONSC 1888 (Div. Ct.), at para. 5.
75However, those cases deal with a party who attempts to litigate family issues which they have agreed, pursuant to a binding family arbitration agreement, to arbitrate rather than litigate. Courts will honour those agreements. Nonetheless, that is not the issue before this court. Rather the parties have arbitrated certain issues and the Award has been incorporated into a court order. What is occurring in this motion is that the Father is attempting to enforce that order, the Mills J. Order. In doing so, he is now engaging each of the FLR, the FLA, and the Arbitration Act,
76The applicable provisions of the FLR are cited above. Turning to the FLA, s. 59.1(1) states that family arbitrations, family arbitration agreements and family arbitration awards are governed by the FLA and by the Arbitration Act. The terms, “family arbitration”, “family arbitration agreement” and “family arbitration award” are defined in s. 51 as follows:
“family arbitration” means an arbitration that,
(a) deals with matters that could be dealt with in a marriage contract, separation agreement, cohabitation agreement or paternity agreement under this Part, and
(b) is conducted exclusively in accordance with the law of Ontario or of another Canadian jurisdiction; (“arbitrage familial”)
“family arbitration agreement” and “family arbitration award” have meanings that correspond to the meaning of “family arbitration”; (“convention d’arbitrage familial”, “sentence d’arbitrage familial”)
77Under s. 50.1 of the Arbitration Act, “Family arbitration awards are enforceable only under the Family Law Act.”
78Nothing in any of those statutes or the FLR ousts the jurisdiction of this court to an order appointing an individual to prepare a VoC report.
79I note as well that in Kaplan, a case upon which the Father relies, as set out above, McDermott J. is clear at para. 66 that the general deference owed to the arbitration process is “[s]ubject to the best interests of the children, and in the absence of grounds for the court to exercise its parens patriae jurisdiction in order to protect those best interests…”.
80The Father’s second argument in support of the claim that this court’s jurisdiction is ousted is his assertion that his r. 1(8) motion is not a “case” at all. He cites r. 2’s definition of a case as “an application or any other method allowed in law for bringing a matter to the court for a final order or provisional order, and includes all motions, enforcements and appeals”.
81The Father continues, pointing out that the Mills J. Order is a final one and that the Mother did not bring a r. 15 motion to change the parties’ parenting arrangements. He asserts in his written submission that, with the facts of this case, there are only two bases on which this court can “intervene even though a final order is in place”. First is a motion to change and second is an enforcement motion under r. 1(8).
82In fact, this is a r. 1(8) motion even though it is brought after a final order is made. As such, it is, in the words of the FLR definition of “case”, above, “any other method allowed in law for bringing a matter to the court for a final order or provisional order … [including] all motions.”
83In short, I give no effect to either of the Father’s arguments that the form of this proceeding ousts my jurisdiction to order the preparation of a VoC report.
Issue No. 2: Should this court appoint a professional to prepare a VoC report?
84I first raised the issue of a VoC for T and J because of the ages and the consequences on them of the order that the Father is seeking. As set out above, T is almost 18 and J is 15 ¾ years old.
85The order which the Father seeks in this proceeding may only indirectly affect those children in that it aims for significant and ongoing consequences against the Mother, not them. But, if the order sought by the Father is granted, those consequences can have a serious impact on those children as well. It would punish the Mother for failing or refusing to require them to comply with the terms of the Award, as incorporated into the Mills J. Order. It would indirectly require them to attend a form of therapy which they may or may not wish to participate in and may require them to see the Father in a manner which is contrary to their wishes.
86Further, the punitive terms of the Award impose a fine of $500/day on the Mother for noncompliance with certain terms of the Award involving the children. That fine can be deducted from the Father’s child support obligations. That term was incorporated into the Award despite the fact that it is now trite law that child support is the right of the child, not the parent. It is a right which cannot be bargained away and a right that is independent of a parent’s conduct: D.B.S. v. S.R.G., 2006 SCC 37, [2006] 2 S.C.R. 231, at para. 104;Richardson v. Richardson, [1987] 1 S.C.R. 857, at para. 14; Gray v. Rizzi, 2016 ONCA 152, at para. 58; C.M.M. v. D.G.C., 2015 ONSC 1815, at para. 90; Willick v Willick, [1994] 3 S.C.R. 670, at para. 16; Deiter v. Sampson, [2004] O.J. No. 904, 184 O.A.C. 198, at para. 4.
