Here are a list of cases and case comments taken from my family Newsletter, Epstein's
This Week in Family Law published by eCarswell. I have selected cases that primarily
deal with children's issues and which I consider to be of some significance.
#1 - Baillie v. Middleton – Applicant's Request for a Custody/Access Assessment
CCDB#1286635 – 2012 Carswell Ont 8014
Ontario Superior Court of Justice – Pazaratz J.
This is a decision of Justice Pazaratz of the Ontario Superior Court of Justice. It is a detaile d
treatise on the issue of custody and access assessments pursuant to s.30 of the Children's Law
Reform Act.
The parties separated 4 years ago. They have been equally sharing time with their 6 year old
child. The parties were in the same locale but now the mother lives in Hamilton and the
father lives in Oakville and although the distance between the two is only about 30
kilometres, it has obviously caused a problem and there is now a custody dispute.
The mother seeks a custody assessment under s.30 and the father opposes an assessment and
this leaves Justice Pazaratz reviewing all of the major cases. He acknowledges that there are
two lines in the case law. Some Courts have interpreted s.30 liberally ordering assessments
whenever they thought it was in the best interests of the child. See Goldberg v. Goldberg
paragraph 17, and Parniak v. Carter. Justice Pazaratz notes that:
"With our increasingly holistic approach to the children's issues – children's
lawyers, alternative dispute resolution; mediation; parenting co-ordinators;
therapeutic access programs; etc – there is an understandable temptation to
summon every possible resource to repairing parent-child problems. Indeed,
there appears to be growing judicial awareness of the need for early
identification and special treatment for high conflict custody cases. In that
context, assessments are often requested – and sometimes ordered – largely in
the hope that early intervention by "an expert" may resolve the dispute, or at
least provide additional insight for the judge."
-2Justice Pazaratz went on to note, however, that:
"However, the prevailing – and in my view preferred – approach is reflected
in the long line of cases which follow Linton v. Clarke (1994) 10 R.F.L. (4 th)
92 (Ont. Divisional Cour ) in emphasizing the specific and narrow purpose of
s.30 assessments. Those cases summarize the law as follows:
Assessments are not to be ordered routinely. (Linton, supra).
Assessments should not be ordered routinely as a vehicle to promote
settlement of custody disputes. If the legislature had intended such broad
utilization of assessments, the legislation would have mandated assessments in
all cases. (Linton, supra).
A court should not order an assessment simply to obtain an apparently
impartial third party's opinion on what is in a child's best interests. (Stefureak
v. Chambers, 2004 CarswellOnt 4244 (SCJ)).
The use of an assessor's report simply because it might be helpful to the court
in dealing with custody and access issues is an overarching use of expert
evidence. (Fortier v. Oliver, 2003 CarswellOnt 5397 (SCJ)).
Assessments should be limited to cases in which there are clinical issues to be
determined, in order that such assessments can provide expert evidence on the
appropriate manner to address the emotional and psychological stresses
within the family unit in the final determination of custody (Linton, supra;
Archer v. Harries-Jones, 2008 CarswellOnt 6624 (OCJ); Menahem v.
Menahem, 2005 CarswellOnt 4988 (SCJ); Parkins v. Burnke 2006
CarswellOnt 4499 (SCJ)).
Clinical issues have been loosely defined as being "those behavioural or
psychological issues about which the average reasonable personal would need
assistance in understanding…not limited to psychiatric illness or serious
psychological impairment." (Tamm v. Oddy, 1998 CarswellOnt 4987 (Ont.
Master).
Allegations of parental alienation or an inexplicable rift between parent and
child may warrant a s.30 assessment (Stewart v. Stewart, 2006 CarswellOnt
8273 (SCJ)).
Age may not be important. Where the case involves a young child – whose
views and preferences may be given limited weight – and where the young
child is not experiencing behavioural difficulties, an assessment may not be
appropriate in the absence of significant clinical issues. (Glance v. Glance,
-32000 CarswellOnt 3169 (SCJ); Jarvis v. Landry, 2011 CarswellNS 169;
Parkins v. Burnke, supra).
General allegations of parental misbehaviour – without credible evidence to
substantiate those concerns – will not warrant an assessment, in the absence
of significant clinical issues. (Glance v. Glance, 2008 CarswellOnt 3995
(SCJ)).
Speculation that clinical issues might exist – or might arise (for example, in
the context of a mobility dispute) – are not sufficient to justify an assessment.
(Sheikh v. Sheikh, 2004 CarswellOnt 4395 (SCJ)).
In Korkola v. Korkola, 2007 CarswellOnt 1545 (SCJ) O'Neil J. refused to
order an assessment and quoted the annotation of MacLeod in Chapman v.
Chapman, 49 R.F.L. (2d) 47 Ont. Dist. Ct.) where he said:
As a note of caution, the court ought not to assume that every
assessment will raise new and pertinent evidence. The onus
should be on the moving party to show at least some reason for
the assessment. There should be some reason to expect that
the assessment will add to the evidence if, as our law provides,
the parties and child have a right to have the decision of custody
and access made by a judge, not an assessor. To order an
assessment merely because the parties dispute the issue would
render this section in effect mandatory. There must be some
evidence that the dispute is so intense as to prevent all the
relevant factors coming out, or that there appears to be a
parent/child problem that requires expert analysis and/or
explanation, or finally, that the assessment is necessary to allow
the parties to understand the needs of the child and the need for
co-operation.
Justice Pazaratz did not stop there. He went on to add:
The mere fact that the parties are engaged in a high-conflict custody dispute
does not, in itself, justify ordering an assessment. (Archer v. Harries-Jones,
supra).
Similarly, courts should resist any subtle influence created by the sheer
volume of material – the number of allegations and affidavits.
A dispute about joint custody versus sole custody is a question of fact. An
assessment – although perhaps helpful – is not required in order to make this
determination. (Archer v. Harries-Jones, supra).
-4The order must have a proper evidentiary basis and the paramount concern
must be the best interests of the child. (Tucker v. Tucker (1998), 154 D.L. R.
(4 th) 103 (Alta. C.A.)).
Expert evidence should not be routinely required to establish the best interests
of the child. (Young v. Young (1993) 49 R.F.L. (3d) 117 (SCC). Experts are
not always better able than parents to assess the needs of a child. In some
cases specific expertise may be required in relation to specific issues. But the
person involved in day-to-day care may often be best able to observe changes
in the behaviour, mood, attitude, and development of a child that could go
unnoticed by anyone else.
An assessor's expertise will be necessary only if clinical issues exist outside
the normal give-and-take of custody and access disputes decided on a daily
basis by the court. (Haggerty v. Haggerty, 2007 CarswellOnt 4151 (OCJ)).
A court should not delegate its duty to determine what parenting arrangement
is in a child's best interests to an assessor. (Johnson v. Cleroux, 2002
CarswellOnt 787 (Ont. CA)). An assessment – if appropriate – is merely one
factor for the court to consider.
