Month: August 2021

“Counsel for the Applicant took the position that the court does not have jurisdiction to make an order for a Voice of the Child Report unless the parties have consented.

 In Svirsky v. Svirsky 2013 ONSC 5564 (CanLII), I observed in paragraph 21 that there was no statutory authority to appoint a person to prepare a Voice of the Child Report.  In that case, the jurisdiction to do so was not argued because the parties had agreed and the only issue was the selection of the expert.  I am satisfied that there is regulatory authority, namely that rule 20.1(3) gives the court the authority to appoint an expert to inquire into and report on a question of fact relevant to an issue in the case, namely whether either or both children have any views or preferences as to increasing the time that they see their father.”

         Canepa v. Canepa, 2018 ONSC 5154 (CanLII) at 17-18

“If the court determines that the child was habitually resident in the country of the applicant at the time of the alleged wrongful removal or retention, Article 12 of the Hague Convention provides that the court “shall order the return of the child.” However, Articles 12, 13, and 20 also outline five exceptions to this obligation to return the child. These exceptions come into play only after habitual residence is determined: see Balev, at para. 66. In Balev, at para. 29, the Supreme Court summarized these exceptions as follows:

1)  The parent seeking return was not exercising custody or consented to the removal or retention (Article 13(a));

2)  There is grave risk that return would expose the child to physical or psychological harm or place the child in an intolerable situation (Article 13(b));

3)  The child of sufficient age and maturity objects to being returned (Article 13(2));

4)  The return of the child would not be permitted by fundamental human rights and fundamental freedoms of the requested state (Article 20); and,

5)  The application was brought one year or more from the date of wrongful removal or retention, and the judge determines the child is settled in the new environment (Article 12).

Because the arguments in this case touched on the third and fifth exceptions, namely the child’s objections and the “settled in” exception, I will provide further comment on these two exceptions.

(i)         The “Settled In” Exception

First, Article 12 provides the “settled in” exception. As the Supreme Court held in Balev, at para. 66, its function is to provide a “limited exception” to the court’s obligation to return wrongfully removed or retained children to their habitual residences. The court’s discretion to refuse return under the “settled in” exception under Article 12 becomes available if the following two conditions are met:

1) The applicant has commenced return proceedings one year or more following the date of the wrongful removal or retention; and,

2) It is demonstrated that the child is now settled in its new environment.

Under the “settled in” exception, the court must assess the children’s connection to the country they are in at the time of the hearing of the application, not immediately before the date of wrongful removal or retention: Balev, at para. 67. This difference in timing can be significant. The “settled in” exception thus accounts for the possibility that a child will develop closer ties to the jurisdiction in which the child has been wrongfully removed or retained in the period of time that follows the date of the wrongful removal or retention: Balev, at para. 67. As the Supreme Court stated in Balev, at para. 66, “It may be that on the hybrid approach habitual residence favours return of the child, but that the one-year period and settling-in indicate that the child should not be uprooted and returned to his or her place of habitual residence.””

         Ludwig v. Ludwig, 2019 ONCA 680 (CanLII) at 34-37

“That said, I will address the other arguments raised by the father. On this motion, the father claims that the mother’s decision to enrol the daughter in a Hebrew school is a material change in circumstances. This position essentially argues that the mother’s exercise of the decision-making authority granted to her by the court amounts to a material change in circumstances. That cannot be.

Parents in Ontario have an abundance of educational options for their children. There are four public school boards in each geographic region of the province (English Public, English Catholic, French Public and French Catholic). Many of those boards offer specialized programs such as French immersion and arts-based schools. Many school boards have an optional attendance policy that permits students to attend schools outside of the school designated to serve their area of residence. Parents can also choose among a plethora of private schools, which may focus on religion, culture, language, athletics, or specific educational programs, philosophies or approaches.

The debate over the relative merits of secular versus religious school, or public versus private school, predates Confederation in this province, and continues to this day: see for example: Reference Re Bill 30, An Act to amend the Education Act (Ont.), 1987 CanLII 65 (SCC), [1987] 1 S.C.R. 1148 and Adler v. Ontario, [1996] 3 SCR 609, 1996 CanLII 148 (SCC).These are issues on which experts and reasonable people disagree.

A parent’s choice of school may be influenced by a myriad of legitimate factors, including location, the parent’s general or pedagogical philosophy or approach to education, financial resources, availability of extra-curricular activities, and perceived or real academic standing or program distinctions among schools. As a child ages, the views and interests of the child may become a relevant consideration. If there is more than one child, an effort is often made to send siblings to the same school. No one factor is overriding or paramount.

Faced with these multiple options and a complex range of variables, there is no “right” or “wrong” school choice. All of the choices listed above fall within a range of reasonable alternatives. All of the choices listed above meet the compulsory attendance requirements of s. 21 of the Education Act, R.S.O. 1990, c. E.2. Any one of these choices could be defended as being in the best interests of the child. Parents in Ontario have the legal right to make that choice for their minor children, and, where one parent is given decision-making authority by the court, that parent has the legal right to make that choice.

Judicial micro-management of parental choices that fall within a range of reasonable alternatives will only serve to exacerbate parental conflict and invite the very kind of unnecessary litigation the trial judge was seeking to avoid when he granted decision-making authority to the mother.

Given the complex range of variables that go into parental school choice, a court is in no better position than a parent to make the “right” or “best” decision for any child. As such, a court should not interfere with the choice of a parent with decision-making authority over education unless the impugned decision will significantly disrupt the other parent’s access, or there is expert evidence that the impugned decision does not fall within the range of reasonable alternatives. No such evidence was presented on this motion.”