87Yet, despite the fact that child support is the right of the child, the r. 1(8) order sought by the Father could deprive the Mother of tens of thousands of dollars in child support for them.
88The Father argues that I should not give an audience to the children in this case because:
a. The Mother is in breach of the Mills J. Order and the Award. He argues that the Mother should not be entitled to take any further step in this proceeding while she is in breach of the Mills J. Order and the Award. That is also one of the heads of relief in this motion. The Father cites the following cases where non-compliance by a party is very relevant factor in the court’s exercise of its discretion:
i. Chen v. Zhang, 2026 ONCA 137, where a party’s failure to pay child support was a reason to deny a request to extend a limitation period for an equalization claim;
ii. Gordon v. Starr, where the court considered a motion to dismiss or stay a party’s action because of their failure to obey a previous costs order. The court chose not to do so for practical reasons, including the timing of the impending trial;
iii. Paletta v. Mariani, 2022 ONSC 6344, where Bale J. refused to grant an order under r. 1(8), denying a party an audience with the court based on a breach of a spousal support order. The moving party cited the same principles relied upon by the Father here. Nonetheless, Bale J. refused to grant that relief, writing at para. 24
24 However, it is also important to permit full participation by both sides of a case and to protect the adversarial structure of a proceeding wherever possible. This is particularly true in cases which involve the rights and interests of children. The remedy imposed should not "go beyond that which is necessary to express the court's disproval of the conduct in issue". As such, remedies which result in the denial of an audience to one party should be used sparingly, and only in the most compelling of cases: see Marcoccia v. Marcoccia, 2008 ONCA 866 at p. 23, Purcaru v. Purcaru, 2010 ONCA 92 at para. 49-50, Chiaramonte v. Chiaramonte, 2013 ONCA 641.
iv. Abu-Saud v. Abu-Saud, 2020 ONCA 824, where the Court of Appeal for Ontario quashed a husband’s appeal of a spousal support order because of his failure to honour both that order and a temporary support order of the appellate court, made during the course of the appeal process. The court characterized the appellant’s breaches as “deliberate, relentless, and indefensible”, particularly in the face of the respondent’s impecuniosity.
b. The court has upheld arbitration awards despite issues with the formalities of the arbitration itself: Shinder v. Shinder, 2022 ONSC 181 and Lopatowski v. Lopatowski, 2018 ONSC 824.
c. The Father then cited, without explanation, cases about reasonable apprehension of bias: Stuart Budd & Sons Limited v. IFS Vehicle Distributors ULC, 2016 ONCA 609 and Sorger v. Bank of Nova Scotia, 39 O.R. (3d) 1 (C.A.).
d. The Father further argued that no admissible facts in this case justify the order I was considering. In this regard, he cites, again without explanation, paras. 56-57 of Whitehead v. Tucker, 2025 ONCA 674, which speak to the palpable and overriding error standard for appellate intervention regarding findings of fact.
89Having considered those cases, I find the following problems with the Father’s arguments:
a. An order appointing a professional to prepare a VoC report within the context of this motion is not an order in favour of a party in breach of a court order. Rather, if granted, it is relief on behalf of the children, not the Mother.
b. The Court has not yet made a finding that the Mother is in breach of a court order, although admittedly and without prejudice to the result of the r. 1(8) motion, she does not appear to be in compliance with the Mills J. Order. Nonetheless, a VoC report may be relevant to the court’s consideration of the following issues in the Father’s r. 1(8) motion:
i. whether the Mother is responsible for any failure by T or J to comply with the Mills J. Order;
ii. if so, the degree of her responsibility; and
iii. if the Mother bears responsibility for a breach of the Mills J. order, what remedy is appropriate?
c. If the father appeals any order I make, the appellate standard of review will apply. But I point out that thus far, I have not made any findings of fact in this motion, other than the ages of the children and the terms of both the Award and previous orders of this court.