Section 30 of the CLRA offers a legislative tool that, in a proper case, may
assist the court to make a decision. As such, s.30 should be given a broad
interpretation. However, this does not mean that the assessments should be
routinely ordered. An assessment should only be ordered where expert input
is reasonably necessary to assist the court in determining the issues that are
before the court. If, on all the evidence, the court is in a position to
reasonably decide the issues, without the assistance of an assessor, then the
assessment should not be ordered. (Kramer v. Kramer (2003) 36 R.F.L. (5 th)
381 (SCJ)).
The potential benefit of expert assistance in a particular dispute must be
weighed against the fact that assessments are expensive, intrusive, and timeconsuming. There must be evidence sufficient to satisfy the court that the
reason for requiring the assessment more than offset any harm that might be
incurred by ordering the assessment. (Butler v. Percy, 2009 CarswellOnt.
4523 (SCJ); Hodgson v. Hanson, 2000 CarswellOnt 3769 (OCJ); Johnstone v.
Brighton, 2004 CarswellOnt 3229 (SCJ)).
Judges must be mindful of the fact that by the time custody disputes come to
court, many children have already been exposed to a great deal of stress,
disruption, and exposure to professionals. An assessment is intrusive not only
for parents but also for children. In deciding whether to order an assessment,
courts must carefully consider whether an additional layer of investigation can
be justified, bearing in mind the potential negative impact of having children
-5further drawn into the court process. (Root v. Root, 2008 CarswellOnt 3995
(SCJ)). The assessment process is not benign. Where the advantages don't
outweigh the disadvantages – or where there really are no advantages – an
unwarranted assessment can actually make children's lives – and family
dynamics – worse.
Justice Pazaratz was also concerned with delay. He reminded us that the burden is on the
person requesting an assessment to establish a need in this particular case for the type of
information that only an expert can provide. He reminded us that an assessment is not a
fishing expedition and the parties should be reminded that at best an assessment will simply
provide more information not a guaranteed resolution to the case.
The fact that one party offers to pay for the assessment is not a deciding factor and if an
assessment is ordered, the Court should identify with specificity what clinical issues the
expert is to investigate and what type of information that the Court is looking for in order to
make a decision. The Court should consider whether the assessment should be conducted by
a psychiatrist, social worker or a psychologist and whether testing is expected to be part of
the process.
As I said in the beginning, this is a learned treatise on the issue of assessments in Ontario and
is equally applicable across Canada since all provinces have provisions in their children's
statutes for this kind of clinical intervention. In the end, Justice Pazaratz found that the
Applicant failed to establish the assessment should be ordered and the problems described by
the mother do not constitute clinical issues.
"Not every issue relating to a child's
development constitutes a clinical issue, particularly in the absence of any suggestion that
either parent is causing or compounding the child's difficulties."
The mother's Application for assessment was dismissed.
This is an extremely useful case to keep on hand when dealing with the issue of assessments,
particularly if one is opposing.
All of the leading cases are canvassed and this is a
comprehensive and learned judgment.
-6#2 - Marcy v. Belmore – When can a Court Act on an Interim Custody Assessment
CCDB#1294611 – 2012 Carswell Ont 10105
Ontario Superior Court of Justice – Pazaratz J.
Custody assessments or forms of assessment by private practitioners or the Office of the
Children's Lawyer generally produce a report while the custody and access battle is still
raging. The parties have to wait far too long for these kinds of reports and then invariably,
they have to wait for a trial date. Private assessors do not, as a general rule, do one case at a
time and I am sure all of them would think that that would be an impossible business model.
Since many assessors earn their living by doing custody assessments, they are not going to be
persuaded to change their ways. This is problematic because waiting for six months for an
assessor to complete a report, and sometimes even longer, is not in the best interests of the
children, dramatically contributes to the stress of the parties and usually costs more than the
parties can afford. However, all of this is compounded when the report is delivered and there
is no trial date on the immediate horizon. Should a court act on an interim assessment when
the assessor's report has not been tested by cross-examination and the parties have not had a
chance to give further evidence?
Justice Pazaratz takes on this interesting question in this case in a situation with school
resuming in September and a custody trial scheduled for November. He asks the question of
whether he should intervene and disturb a year old equal time sharing arrangement for nine
year old twins with a trial just three months away and when he has in hand a Section 112
report (that is a report from the Office of the Children's Lawyer in Ontario).
The father seeks immediate implementation of the Children's Lawyer's recommendations and
the mother opposes any change to the status quo pending the November trial. However, it is
notable and important that both parties take the position that the status quo is not working
and that each parent will be seeking sole custody at trial.
Justice Pazaratz is well aware that the law requires that the status quo generally be
maintained on an interim custody or access motion particularly if it has been in place for a
-7significant period of time. The court should generally not disrupt the status quo unless there
is a compelling reason to do so. See Dyment v. Dyment, 1969 CarswellOnt 978 (Ont. C.A.).
(Incidentally, this was the first case I ever worked on as an articling student!)
Justice Pazaratz also recognizes that an assessment may reveal or confirm the existence of an
urgent problem requiring immediate attention or correction. However, in his view, it will
only be in rare, exceptional cases where an assessor's recommendations should be acted upon
immediately before there is a full and thorough investigation provided by a trial. See Verma
v. Chander, 2009 CarswellOnt 1859 (O.C.J.) and Winn v. Winn, 2008 CarswellOnt 7116
(S.C.J.).
Since the court does not delegate decision making to an assessor, there should be no
presumption that the assessor's recommendations will or should inevitably prevail. See
Dunnett v. Punit, 2006 CarswellOnt 7259 (O.C.J.).
In Bos v. Bos, 2012 CarswellOnt 7442, where Justice Mitrow suggested that the court's
consideration should include the following:
"(a) How significant is the change being proposed as compared to the interim de jure
or de facto status quo?
(b)
What other evidence is before the court to support the change requested?
(c)
Is the court being asked to consider the entire report and recommendations, or
is it necessary for the purpose of the motion only to consider some aspects of the
report, including statements made by the children, observations made by the assessor
or any analysis contained in the report which may be of assistance to the motions
judge?
(d)
Are the portions of the recommendations which are sought to be relied on
contentious and, if so, has either party requested an opportunity to cross-examine the
assessor?"
-8See F.I. v. S.P.P. 2010 CarswellOnt 8025 (O.C.J.) at paragraph 13 where Justice Wolder
noted:
"I am persuaded that, although a motion for temporary relief has to be based on the
child's best interests, it should never disturb the existing status quo unless there exists
such urgency that it is necessary to do so, in the child's best interests."
Justice Pazaratz notes:
"There is broad agreement in the cases that motions for interim implementation of
assessment reports should be discouraged. Parties should not perceive the arrival of
an assessment report as creating an automatic strategic opportunity to secure a more
favourable status quo, heading into trial."
