“In the Orders under Appeal, the appellant was given supervised access to the children only if she “provides a psychiatric report…satisfactory to [the respondent]”. The appellant submits that the determination of access is a judicial function and was improperly delegated.
I agree.
In M.(C.A.) v. M.(D.) (2003), 2003 CanLII 18880 (ON CA), 67 O.R. (3d) 181 (C.A.), this court emphatically stated that the court cannot delegate to a third party its power to determine access. At paras. 20-24 of M.(C.A.), Rosenberg J.A., writing for the court, gives four reasons why delegation is improper. All four reasons apply in the present case.
First, it is unclear what the psychiatric report would have to demonstrate in order for the appellant to have access to the children. Second, the appellant’s mental health is not the only consideration as to whether she should have access. If access is in the children’s best interests, should it be denied absent the report? And if access is not in their best interests, should a report entitle the appellant to have access? Third, there is no statutory authority to delegate decision-making as to access to a third party. Fourth, such a delegation improperly fetters the appellant’s access to the court on the question of access.”