90In support of a VoC order, the Mother points out that both the DA, s. 16(1) and CLRA, s. 24(1) have elevated children’s best interests from a paramount consideration to the only consideration regarding parenting orders: see for example, Gordon v. Goertz, [1996] 2 S.C.R. 27, at paras. 19 and 28.
91Further, s. 64 of the CLRA states that a court considering a parenting issue “where possible shall take into consideration the views and preferences of the child to the extent that the child is able to express them.” In addition, as set out above, the determination of a child’s best interests under both statutes includes a consideration of their views and preferences, giving weight to their age and maturity, when they can be ascertained.
92The Mother cites two Supreme Court of Canada cases speaking to the rights of children to participate in decisions affecting their lives:
a. Michel v. Graydon, 2020 SCC 24, at para. 77, where Martin J. wrote10 that “[t]oday, children are viewed as individuals who, as full rights bearers and members of a group made vulnerable by dependency, age, and need, merit society's full protection” [emphasis added].
b. Dunmore v. Mehralian, 2025 SCC 20, at para. 59, where Martin J., writing for the majority, refused to accept that children are merely "passive recipients of their parents' decisions". Rather, “the better view is that they are ‘people with a part to play in their own lives’”.11
93The Mother further relies on this comment by Professors Nicholas Bala and Rachel Birnbaum, cited by Benotto J.A., writing for the Court of Appeal for Ontario in Ontario (Children’s Lawyer) v. Ontario (Information and Privacy Commissioner), 2018 ONCA 559, at para. 62:
Over the past several years, courts have taken great initiative to seek out and consider the views and preferences of the child. Professors Birnbaum and Bala explain:
The movement towards child inclusion in decision-making in education, medical treatment, and various areas of the law, including separation and divorce, has grown over the last decade. Studies have explored children's rights as citizens, children's perspectives on family relationships and what is a family, and children's attitudes about parental separation and participation in the decision-making process about post-separation parenting. Research clearly suggests that children's inclusion in the post-separation decision-making process is important to the promotion of their well-being. [Footnotes omitted.]
94The Mother also raises the issue of T and J’s right to have a say about their involvement in reconciliation therapy. In A.M. v C.H., 2019 ONCA 764, the Ontario Court of Appeal found, at para. 51, that “where parents cannot agree, a court may make orders about almost any aspect of the child's life, including … an order for counselling or therapy.”
95But at para. 71, Pardu J.A. wrote for the court that while the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A “does not limit the courts' jurisdiction to make therapeutic orders in the child's best interests”:
A court must always consider a child's view and preferences, but a child's refusal to participate in a therapeutic intervention will not necessarily determine whether a court can make such an order. Rather, a court must assess the child's maturity and weigh their wishes accordingly, in relation to the various factors listed in section 24(2) of the Children's Law Reform Act.
96The Mother also cited V.L. v. M.L., 2019 ONSC 7367, where Audet J., an experienced and respected judge of this court’s Family Court, concluded that forcing further reconciliation therapy on a child would only harm him. Audet J. wrote the following at paras. 124-126:
124 As for U.L., I conclude with humility and sadness that our efforts throughout this judicial process have only caused a further deterioration of his already damaged relationship with his father and have failed to provide him with anything other than more pain, stress and emotional harm. Despite everyone's best and genuine efforts, U.L. has come to believe that at 12-13 years of age, he can decide and take charge. His deeply held belief of not being heard by his father or by anyone else in this judicial process, a belief that even a judicial interview and the appointment of his own legal counsel could not appease, has led to him feeling justified to refuse to go on court-ordered access visits, to terminate his counselling sessions with Dr. Goldstein (which had been agreed upon by both his parents), and to go as far as to write to me directly (with the assistance of school staff) to make his wishes and preferences on those issues crystal clear.