In the end after another careful review of the evidence and the problems with the current
status quo, Justice Pazaratz made an order changing the status quo but only slightly pending
trial. He also ordered conditions with respect to drug testing.
This is a useful review of the law on the use of assessments at the interim stage and all of the
important cases on this topic are gathered together in this interesting judgment.
#3 - Caterini v. Zaccaria – Child Support for Adult Estranged and Alienated Children
Caterini v. Zaccaria – 2010 Carswell Ont 6473 – Ontario Superior Court of Justice –
before the Honourable Justice Pazaratz.
In this lengthy decision, Justice Pazaratz is on a mission to make clear his views about a
continuing controversy. That is, whether the quality and nature of the relationship between
the adult children and the payor of support has a bearing on either the obligation or the
quantum of child support payable. Back in 2006, Ilana Zylberman and I wrote a paper
entitled "Support for Adult Children in Cases of Estrangement (The Parent as Wallet)". This
paper was, of course, about sometimes heard complaint by fathers, in particular, that they are
-9called upon to pay support for adult children but the children refuse to have anything to do
with them and they are not informed about their education status. That paper attempted to
canvass the current case law and look in some detail at how Courts across Canada have dealt
with the problem. The paper is outdated and does not reflect current jurisprudence. There
have been literally dozens of cases since in which the view of the Courts have been expanded
and refined about this important topic. Justice Pazaratz takes on the onerous task of sorting
through all of the modern case law in order to deal with the argument raised by the father in
this case that he should not have to support his three adult children who refuse to have
anything to do with him.
Justice Pazaratz relies upon a paper delivered at a Judge's conference in Toronto recently by
Justice Corbett which is unfortunately not available to the practicing Bar. It is, however,
available to Judges on the National Judicial Institute website. The paper is entitled "Child
Support for Estranged Adult Children" and Justice Corbett apparently came up with the
following summary:
"(a) Contrary to certain recent literature, there has not been “growing judicial
recognition” that the quality of the relationship should have a bearing on child
support.
(b) Courts have been willing to impose a few specific responsibilities on
adult support recipients, and may properly do so, but not conditions that
include maintaining a social relationship with a parent.
(c) The statutory basis for taking the quality of the child-parent relationship
into account is dubious.
(d) There is appellant authority permitting the court to place some weight on
the parent-child relationship, but that authority is more ambiguous than trial
and motions court decisions suggest.
- 10 (e) On the current state of the law, there seems to be a discretion to take this
factor into account, though few courts do, and fewer have found it a significant
factor in a support decision.
(f)
The better view is that if conduct is ever relevant, it should only be in
truly egregious cases of misconduct by a child against a parent."
If sub-paragraph "a" above is intended to refer to the paper written by Ms. Zylberman
and me, then we would agree, but in our defense, the paper is misquoted and we stand
by our comment that there is a growing recognition that children over the age of
majority for whom support is sought have some responsibilities.
Their
responsibilities may, however, not include having a relationship with the payor.
I think we are now at a point in the development in this area that most would agree
with paragraph (f) above that if conduct is relevant in these situations, it should only
be in truly egregious cases of misconduct by a child against a parent. See for example
Colford v. Colford, 2005 Carswell Ont 1527, in which Justice Goodman explores the
conduct between parent and child and does find an egregious case of misconduct by a
child who rejects a parent.
The newsletter is not the appropriate place to explore the differences between
estrangement and alienation and to have the full debate about the role of conduct.
Although we agree with Justice Pazaratz that, generally speaking, conduct has no
place in family law litigation, we are mindful of the fact that under Section 29 of the
Family Law Act, conduct has a role in spousal support with respect to quantum and
"conduct" in a sense is specifically explored when one is looking at the role that
parties play during marriage in order to identify whether compensatory support
should be paid.
However, we agree that a family law trial is no place to generally explore who did
what to whom and who is to blame. We agree that family law relationships are
complex and the search for fault is often meaningless. However, we do say this.
- 11 There will be cases where adult children have rejected a parent for no reason and
made it clear that they wish to have nothing to do with that parent. It may well be
because a parent in that case had an empty parental toolbox and was unable to
properly parent and that his or her conduct or misconduct caused an estrangement and
a breakdown of the relationship. On the other hand, there will also be cases where a
parent has consciously taken steps to alienate the child from the parent and that is the
cause for the breakdown of the relationship. It is not always to distinguish between
estrangement and alienation and there will be many cases when both are present.
What really distinguishes most of these cases is the element of need. If one reviews
the dozens of cases that have been reported about this topic, one sees a clear trend at
the end of the day and that is where there is need, Courts are extremely reluctant to
cut off or tamper with child support even in cases where the adult child wants nothing
to do with the payor. The Farden factors, although they are generally used in Western
Canada, make it clear that the breakdown of the relationship is but one factor in a host
of many and we think the emerging case law makes it clear that need is the most
significant factor of all.
In this case, there was a breakdown of the relationship but it appears from the reports
of the children's lawyer, many, many years ago, that this was a case of estrangement
not alienation and that the father could not reasonably argue that he had no role in the
breakdown of the relationship. In fact, in this case, he appears to have had a
fundamental role in the breakdown of the relationship, coupled with the fact that he
has done nothing since the breakdown of the relationship 10 years ago, to foster the
relationship.
The father did not put on a very good case in that regard and was likely hampered by
the fact that he acted for himself. In any event, we bring this case to your attention
because it is a good and useful review of the current law in this area. It is obvious
that Justice Pazaratz thinks that conduct has no role whatsoever in this kind of inquiry
and that he would prefer the philosophy that if you bring children into this world, you
- 12 are responsible for them until they are no longer children. There is much to be said
for that judicial philosophy and it holds sway in most cases. But, it is understandable
why fathers do not wish to be treated as a wallet and that would be so in an intact
family as well as a family that had broken down. Nevertheless, there are certain
realities in life and one of them is that child support is a mandatory obligation if the
children are dependant. There will, however, be the rare egregious case where the
Court will have to examine the roles of the parties and the breakdown of the
relationship. Given the wide use of emails these days, the search is not always
difficult and sometimes parties make their feelings absolutely clear and leave a
detailed paper trail.
This case also deals with the obligation to support adult children and the role of the
children in their post-secondary education. It reviews the principles set out in Lewi v.
Lewi and Rebenchuk v. Rebenchuk. This is a very useful case on the issue of support
for adult children. We will have more to say about it in an upcoming annotation in
the Reports of Family Law.
#4 Abbott v. Algarvio - Forum non conveniens
CCDB#1295579 – 2012 Carswell NS 600
Nova Scotia Supreme Court – Elizabeth Jollimore J.
We seem to be seeing a lot more forum conveniens cases of late. This is another one. The
issue is whether Nova Scotia or Ontario should hear the matter. The matter concerns the
custody of a three year old child who had lived in Ontario until the mother brought her to
Nova Scotia in June, 2012, and then applied for custody there.
She had some
uncomplimentary things to say about the father.
