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Involving the Office of the Children’s Lawyer

By Lisa Gelman

An Ontario court recently considered a situation where the parties’ custody and access proceedings were adjourned so that the Office of the Children’s Lawyer (OCL) could become involved and potentially conduct an investigation under s. 112 of the Courts of Justice Act (CJA).

What happened?

The parties were married in July 2013 and separated in October 2016. They had one child, born Feb. 9, 2015. The relationship between the parties was fraught with allegations of abuse and ongoing conflict.

Since the parties’ separation, the child had resided with the mother. At first, the mother and the child lived in the former matrimonial home. Later on, the mother moved to an apartment, but no evidence was placed before the court about this residence or the neighbourhood that the child would be living in.

In Dec. 2016, an interim without prejudice order was made, which provided that the principal care of the child was to be with the mother. The father was awarded access to the child on Saturdays from 4 p.m. until Sundays at 4 p.m.

In Jan. 2017, a case conference was held. At the case conference, the judge ordered that the OCL was to consider becoming involved in this matter because of concerns regarding the lack of evidence relating to the mother’s living arrangements and issues concerning her mental health. The judge also strongly recommended that the OCL conduct a s. 112 investigation pursuant to the CJA (see below for a description of a s. 112 report).

The mother refused to complete and forward the intake form as ordered. As a result, the OCL declined to become involved.

Section 112 of the CJA

The Ministry of Attorney General explains that, sometimes, the court will make an order requesting that the OCL get involved to help the court better understand the issues between the parties and the needs of the child (or children) involved.

Specifically, a report pursuant to s. 112 of the CJA is meant to assist the court in determining what custody and access arrangements are in the interests of the child in question. The report is produced after a clinician has gathered information about each party and the child named on the order. The clinician will then usually – but not always – make recommendations regarding custody and access. These recommendations will highlight factors for the judge to consider when determining what would be in the best interests of the child.

The court’s decision

The court commented that the mother’s refusal (and her counsel’s submissions) demonstrated a lack of knowledge and respect for the court’s orders and the process of getting the OCL involved when a judge makes a determination that such input is needed.

The court found drew an adverse (i.e negative) inference that the mother did not want a s. 112 investigation, as it would not be advantageous to her relative to the custodial issues. It noted that her conduct had placed the court in a position where it was lacking in material evidence that was necessary to make a proper determination of what was in the best interests of the child.

The court concluded that the vast majority of evidence of the mother related to mere allegations of past abuse that were not relevant to the present issues. It noted concern about the mother’s mental health and about her and the child’s daily activities. It also remarked that, sadly, there was minimal evidence about the child’s circumstances, the child’s needs and how those needs were being met.

The court stated:

Making a determination about the best interest of a child is one of the most important decisions that can be made by a judge. An order for custody shapes the life of a very young child and has long lasting impacts on their future wellbeing. I am not prepared to allow this matter to proceed in a manner by which a party can block the potential for a court to receive potential evidence the court has determined is necessary.

Given the weight of such an order, then, and in light of the fact that the court had not obtained the evidence it needed, the court adjourned the issue of custody and access, and ordered both parties to complete and forward their intake form to the OCL within 10 days.

Lessons learned

Sometimes the court will make an order to get the OCL involved in a custody/access matter so that it can better determine what’s in the best interests of the child.

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