125 Over the past few years, U.L. has been in counselling with at least five different therapists and he has been interviewed by Dr. Weinberger as well as by several child protection workers and police officers, by his lawyer, by Dr. Rabie, by Ms. Norgaard and by Ms. Crowley (to name only those). His every word and his every move have been the subject of intense scrutiny by assessors, investigators, lawyers and the court. He has made it clear that he will not voluntarily engage in any other form of assessment or therapeutic process, and that he wants to live the rest of his childhood (and life) in peace.
126 In those circumstances, any further efforts aimed at supporting a healing process through court-ordered therapeutic intervention is not only deemed to fail, it is sure to cause him significant emotional, psychological and even possibly physical harm.
97The Mother asserts that this may well be the case for both T and J. The court must hear from them to make that determination.
Discussion
98In R.L. v. M.L., 2023 ONSC 2885, I considered at length a number of authorities regarding the rights of older children to have a say in parenting decisions which affect them. As I believe that it is relevant to my considerations here, I repeat much of that discussion, which I adopt for the purpose of this proceeding, as follows:
166 In R.G. v. K.G., 2017 ONCA 108, at para. 67, Benotto J.A., writing for the Court of Appeal for Ontario recognized "the emerging movement to incorporate the voice of the child in all matters concerning minors". She pointed out that "[t]he degree to which the court will follow the wishes of the child will depend upon the age and level of maturity of the child and will be subject to the judge's discretion as she seeks to determine the child's best interests."
168 Many cases have considered the extent to which older children should have a say, a vote, or even a veto with regard to their parenting arrangements. I cite a representative sample of them below. They demonstrate the extent to which children's right to have a say in their parenting arrangements can be both nuanced and contextual. Those rights do not simply depend on findings of bad behaviour by the rejected parent or alienation by the favoured parent. Rather, they depend on the balancing of several factors, including the age and maturity of the child/ren in question, their rights, the behaviour of each parent, and ultimately whether the court finds that the children's best interests should subordinate their wishes and even rights.
169 That being said, courts, of all places, cannot ignore the fact that older children have the right to a say in their parenting arrangements, even if they are contrary to the views of their elders. I should add that a number of cases show that there need not be a dichotomy between best interests and a child's right to have a say in their parenting arrangements. A child's growing sense of autonomy may be an important factor in determining their best interests. That does not mean that they can always dictate their parenting arrangements. But it does mean that their voice is a key component in the decision-making.
170 In Blair v. Blair, [1995] O.J. No. 2962 (Gen.Div.), O'Connor J. determined that the 14-year-old before the court lacked the maturity to decide on his parenting arrangements. He wrote that:
The court should consider the maturity of the child, the extent to which he has thought through his decision, and the factors influencing it. Ultimately, the court, and not the child must make the decision as to his best interests. The courts should not and do not slavishly follow the wishes of teenage children.
171 In Decaen v. Decaen, 2013 ONCA 218, at para. 42, the Ontario Court of Appeal adopted the following list of factors relevant to "assessing the significance of a child's wishes", found in Bala, Nicholas; Talwar, Victoria; Harris, Joanna"The Voice of Children in Canadian Family Law Cases", (2005), 24 C.F.L.Q. 221:
(i) whether both parents are able to provide adequate care; (ii) how clear and unambivalent the wishes are; (iii) how informed the expression is; (iv) the age of the child; (v) the maturity level; (vi) the strength of the wish; (vii) the length of time the preference has been expressed for; (viii) practicalities; (ix) the influence of the parent(s) on the expressed wish or preference; (x) the overall context; and (xi) the circumstances of the preferences from the child's point of view...
172 In Mikkelsen v. Mikkelsen, Gordon J. deferred to the preferences of three children aged 16, 14 and 11 not to spend time with their father. In a decision that citied considerable caselaw, Gordon J. ultimately followed the wishes of the children, particularly the eldest one. He included the other two children in the same decision, citing the uniformity of their views (which he described as "sibling cogency"). He concluded:
91 Having regard to the ages of the children, however, and their sincere preferences, and taking into account the considerations in Section 24 regarding their best interests, any order forcing them to attend for access or counseling would not be of practical use. Nor would a custody order to the Father, however modified.