The father took advice from his Ontario lawyer and responded to the Nova Scotia
proceedings without starting Ontario proceedings. I think that was the wrong advice. I think
that the father should have started proceedings in Ontario immediately and then argued that
- 13 Nova Scotia did not have jurisdiction. It appears that in this case, the father actually attorned
to the Nova Scotia jurisdiction, but that is not fatal since it still requires the judge to
determine the forum conveniens. In this learned decision, Justice Jollimore discusses the
Court Jurisdiction and Proceedings Transfer Act, S.N.S. 2003 (2nd Sess.), c. 2 and Bouch v.
Penny, 2009 NSCA 80. In accordance with that statute and at common law, the court is
required to first determine whether it can assume jurisdiction and if the court decides that it
can assume jurisdiction because the legal test is met, then the court must consider whether it
ought to assume jurisdiction. The child was only present in Nova Scotia for a month when
he went there with his mother, but he was present in Nova Scotia when proceedings were
begun. There was no proceeding elsewhere and at common law, a court has jurisdiction in a
parenting application where the child is present, resident or domiciled in the jurisdiction
where the proceedings were begun. Justice Jollimore correctly concludes that she does have
jurisdiction, but goes on to consider whether she ought to decline it. When one balances the
factors here, there is really no contest. Most of the relevant witnesses are in Ontario, the
mother has only been out of Ontario with the child for a month, although the father has not
yet started proceedings on the advice of his lawyer in Ontario, it is clear that he intends to do
so. The matter can be resolved expeditiously in Ontario just as it could be in Nova Scotia.
There are no procedural advantages. In every way, this looks like forum shopping by the
mother and Justice Jollimore wasn't buying it. The best evidence to determine the custody
issue was clearly available in Ontario. There was no question that Ontario would resolve the
matter based on the best interests of the child and that is where the matter should be heard.
The Supreme Court of Canada in Club Resorts Limited v. Van Breda, (2012) S.C.C. 17 has
recently weighed in on the issue of forum non conveniens. In two separate cases, two
individuals were injured on vacation outside of Canada and brought actions in Ontario,
including a claim against the company incorporated in the Cayman Islands that managed the
hotels where the accident occurred.
The courts below held that the Ontario courts had jurisdiction with respect to the actions
against Club Resorts and also held that the Ontario court was clearly a more appropriate
- 14 forum. This is the authoritative judgment in Canada on forum non conveniens and it has
equal applicability to family law cases absent a statutory direction as to where an action must
be commenced and heard.
#5 W. (K.S.) v. W.(S.) – Appointing Private Counsel for Children
CCDB#1294145 – 2012 Carswell Ont 9992
Ontario Superior Court of Justice – Kiteley J.
This was a motion before a very experienced Family Law judge, Justice Fran Kiteley in
Toronto, about whether three children, ages 18, 15 and 12, could have private counsel for the
youngest two children.
The context of this motion is a motion to change by the father, who sought a change in
custody, access and the residential arrangements for the children, particularly because the
mother wished to move to Los Angeles from the Kawartha Lakes region. The Office of the
Children's Lawyer declined to become involved because of timing issues and the mother
sought an order in which she asked for an appointment of a private lawyer for the children.
That motion was strenuously opposed by the father. What makes this case unusual is that the
judge heard evidence of a tape recording between the 15 year old child, Daniel, and his
father. During that conversation, Daniel made it clear that he wanted an opportunity to be
heard and to express his views and preferences about the move to Los Angeles.
Justice Kiteley begins her analysis by considering that Section 64 of the Children's Law
Reform Act indicates that where possible, the court shall take into consideration the views
and preferences of the child.
Under Rule 4(7) of the Family Law Rules, the court may
authorize a lawyer to represent a child. Clearly, the court has jurisdiction to make an order
authorizing a lawyer to represent the children. Justice Kiteley makes no mention of the UN
Convention on the Rights of the Child, which was the focus of Justice Martin's considerable
comments in B. (J.G.) v. D. (L.G.), 2010 YKSC 44.
- 15 Counsel could not agree on what would be the role of the lawyer for the children and Justice
Kiteley did not want to make the children parties of the proceeding. Clearly, she was of
mind that the issue was really about providing the children with an opportunity to express
their views and preferences and that did not require the children to have the rights of a party.
Justice Kiteley opined:
"In this case, it is imperative that the role to be played by the lawyer be
narrowly defined and be confined to informing the court as to the views and
preferences of the child. I consider the role the lawyers will play to be similar
to that played by the OCL when it accepts a referral and provides to the court
the views and preferences of the child.
Because of the narrow focus of the role of the lawyers in this case, I note by
way of instructions to the lawyers that I am not expecting them to evaluate the
capacity of Daniel and Hannah to retain and instruct counsel because that is
not what either child is doing. Appointed counsel is not expected to advocate
a particular outcome based on instructions from the child. Appointed counsel
is expected to advise the court as to the child's views and preferences in
accordance with s. 64 of the Children's Law Reform Act. A formal evaluation
of capacity is not required."
Justice Kitely goes on to say that given that the OCL is unable to respond in a timely way,
there must be way to obtain views and preferences of the children in this case and there are
no other alternatives.
I find that statement puzzling. It does seem to me that the real issue in this case was about
ascertaining the views and preferences of the children, and certainly finding out whether
those views and wishes were being unduly influenced. It is for the trial judge to sort out
whether the wishes and preferences of the children conflict with their best interests.
- 16 There is some urgency in this case because the mother wishes to move before school starts in
September. But then again, a move from Ontario to Los Angeles is rarely granted on an
interim basis unless it would be clear that there was no triable issue.
I would have thought that if the point was to obtain the children's preferences that could be
done by appointing the family therapist or psychologist to obtain those wishes similar to how
a Voice of the Child Report is obtained in Western Canada. I am not sure at all how
appointing a lawyer for the children assists in that regard.
The court ordered the case initialized in order to protect the identity of the children and
appointed two lawyers one to present each child to determine and report to the court as to the
views and preferences of the children. Both the lawyers appointed have had experience
being on the children's lawyer panel of the Office of the Children's Lawyer, and thus have
some experience in interviewing children. Nevertheless, at the end of the day, they are
lawyers, although clearly lawyers with some training about the interviewing of children. I
remained puzzled as to why the parties did not choose to have an independent mental health
professional who is specifically trained to interview children to give the information that the
court is actually mandated to receive under the U.N. Convention and the Children's Law
Reform Act.
#6 M. (E.S.) v. B. (J.B.) - Mobility
CCDB #1291921 - 2012 Carswell NS 562
Nova Scotia Court of Appeal – Beveridge J.A., Farrar J.A., Fichaud J.A.
It is hard for me to not choose to comment on an appellate mobility case given my continual
rant about the need for legislative reform in this area. In this case, the Nova Scotia Court of
Appeal weighed in where the trial judge ordered a change in the primary care of the child
from the mother to the father in what started as a mobility case where the mother sought to
relocate to Alberta. The mother was pregnant with the child from her new partner, who lived
- 17 in Alberta. The husband/father responded by opposing the move and seeking a change in
custody.