92 I decline to issue any order that would interfere with the sibling cogency of these three and for that reason and accepting that M. is mature and intelligent, I accept that his preference as sufficiently significant to leave his status as at present.
93 Even assuming some improper influence consciously or unconsciously by the Mother, there can be no finding having regard to the ages of the children except that the Mother shall have custody with access solely at the discretion of the children.
173 In Fraser v. Logan, 2012 ONSC 4087, Johnston J. varied a custody and access order after the children, aged 16 and 13, expressed a preference not to spend time with their father. Johnston J. gave great weight to the ages of the children, writing:
65 To order the boys to continue to participate in week about access with their Father would be to invite continued violation and breach of the Order. Continued conflict involving the children is not in the children's best interests. While I cannot find on the evidence there has been parental alienation, even if I was so satisfied; given the ages of the boys it does not change the result.
66 In my view, the best way to avoid ongoing conflict is to respect the wishes of Kaelan and Ryan. That is not to say that the Father's concerns regarding the Mother are without foundation. Mother needs to continue to start continue to use all of her efforts to foster and encourage a relationship between Father and the boys. I find that it is in the best interests of both boys that they continue to have a meaningful relationship with their Father. Studies on the topic demonstrate that in the absence of a need to curtail contact, meaningful participation by both parents is in the long term best interests of children; not only now but as they move into adulthood. It is crucial in the boys best interests that Mother permit meaningful time with Father. On the other hand, Father must respect the views of his children as they grow into young adults.
174 The decision of Johnston J. was upheld on appeal, 2013 ONCA 93, with the Ontario Court of Appeal writing:
2 Nor do we see any error in the access order. The children are almost 17 and 14 respectively. Their best interests require that their wishes be given very significant weight. Indeed before us the appellant appears to acknowledge this.
3 His real complaint before us appears to be that the respondent is not actively encouraging more access. We agree with the motion judge that it is in the best interests of both boys that they continue to have a meaningful relationship with their Father. The Mother should not impede this and indeed should encourage it. But in the end the motion judge was in our view correct, that the best interests of the children are best served by the access order he made that respects their views.
175 In N.M.B. v P.P.K., 2019 ONSC 726, Sanfilippo J. thoughtfully considered the parenting arrangements for two children, one almost 16 and another 12. Both children had been described by the parents as "mature, clever and intelligent". While there was a question as to the independence of the children's views and preferences in light of the influence of one parent, Sanfilippo J. accepted their independence. He also accepted that different factors apply to each of 16- and 12-year-old children.
176 After a detailed review of the applicable caselaw, Sanfilippo J. accepted the children's views and preferences to primarily reside with one parent. But he did not follow their desire to terminate their parenting time with the other parent. In making those choices, Sanfilippo J. recognized the right of a 16-year-old to make decisions regarding their parenting. As he pointed out, citing the comment of Benotto J.A. in R.G. v. K.G., above, those rights go so far as withdrawal from parental control. Nonetheless, he required the 16-year-old to engage in parenting time with her Father against her wishes.
177 Sanfilippo J. reasoned that for the children"life-long estrangement from their father is a disproportionate consequence" to the Father's conduct and their consequent feelings of hurt and confusion. He asserted that neither child had the right to make that choice. He explained what he saw as the limits to the near 16-year-old's rights when they butt up against the court's conception of best interests as follows, at para. 250:
I have fully taken into consideration that Child 1 will shortly be 16 years of age. I place a large weight on her views, given her age and evidence of her maturity. However, I have decided to include Child 1 in the required access visits with the Father to provide an opportunity for her to re-establish a relationship with him, together with Child 2's renewed access with the Father. The Children have always supported each other in their initiatives, and this is an opportunity for them to do so in restoring a relationship with their Father.
178 That decision, as it affects the 16-year-old child, swims against the stream of authority regarding the right of a child of that age to resist being forced into unwelcome parenting time.