At the conclusion of the trial the judge dismissed the application to relocate sighting
concerns about the loss of support from the extended family for the child, and found that it
was in her best interest to remain where she had access to both parents and the support of the
extended family. Primary care, however, was changed from the mother to the father.
The real issue for the Court of Appeal was the mother's argument that once the trial judge
rejected her application to relocate with the child, the trial judge could not go on to change
custody without finding evidence of another material change of circumstances. The Court of
Appeal unanimously disagrees.
In the view of the Court of Appeal, the trial judge had three potential custody options on the
table:
(a)
the mother relocates to Alberta with the child;
(b)
the mother stays in Nova Scotia and remains the primary parent;
(c)
the mother stays in Nova Scotia, but the father becomes the primary parent.
The Court of Appeal takes the position that once the mother puts the mobility issue in play,
that opens up all three possibilities and that seems to make eminently good sense. This
means, of course, that the court has the freedom to alter custody arrangements even when the
applicant parent does not end up relocating. The Court of Appeal goes through the various
cases that make this point clear and forcefully makes the argument that it should not be up to
the relocating parent to drive the litigation and dictate what the court can or cannot consider
when it is in the best interest of the child that are paramount. The Court of Appeal takes the
position that the trial judge can consider the matter afresh to examine the child's current
needs and decide which parent is better positioned to meet those needs once there has been a
demonstration of material change for the purposes of the relocation motion.
- 18 This is a stark warning particularly to counsel in Nova Scotia, but likely elsewhere since this
case appears to be well reasoned. Thus, this means that a person bringing an application for
relocation runs a double risk. Firstly, that the relocation application will be refused and
secondly, the trial judge will revisit the custodial arrangement.
It should in most cases be an illusory fear because if the move is refused, it is likely that the
status quo will simply continue. However, it is a risk to consider and of course for the person
opposing relocation it provides some ammunition for the parties to negotiate a resolution
rather than leaving it to the trial judge.
Another indication if we ever needed one, that we need some reform in this area. I note that
by March 1, 2013, British Columbia will have introduced a statute that begins to reform the
mobility issue. Let's hope and pray that other provinces and the federal government takes
notice.
#7 C. (B.D.) v. B. (B.J.) - Privacy Rights
CCDB #1292163 - 2012 Carswell Yukon 72
Yukon Territory Supreme Court – Veale J.
In Jones v. Tsige, 2012 ONCA we discussed the new tort of intrusion upon seclusion and the
right to the relatively nominal damages for a breach of a party's privacy rights. This decision
of Justice Veale of the Yukon Territory court is also technically about privacy rights, but in
particular the right of a father to have the court consider a transcript of a telephone recording
between the mother and the child.
There appears to be some evidence that the mother is an alienator and engaging in alienating
behaviour. The father is concerned about negative comments that the mother has been
making to the child during phone calls that she has with the child while the father is
exercising access. In order to establish the mother's negative influence on the child, the
father made audio and video recordings of the conversations all without the mother's
- 19 knowledge or consent. He then attempted to introduce them in evidence at the trial. There
appears to be no issue about whether the recordings and tape were genuine or altered. The
sole issue as framed by Justice Veale is whether a tape recording of a person without their
consent is admissible as evidence, in that it requires a determination of relevance and a
finding that its probative value outweighs its prejudicial effect.
The father relied on Matthews v. Matthews, 2007 BCSC 1825. The trial judge in that case
allowed in the wife's diary, even though it was an invasion of privacy, on the basis the
documents were relevant and the probative value outweighed the prejudicial effect. There is
a good review of this issue in that case.
Prejudice may be found if the evidence is of uncertain provenance incomplete or capable of
manipulation. That concern did not arise here. Prejudice may arise where the cost of
admitting the evidence is out of proportion to its value and that issue did not arise here. (See
Seddon v. Seddon, [1994] B.C.J. 1729 (S.C.) and Rawlek v. Rawlek, [2003] B.C.J. No. 2231
(S.C.)).
Prejudice may arise where the interception is a criminal offense and s.184 of the Criminal
Code makes it a criminal offense to intercept the private communication. The court noted
that in Matthews the diary would have been compellable as a document in an affidavit of
documents or at discovery.
Prejudice could arise by excluding the evidence. An example of that would be where the
evidence showed physical abuse of the child and would harm the administration of justice.
The court recognized that it is not desirable to encourage the surreptitious recording of
household conversations, particularly when it involves the children, and there is the argument
that s.8 of the Charter is engaged in that everyone has a right to be secure against
unreasonable search and seizure. See Seddon above and A.M. v. Ryan, [1997] 1 S.C.R. 157
at para. 22.
- 20 The court felt that the common law should reflect Charter values and reiterated Jones v.
Tsige.
Justice Veale concluded as follows:
"To conclude, the tape recoding of the mother and child phone conversation
without consent in this case is inadmissible, as its prejudicial effect exceeds its
probative value. it creates a disproportionate prejudice to the administration
of justice and the mother's and child's privacy rights."
With the greatest of respect to Justice Veale, in the particular circumstances of this case I
disagree. The affidavit of father filed in an attempt to get the material before the court
indicates very inappropriate behaviour on the part of the mother which could be said to be
psychologically damaging to the child. I appreciate that Justice Barrow in Seddon talks
about evidence that might show physical abuse, but surely we are at a stage in family law
where we understand that psychological abuse can be just as serious if not more serious than
physical abuse.
It is never a good idea to encourage parents to tape record, or video their children, and put
them in the middle of the dispute. The court should make it clear that this should not be
countenanced. However, it is also grossly inappropriate to use the telephone to undermine
the father's access visit and drive a wedge between the father and the child. In this case, I do
think that the probative value exceeded the prejudice, and while I recognize that it is a
criminal offense to intercept a conversation between third parties, I think the particular
circumstances of this case warranted the admission of the evidence.
Perhaps there was another way to have been able to present this evidence. If the wife was
examined on discovery and specifically asked questions about conversations she had with her
son, and asked specifically whether she said certain things and then denied it, the father
might have been in a stronger position to argue for the admissibility of the evidence in order
to impeach the credibility of the mother.
- 21 # 8 D. (I.) v. D. (P.R.A.) - Custody – Parental Alienation
CCDB #1291736 - 2012 Carswell Sask 478
Saskatchewan Court of Queen's Bench – Dufour J.
This is an elegantly written decision about potential parental alienation by Justice Dufour of
the Saskatchewan Court of Queen's Bench. It is a very good story. It tells the story of an
inflexible man who lacked significant parenting skills and who helped drive his two children
away from him. The two children are 12 and 15 at the time of the hearing and want little or
nothing to do with their father. The father blames the mother and has been schooled in the
literature underlying the theories of parental alienation syndrome. He considers that he is a
victim of that and the mother has taken every possible step to alienate the children from him.
He does not understand his own role in the issue. He suggests that there be a custody
reversal and the mother have supervised access.
Justice Dufour was buying none of it. He fully understood what he was dealing with and he
used plain and simple language to make it clear. Justice Dufour noted:
"Ian just does not get it.
He thinks that the proper response to Page's
relatively inconsequential improper conduct is to pull the girls away from her
– their psychologist parent – and stick them with a man they do not like. Ian
does not understand that my mandate is to do that which is in the best interests
of these children, not to advance that which he considers to be his "rights" as
a rejected parent. PAS is but one factor in the overall assessment of that
which is in children's best interests. It does not trump the others."
Justice Dufour recognized that the children are of such an age that forcing access is simply
not going to work in these circumstances. He did order that the children have access with
their father for two weekends in August, September and October with the oldest child and
two weekends a month with the youngest child up until June, 2013, and at the end of that
period each child could determine what kind of relationship they wanted to have with their
- 22 father. Put another way, Justice Dufour made it clear to the father that if he wanted a
relationship with the children he had to "woo" them.
As I said, in the beginning, this is a really good read and for those of us that toil in the
vineyards of family law, this is a must read about "the plum incident of '08" as canvassed by
the court. Just when you think you have heard it all in the family law field, you get a story
like this. I urge you to take a look at it.
#9 - Trisolino v. De Marzi - Mobility
CCDB #1290779 - 2012 Carswell Ont 9151
Ontario Superior Court of Justice – Penny J.
I report regularly on mobility cases because of my obsession with the Supreme Court of
Canada's refusal to revisit Gordon v. Goertz [1996], 134 D.L.R. (4th) 321 (S.C.C.), and the
obvious reluctance of the Federal Government and as well, I suppose, the Provincial
Governments to revisit this issue.
I understand that British Columbia will enac t new
legislation in March, 2013, which will create some order in the mobility dispute arena, and if
the province carries through with the legislation, it will be the first in Canada to enact
significant guidelines with respect to this thorny issue.
In this case in Ontario before Judge Penny in the Ontario Superior Court of Justice, the
mother sought to relocate to Rome, Italy with children 7 and 10 years old. Strangely enough
the parties were not yet separated but both asked the court to adjudicate the mo bility issue
and Justice Penny was free to do so under s.20 and 21 of the Children's Law Reform Act.
The mother was Italian and was a qualified lawyer in Italy and lived in Rome until 2007.
She had significant trouble learning English and was not able to get a meaningful job in
Ontario. She was not able to re-qualify as a lawyer without going back to first year of law
school and given her age and the responsibility of the children, this was not practical. On the
- 23 other hand, she could be a lawyer in Italy and earn a reasonable income and help support the
family.
The father does not want to return to Italy even though he had lived there for a time, had a
job there, and has extended family there. The father not only did not want to return to Italy,
but argued that his relationship with the children would be significantly disrupted. Judge
Penny recognized that of course it would, but if the mother was not permitted to take the
children back to Italy, there will be a custody dispute in Ontario, and if the mother is
unsuccessful she will be stuck in Toronto or its environs without a reasonable chance to earn
an income and with a husband who cannot likely support her. This was not a close call.
Justice Penny found that the wife was terribly unhappy and unfulfilled in Ontario, and more
importantly, there was nothing preventing the husband from moving to Italy to be close to his
children. The mother's desire to move to Italy was not motivated by a desire to interrupt or
detract from the children's relationship with the father. Judge Penny found that there was
ample evidence to support the conclusion that the mother's desire to return to Italy is
"multifaceted in nature, not merely self interested, and brings with it significant associated
positive effects for the children's best interests, including being cared for by a well
functioning and happy, not to mention, financially and professional better off primary care
giver." Judge Penny recognizes that these kinds of moves always disrupt a relationship
between the children left behind and conflicts somewhat with the maximum contact
principle. However, she quoted professor McLeod who noted, "families move all the time
and children adjust".
Both parties are fluent in Italian and both parties have Italian
passports, and this is one of the best examples I have seen of late where the court really
asked itself the question "why can't the father move to accommodate the mother and
children?" The answer in this case was that clearly he could do so. One does not see that
very often but in the circumstances of this case, and given the mother's somewhat bereft
financial position in Ontario, the result was a foregone conclusion.
- 24 #10 - T.(N.) v P.(W.) – Mobility
CCDB# 1191923 – 2011 Carswell Nfld 213
Newfoundland and Labrador Court of Appeal - B.G. Welsh J.A., M.F. Harrington J.A.,
M.H. Rowe J. A.
Mobility cases continue to bedevil the courts and inconsistency in these cases reins supreme
from sea to shining sea.
In this case, the parties separated and the 10 year old child was primarily living with the
mother. She sought to move from Newfoundland to Halifax and, of course, wanted to take
the child with her. The trial judge found that it was in the best interests of the child to remain
with his father in St. John's and thus the mother appealed.
It is noteworthy that since the parties separated, they have been locked in a high conflict
battle since separation, but notwithstanding that, the parties have a joint custody
arrangement. The mother decided to move to Halifax for personal and career reasons and
thus the parties engaged in an eight day trial. They, of course, spent most of that time
reciting the history of misconduct, each to the other. Nevertheless, the trial judge found that
both parties were fit to be able to look after the child. The trial judge considered that both
parents had different parenting skills, but were, in fact, good parents. The trial judge was
impressed with the connections with the father's family as well as the friends that the child
has in St. John's.
The appeal was apparently a repetition of the trial with both parties repeating the "litany of
alleged misdeeds by each other". The Court of Appeal found that the trial judge dealt with
the evidence thoroughly and did not make any errors in law.
The trial judge made an interesting comment. He said:
"It is, of course, an old fashioned notion that a parent or parents must sacrifice all in
their lives for the benefit of their children. In my mind, failure to do so does not
render such a parent inadequate. However, there is a large qualitative difference
between balancing the needs of the parent and the child on the one hand and
essentially possibly abandoning the child to the care of a father whom she regards as
- 25 wholly inadequate as a parent on the other hand [which] causes me some concern as
to the true depth of her commitment to that child."
The Court of Appeal correctly noted that this was inappropriate. It is a variation on the
classic "double bind" noted by the Alberta Court of Appeal in Spencer v Spencer, 2005
ABCA 262 (Alta.C.A.).
This is akin to theorizing about the answer to the question posed to a moving parent. "Will
you move without the child?" It is clear that this question is inappropriate and the trial
judge's comment above is just another way of asking the same question and is inappropriate.
However, while the Court of Appeal recognized that the judge should not have gone down
that road, the error was not a material one and could not change the outcome.
This case, of course, turns on its facts as all mobility cases do. The problem with analysing it
is that, simply, the same fact scenario could result in the mother being allowed to move if it
were a different judge, different city, different province or a different court.