179 Contrary to that decision, in Y.M.S. v. R.O.S., 2021 ONSC 6684, Doi J. took an equally thoughtful approach to parenting arrangements for a child aged 15 who had a "complicated" and troubled" relationship with his father. But Doi J. chose not to force the child to have parenting time against his wishes. The child's father had moved to vary the final parenting arrangements for both the 15-year-old child and his 18-year-old sister, so that they would be required to live with him. He withdrew his request regarding the 18-year-old at the commencement of trial, accepting that their relationship was irretrievably broken. Doi J. refused to change the 15-year-old child's primary parenting or even order parenting time against the child's wishes. He found that the father's relationship with the child would be better served by respect for the child's boundaries. The child should be allowed to take the initiative in re-establishing a relationship.
180 In M.C. v M.A.C., 2019 ONSC 6769, I considered the motion of a parent for access to his 17- and 11-year-old children. I found that different criteria applied to each. With regard to the 17-year-old, I did not require that she have access against her wishes. I found that forcing her would be counterproductive and contrary to her best interests, including her sense of autonomy. However, I made a different order for the 11-year-old, finding that he had a say but not a veto over his parenting arrangements.
181 Regarding the older child, I wrote:
75 A child's age is a vitally important consideration in a court's determination of what parenting arrangements are in a child's best interests. By the time that a child reaches the age of 16, courts will not normally force the child to live with or have parenting time with a parent against the child's wishes. That understanding was affirmed by the Ontario Court of Appeal in G. (R.) v. G. (K.), 2017 ONCA 108....
79 In Medjuck v. Medjuck, 2019 ONSC 3254, Kristjanson J. found that there was no need to obtain a Voice of the Child report for a 17-year-old. Citing G. (R.) v. G. (K.), Kristjanson J. wrote:
As a practical matter, the court will likely not make a custody and access order given his age.
80 There may conceivably be factors, including a child's special needs or a clear finding of alienation that may, in some circumstances, ameliorate the practical policy articulated by Kristjanson J. (see for example, B (SG) v L (SJ), 2010 ONSC 3717, but see also 2010 ONCA 578, where the stay of that decision was upheld by the Ontario Court of Appeal).
182 One source of authority that the Mother asks me to consider in this case is Article 12 of the United Nations Convention on the Rights of the Child, Can. T.A. 1992 No. 3 (the "Convention"). She portrayed that provision as offering a free-standing authority for the rights of a child in a court proceeding to be "heard" in court proceedings affecting them. Article 12 reads as follows:
Article 12
States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.
183 The Convention is increasingly cited as a source of legal rights for children: see B.J.G. v. D.L.G, 2010 YKSC 44, at paras. 3-5. But as the Supreme Court of Canada has pointed out in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at para. 69, since the Convention has not been implemented by Parliament, its provisions do not form a direct part of Canadian law. Rather, it "may help inform the contextual approach to statutory interpretation" of the provisions of Canadian legislation (such as the Divorce Act): para. 70. In saying this, the Court quoted from R. Sullivan, Driedger on the Construction of Statutes (3rd ed. 1994), at p. 330:
[T]he legislature is presumed to respect the values and principles enshrined in international law, both customary and conventional. These constitute a part of the legal context in which legislation is enacted and read. In so far as possible, therefore, interpretations that reflect these values and principles are preferred.
[Emphasis added by the Supreme Court.]
184 In A.C. v Manitoba (Director of Child and Family Services), 2009 SCC 30, [2009] 2 S.C.R. 181, the Court was faced with a child protection appeal regarding the right of a 14-year-old child with cancer to refuse a blood transfusion which would violate their religious beliefs. Writing for the majority, Abella J. referred to a child's right to input in decisions affecting them as a wellspring of the determination of their best interests, with their input growing with their "developing maturity". As Abella J. wrote at para. 93:
... a robust conception of the "best interests of the child" standard is also consistent with international instruments to which Canada is a signatory. The [Convention] ... describes "the best interests of the child" as a primary consideration in all actions concerning children (Article 3). It then sets out a framework under which the child's own input will inform the content of the "best interests" standard, with the weight accorded to these views increasing in relation to the child's developing maturity.
185 In S.K. v D.G., 2022 ABQB 425, Loparco J. considered the best interests criteria in the Alberta Family Law Act within the interpretive framework offered by the Convention. She stated at para. 257:
The proper question in my view is: Why should I not follow the child's wishes? If we accept that a child-centered approach in decisions of this nature is appropriate, the burden should not be on the child to prove why their views should be considered. The adults should have to demonstrate why what the child wants is not in their best interests. The international and domestic legal framework discussed above is not an abstract notion of justice for children. One must try to appreciate their lived experience through their lens, take their views seriously, and engage in a subjective consideration of what they consider important to them.
186 In S.S. v. R.S., 2021 ONSC 2137, Mandhane J. cites the Convention in calling for a "human rights-based approach" to parenting issues, seeing children as distinct from their parents in making decisions that profoundly affect them. Of course, that does not mean that youthful rights holders have a final say in all parenting issues, irrespective of their best interests. But their agency must be respected and considered in the mix of factors that make up the legal definition of best interests.
187 In Ontario (Children's Lawyer) v. Ontario (Information and Privacy Commissioner), 2018 ONCA 559, Benotto J.A., writing for the Court of Appeal for Ontario relied in part on Art. 12 of the Convention to explain why children must be involved in making the decisions which affect them.
99Clearly, the law has evolved in a manner which allows older children to have a voice, sometimes a say and even a veto over their parenting and therapeutic arrangements. Nonetheless, in his written submission, the Father asserted that I should not consider a VoC report because T’s views and preferences are not his own. His counsel wrote that that it was an “undisputed” fact that:
Prior to entering into the Final Consent Order [i.e. the Coats J. order], the OCL lawyer and clinician provided evidence that T’s voice was not independent and could not be relied on.
100During the course of oral argument, the Father’s counsel doubled down on this assertion, stating that before the final consent order of Coats J. of October 9, 2024 was made, it was “determined” that T’s views were not independent.
101The Mother’s counsel contested that characterization, stating that the OCL reported that T’s views were inconsistent rather than lacking in independence. Thus, the OCL did not take a position on his behalf.
102As a result of this dispute between counsel regarding the OCL’s view of the independence of T’s views, I asked them to provide me with a copy of the OCL affidavit, setting out its position regarding each of the parties’ children. That affidavit, sworn fifteen days in advance of the Coats J. Order by OCL clinician Roy Reid,12 offers a detailed recitation of Mr. Reid’s seven interviews with T and six interviews with J.
103Mr. Reid deposed that T offered varying views about the amount of time he wished to spend with his Father. T stated that he loved his father and believed that his father loved him. While T had stated to Mr. Reid that he wanted to resume parenting time with the Father, he had not done so at the time the affidavit was sworn.
104T presented to the OCL as conflicted about his relationship with the Father.
105Regarding the influence of the parties on their children, Mr. Reid deposed that both T and J reported feeling uncomfortable when the Father asked them about their preferred schedule. T also spoke of his Father’s attempts to influence him, including asking the child: “you want to live with me 50% of the time, don't you?”
106At paras. 71-72 of his affidavit, Mr. Reid deposed that T stated that he felt “compelled to share” with the OCL that he wanted a 50/50 parenting arrangement “as he feared potential repercussions from his father if he did not.” Mr. Reid added that “T became emotional while sharing this information. He explained once again that he felt pressured to tell the OCL he wanted to spend more time at his father's home.” T did not report a similar level of pressure from the Mother.
107As a result, Mr. Reid deposed that “[u]nfortunately, the OCL cannot take a position on T’s behalf, given that his views and preferences were not consistent during our meeting with him.”
108At no point in Mr. Reid’s eighteen-page affidavit did he refer to T’s views and preferences as lacking independence. Rather, it appeared that a great deal of pressure has been placed on T, pressure the child found difficult to cope with.