There is not enough factual content in the appeal to do a careful analysis of both side's
position. The trial judgment is at 2010 CarswellNfld 245 for those that have a greater
interest in this topic. I am sure that counsel for the mother thought that she had an excellent
case for relocation and probably felt that way on the appeal as well. All that glistens is not
gold and good stories do not make for successful mobility applications, at least not all the
time.
#11 - Adams v. Nobili – Interim Motion: Should Court Order an Assessment in Custody
Dispute?
CCDB#1198091 – 2011 Carswell Ont 8389
Ontario Superior Court of Justice – Herman J.
This is a decision of Justice Herman of the Ontario Superior Court of Justice on an interim
motion principally about whether the court should order an assessment in a custody dispute
over a 15 month old child. The parties agreed to an order for interim joint custody but the
- 26 father sought to have the child on a week on week off basis. The mother's position was that
the status quo should continue whereby the father sees the child every weekend from
Saturday morning to Sunday evening or perhaps extending the weekend to begin on a Friday.
The facts are very unusual. The parties had been previously married and divorced. The
father remarried but was unable to conceive a child with his new wife. He approached his
former wife, the mother, about having a child with her and she agreed to the proposal. Thus
the father's sperm and the egg of a third party were implanted in the mother on the
understanding that the parties agreed that they would raise the child together.
This
demonstrates the adage that one of the advantages of being a family law lawyer is you hear
stories that could not possibly be made up. This arrangement was a recipe for serious
trouble.
The child was born in 2010 and it looks like the mother and father began to live together
with the child. The mother then left the father because she learned that he had resumed his
relationship with his wife. Quelle surprise! The wife of the father has deposed that she is
willing to assist the father with the child's care. Another quelle surprise!
The father put before Justice Herman several cases where the court ordered a week on week
off schedule such as Winn v. Winn, [2009] O.J. No. 5913 (S.C.J.) and Montoya v. Bipatnath,
[2006] O.J. No. 4086 (S.C.J.), Peters v. Tetley, [2007] O.J. No. 4958 (O.C.J.). In those three
cases the children were much older with the exception of Peters v. Tetley where one of the
children was two but that order was made after a trial and with the assistance of considerable
evidence including a report of the O.C.L. As Justice Herman noted the decision in those
cases are all very fact specific.
Each party complained about the other's parenting style and approach but Justice Herman
dismissed it. Justice Herman looks at two principles at play here. The status quo should
generally not be disturbed on an interim motion but the parent who unilaterally creates the
status quo should not benefit from it. The father argues that the parent who leaves the home
with the child without the other parent's consent should not be able to obtain an advantage by
- 27 unilaterally creating the status quo. See Lisanti v. Lisanti, [1990] O.J. No. 3091 (Prov.Ct.–
Fam. Div.); Roy v. Rilstone, [2000] O.J. No. 2502 (S.C.J.). The mother responded by saying
she left the home because the father has resumed a relationship with his wife.
Justice Herman points out that the child has been with the mother since birth but the status
quo prior to the mother leaving was that the child lived with both parents. Since last
December the child has only been with the father on weekends.
The court finds no
significant parenting concerns and notes that the parents agreed that they would raise the
child together. Justice Herman says, "I see no reason in principal or in the evidence for
concluding that the father should not be ale to share parenting with the mother on a 50/50
basis."
Justice Herman eventually concludes that it is in the child's best interests to have a transition
to shared parenting occur on a graduated basis and accordingly, the father's access with the
child will be increased to two consecutive nights a week and then in two months to three
consecutive nights a week and then ultimately to have a settlement conference in the late fall
or early winter to review how the schedule is working and to discuss the schedule for shared
50/50 parenting. If they are unable to agree, the trial should be scheduled to take place as
soon as possible.
The father proposed that there be an assessment under s.30 of the Children's Law Reform Act
and thus Justice Herman reviews Linton v. Clarke (1994), 76 O.A.C. (Div. Ct.).
Justice Herman was not inclined to order an assessment.
There was no evidence of
significant problems either with the child, the parents' parenting, or their ability to
communicate with each other and thus there was insufficient evidence to provide a basis for
ordering an assessment report.
One needs to appreciate that this is a result of an interim motion and not a trial. There is no
evidence canvassed in the reasons about the ability of this 15 month old child to handle the
kind of transitions suggested by the court. There is no discussion of theory or recent and
important literature about age appropriate access. For a review of recent case law and the
- 28 literature see "Age Appropriate Access by Melanie Kraft at the 6 Minute Family Lawyer –
Law Society of Upper Canada December 1, 2011."
My review of the literature would indicate very little mental health professional support for a
week on week off arrangement for a 15 month old child. We do not have evidence of the
father's work schedule or the mother's for that matter. We do not know what kind of time the
child has been spending with both parents other than the bare bones schedule set out in the
reasons. We do not know about the child's relationship if any with the father's wife. What
we do know is that it appears that both the mother and the father were desperate to have a
child even by significantly unconventional means for very young children. I commend Ms.
Kraft's paper to you on this issue and express grave doubts about a 50:50 arrangement for a
15 month old child.
#12 - Dovigi v. Razi – Custody Jurisdiction
CCDB#1282614 – 2012 Carswell Ont 6704
Ontario Court of Appeal – Cronk, J.A., Epstein J.A., Jurianz J.A.
This is case had the potential to be ground breaking and could have established a very
significant precedent with respect to custody jurisdiction in cases where the child was born
after the parties separated and in a different jurisdiction in which the parties had cohabited.
A very experienced family law judge, Justice Kiteley found that Ontario had jurisdiction over
father's application for temporary custody in circumstances where the parties separated when
the mother was seven months pregnant. She immediately left Ontario for California where
the child was born some two months later. She remained in California and indicated that she
intended to become a permanent resident there.
The child therefore has never been
physically present in Ontario. The mother began proceedings in California immediately and
the California court took jurisdiction. In the meantime, Justice Kiteley found as a fact that
the mother did not form an intention to live in California until after the child was born and
that by exercising the Courts parens patriae power to protect the child, the Ontario court
- 29 could assume jurisdiction. The Court of Appeal decisively disagreed. The Court of Appeal
noted that the motion's court judge said that to decline to take jurisdiction in these
circumstances would be to encourage a pregnant mother to depart from the original
jurisdiction in circumstances that are analogous to an abduction. That statement, very
respectfully, comes very close to asserting that a fetus may have rights or at least the father
may have rights with respecting the fetus. Although everyone was careful, both below and at
the Court of Appeal to stay away from that discussion, there is no question that had the Court
of Appeal agreed with the motion's court judge, it would have fundamentally changed the
law both about habitual residence and the appropriate circumstances in which a court can
take jurisdiction in a custody matter.
Clearly, the court did not have jurisdiction under the Children's Law Reform Act, because the
child was not physically present in Ontario at the commencement of the application. The
child did not fall with the ambit of the definition of habitually resident under the statute. The
motion's court judge therefore found that this constituted a gap in the statute since the child
appeared to have no habitual residence under the statute. The parties had a real and
substantial connection with Ontario and the mother's proceedings in California were
commenced only after the father's application was filed and served in Ontario. The motion's
court judge therefore found it necessary to invoke the parens patriae jurisdiction to deal with
this uncontemplated situation because it was necessary to do so for the protection of the
child.
The Court of Appeal gave this argument very short shrift. They reminded us that under the
Children's Law Reform Act there are limited ways in which an Ontario court can assume
jurisdiction with respect to custody including exercising its parens patriae jurisdiction which
is specifically preserved by s.69 of the Children's Law Reform Act.
The Court of Appeal found that the motion's court judge was incorrect in concluding
that there was a legislative gap.
- 30 "The fact that circumstances fall outside a definition may be a matter of
legislative design rather than legislative oversight discerning legislative
design requires a close consideration of the legislation."
The court reviewed the meaning of habitual residence and clearly and correctly the child was
not habitually resident in Ontario. While the child did not fit within that ambit, that does not
necessarily mean there is a legislative gap. The parens patriae jurisdiction is founded on the
need to protect those who cannot care for themselves, and in this case there was absolutely
no evidence that was necessary for the Ontario court to act for the protection of the child.
The child was in California. The California court has taken jurisdiction over the custody
issues and California laws and procedures are similar to those in Ontario.
The Court of Appeal was careful to point out that there may be circumstances under which a
child may be in need of the court's protection even when the other side has comparable laws.
However, this case did not give rise to those concerns.
The Court of Appeal also found that the motion's court judge erred in moving to "protect the
expectation that the child will be parented in Ontario". In doing so the Court of Appeal
noted that where it is in the best interests of the child to be parented must be decided by the
court with jurisdiction. The outcome of the inquiry into best interest does not provide a basis
for taking jurisdiction.
The court went on to look at the findings of fact made by the motion's court judge and
pointed out that she had made findings of fact in the face of conflicting evidence in the
affidavits. The affidavits were not cross examined upon. The Court of Appeal repeated what
it has said countless times and in Ierullo v. Ierullo, 2006 CarswellOnt 5887 (Ont. C.A.) that
motion's court judges ought not to decide issues of fact based on conflicting affidavits.
The thrust of the argument below was there was a legislative gap in not making sure that
pregnant women could not run off and have their children in another jurisdiction and then
avoid the Ontario courts.
- 31 This seems to me to be an extremely difficult argument. First of all, there is no epidemic of
pregnant woman running out of Ontario to seek the protection of other courts, and of course
it is open to the father to pursue his remedies in the California courts. There may be
circumstances where the mother might run to a different jurisdiction that did not decide
matters of custody based on the best interests of the children, and might not afford one or
both of the parties due process as we understand it. Accordingly, whether the court should
exercise their parens patriae jurisdiction, in the particular circumstances of the case, will
have to await a more appropriate case.
In effect, the motion's court judge's decision would have put restrictions on pregnant women
as to where they could go to have their children. That is contrary to some well settled
principles of law in this country and it is not surprising that the Court of Appeal chose not to
go down that path.
#13 - Wainwright v. Wainwright – Role of mediation/arbitration and screening
requirements
CCDB# 1243410 – 2012 Carswell Ont 5429
Ontario Superior Court of Justice – Mary Jo M. Nolan J.
This is a fascinating case essentially about the role of mediation/arbitration and the screening
requirements which arise out of the Ontario Statute and amendments that were promulgated
in 2006/2007 and formally introduced rules with respect to screening before mediation and
arbitration takes place. Although different people will have different views about this
screening legislation it is my view that the statutory requirement for screening arose for two
reasons. The first to make sure that mediators address the potential power imbalances before
they embarked upon mediation and secondly to ensure that Sharia law did not encroach upon
Ontario law in the resolution of disputes for those in the Islamic community. It is likely the
second reason that led the legislature to provide that there be screening even in cases where
there was to be arbitration. That is passing strange since arbitrators fulfill the role of a judge
- 32 and judges are not required to screen. In addition, there is the problem that if arbitrators read
screening reports or get involved in screening they may receive information to which they
were not otherwise entitled. A judge decides a case based on the evidence before him and
her and an arbitrator does likewise. The screening provision should not have been inserted
into the arbitration provisions but it is understandable why screening provisions were
required for mediation.
Much has been written about screening and the Ontario Association for Family Mediation
has a specific policy on abuse and discusses how parties must be screened before they
embark upon mediation. This is all discussed in detail in this learned and comprehensive
judgment.
Trying to précis what Justice Nolan has to say about mediation and the screening process
could not possibly do justice to her comprehensive review.
However, in essence, Justice Nolan notes that screening is a long established first step in
mediation and that Ontario's accredited family mediators are required to do it by their
standards of practice. It is however very new to arbitration.
The parties in this case had signed a settlement agreement including clauses that they would
mediate and arbitrate future disputes. The issue for Justice Nolan was, in the resolution of
this custody dispute, whether those provisions should be carried forward into the court's final
order.
Justice Nolan notes that a court can refuse to give judicial approval to a
mediation/arbitration clause in the parties' minutes of settlement if it is determined that such
a clause would risk the best interests of the child. In this case, there really is an issue about
whether the mother was freely engaged in mediation and whether the screener properly dealt
with a potential power imbalance. Of note however is the fact that both parties had
experienced family law counsel and it may well be argued that notwithstanding the difficult
relationship between the parties, the lawyers were in a position to adequately deal with the
power imbalance. In the end, Justice Nolan decided that the parties could mediate and
arbitrate in the future but only if there was a proper intake for mediation in accordance with
- 33 Rule 17(8)(b)(iii) of the Family Law Rules which include screening in accordance with the
procedures approved by the OAFM and the Ontario Ministry of the Attorney General.
This decision invites a more comprehensive paper and discussion about where we are going
with this screening issue. Mediation and arbitration are becoming significantly more popular
in Ontario and other parts of Canada that have appropriate statutory regimes for such
processes. British Columbia in accordance with its White Paper is in the midst of drafting
appropriate mediation and arbitration legislation.
It is highly questionable as to whether screening ought to be required for those embarking
upon arbitration. It is necessary for those engaging in mediation. The real question for me is
how far screening must be taken. There are no regulations at the moment that require that
screeners be specifically qualified to screen for domestic violence and power imbalances.
There are courses that can be taken and there are comprehensive screening forms that can be
used but the vast majority of mediators, particularly those that are lawyers, do not use them.
Family law professionals, mental health professionals who are mediators and accredited
family mediators have different views as to the extent of screening and most family lawyers
believe that their presence addresses potential violence and power imbalance issues. Most
family lawyers believe that parties who cannot confront each other and deal with each other
can successfully mediate provided they are kept apart by the mediator. Again, this is not the
place for that very interesting debate. At the moment there are clearly at least two schools of
thought as to the extent of screening and this interesting judgment invites further discussion
on this important topic.