109Mr. Reid also found that J “consistently and clearly expressed his views and preferences without any indication of influence from third parties”.
110In sum, Mr. Reid did not say that the views and preferences of either child lacked independence, particularly from the Mother, despite the pressure which T reported feeling from his Father.
111Another statement made by the Father’s counsel during his submissions is also relevant to my consideration. He stated that both T and J had actually spent ten days with the Father over the recent (2026) March break. That assertion is not in evidence but was not denied on behalf of the Mother. If true, it further bespeaks the complexity of the situation in this family and raises questions as to what is actually occurring now, more than two years after the Award was made. That is another reason that the Court needs to hear from these children.
112In sum, T and J are old enough to have at least a say about their parenting and therapeutic arrangements, and they are sufficiently interested in the results of this motion to have their views and preferences as well as their narrative of relevant events placed before the court. I add, as stated above, that T will likely be an adult and J will be close to 16 years of age when the Father’s r. 1(8) motion is actually heard. All of those reasons speak to the need for the court to hear from those two children before it decides on this motion.
Conclusion
113For the reasons set out above, I find that I have the jurisdiction to order, on my own initiative, that a VoC report be prepared by a professional and provided to the court in advance of the hearing of the Father’s r. 1(8) motion. Such a report is necessary in order to ensure that all relevant evidence regarding T and J’s best interests are placed before the motion judge. Because of the breadth of the court’s jurisdiction based on the grounds set out above, I leave it to the parties to determine who should conduct the interviews of the children and report to the court.
114If the parties are not able to agree on the identity of the VoC professional within seven days of the release of these reasons, they shall arrange a Zoom conference with me to expeditiously make that determination. Prior to that conference, each party will provide a one-page written submission as to one professional they nominate to prepare the VoC report, along with their CV.
115In order to save time and further argument, the cost of the VoC report will initially be paid by the Mother, who first raised the issue of the VoC and argued in its favour. That payment will be subject to reallocation at the conclusion of the r. 1(8) motion.
116The balance of the r. 1(8) motion is adjourned sine die. Once the VoC report is completed, the parties will arrange to attend at triage court, on a date cleared by both counsel. Counsel for the Father shall file the requisition.
117The costs of this portion of the motion are reserved to the conclusion of the r. 1(8) motion.
________________________ Kurz J.
Date: May 6, 2026
Footnotes
- Citing Marshall v. Snow, 2022 ONSC 1687, at para. 101, and W.A.C. v. C.V.F., 2022 ONSC 2539, at para. 321.
- Citing the article by I. H. Jacob cited above and M.S. Dockray"The Inherent Jurisdiction to Regulate Civil Proceedings" (1997), 113 Law Q. Rev. 120 at 126.
- Toronto: Queen s Printer for Ontario, 2008 at 70.
- "The Duty to Manage a Criminal Trial" (Paper presented to the National Justice Institute, April 2009). Citations omitted.
- Citing Jacob, at 33.
- Park v. Lee (2009), 2009 ONCA 651, 98 O.R. (3d) 520, [2009] O.J. No. 3746 (C.A.), at p. 521 O.R.
- s. 16(1) of the Divorce Act and s. 24(1) of the Children’s Law Reform Act.
- Citing Wainwright v. Wainwright, 2012 ONSC 2686 at paras. 164-165, Duguay v. Thompson-Duguay, [2000] O.J. No. 1541 (S.C.J.) at para. 31, and Rosenburg v. Minster, 2014 ONSC 845, at paras. 76-77.
- Citing S. (R.D.), [1997] 3 S.C.R. 484, [1997] S.C.J. No. 84, per Cory J., at para. 134; Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] 2 S.C.R. 259, [2003] S.C.J. No. 50, at para. 77.
- Wagner C.J. concurring, both Martin J. and Wagner C.J. concurring with the majority
- Citing In re LC (Children), [2014] UKSC 1, [2014] A.C. 1038, at para. 87, per Lady Hale, concurring.
- Mr. Reid offered the social work assist to OCL counsel, (now Justice) Rahim (Sam) Misheal.