         Brown v. Kagan (Brown), 2019 ONSC 5033 (CanLII) at 76-82

“Caution should be exercised when making a temporary Order dealing with custody where the untested evidence about children’s best interests is conflicting. In McPhail v. McPhail, 2018 ONSC 735, 2018 CarswellOnt 1013, at para. 21, Lacelle J. observed,

The case law has also sounded a note of caution about making determinations about custody and access on an interim basis when the evidentiary record consists of competing, contradictory and untested affidavit evidence. There is a general recognition that in these circumstances trial judges will be in a better position to fully investigate the conflicting positions and make findings of credibility and fact to determine what regime is in a child’s best interests: see for instance Davies v. Davies, 2017 ONSC 3667 (Ont. S.C.J.) at para. 14; Rifai v. Green at para. 16; Cosentino v. Cosentino, 2016 ONSC 5621 (Ont. S.C.J.) at para. 15; Bruneau v. Wark, [2014] O.J. No. 4578 (Ont. S.C.J.); and Collins v. Collins, [2011] O.J. No. 2085 (Ont. S.C.J.).

The caution is warranted because a temporary Order may not infrequently form the basis of a final Order, especially after a significant passage of time: Rifai v. Green, 2014 ONSC 1377 (Ont. S.C.), at para. 17. In Batsinda v. Batsinda, 2013 ONSC 7869 (CanLII) at para. 22, Chappel J. commented that:

…[o]ften, the courts will conclude that a temporary custody order dealing with all of the incidents of custody is not necessary at the interim stage, and will simply address primary residence, timesharing and some of the most critical incidents of custody such as school issues and routine and emergency medical care.”

Young v. Young, 2020 ONSC 5107 (CanLII) at 21-22

“The factors which should guide the court in assessing whether there were disclosure defects during the negotiation of a domestic contract that undermined the legitimacy of the bargaining process will depend on the circumstances of each case (Rick, at para. 49; Boechler v. Boechler, 2019 SKCA 120 (Sask. C.A.), at para. 34). It is clear from the court’s reasoning in Rick that not every shortcoming in disclosure will bring the integrity of an agreement into question. Rather, the court must assess the significance of any identified disclosure deficits, and must carefully consider any factors or circumstances that may be relevant to the weight, if any, that should be accorded to them. In my view, the case-law respecting section 56(4)(a) of the Family Law Act, which permits the court to set aside a domestic contract based on a failure to disclose significant debts or liabilities existing when the agreement was made, provides valuable guidance for addressing the implications of disclosure shortcomings in the context of unconscionability claims and claims to override domestic contracts pursuant to section 15.2 of the Divorce Act. In this regard, I note that the Ontario Court of Appeal has confirmed that section 56(4)(a) encompasses failure to disclose income and income changes, since a stream of income is an asset (Horner v. Horner, 2004 CarswellOnt 4246 (Ont. C.A.), at para. 77; Tadayon; see also Levan). The two-stage analysis required by section 56(4)(a) involves: a) a determination of whether there was a failure to disclose significant assets, debts or liabilities, and if so; b) a discretionary assessment as to whether it is appropriate to set aside the agreement based on the disclosure deficits. A review of the case-law respecting section 56(4)(a) and the general duty of disclosure in the context of domestic contract negotiations highlights the following non-exhaustive guiding principles and considerations for determining whether there have been relevant disclosure deficits, and if so, whether it is appropriate to exercise discretion in favour of either setting aside or overriding the agreement on the basis of the deficits:

1. The duty to make full and honest disclosure before executing a domestic contract exists to protect the integrity of the bargaining process, to prevent informational and psychological exploitation by either party, and to enable the parties to determine the extent if any to which they are willing to assert or give up their rights under the law (Rick;Boechler, at para. 33). It is a positive obligation on both parties and should not be construed narrowly (Levan;Quinn).
2. Although incomplete disclosure attracts a risk that an agreement may be set aside or disregarded, it does not necessarily attract this consequence in every situation. The court must in each case take a holistic approach in determining whether there has been a failure to make disclosure, and if so, whether any identified disclosure defects justify setting aside, discounting or overriding the agreement. This involves a careful balancing of all relevant circumstances and an analysis of the intentions underlying the parties’ conduct (Virc, at para. 74; Turk v. Turk, 2017 ONSC 6889(Ont. S.C.J.), at para. 192, aff’d 2018 ONCA 993 (Ont. C.A.), at para. 9; Boechler, at para. 34). The general objective of the court in carrying out this analysis should be to determine whether the disclosure provided was incomplete, inadequate or misleading to such an extent that the party seeking to avoid the agreement did not have the ability to determine what would constitute an acceptable bargain (Rick, at para. 49; Boechler, at para. 33).
3. The obligation to disclose will vary according to the type of contract involved. In the case of a separation agreement involving married spouses and touching upon property issues, the duty includes disclosure of assets, debts and other liabilities as of the marriage and valuation dates (Virc, at para 92).
4. The magnitude, extent and significance of the defective disclosure are important considerations (Rick, at para. 49; Virc, at para. 66; Faiello, at para. 28; Shinder, at para. 57). In this regard, the court should consider both the significance of any income, assets and liabilities that were not disclosed, inaccurately disclosed or misrepresented as well as the overall significance of any such defective disclosure for the aggrieved party based on all of the surrounding circumstances, since the two considerations are inextricably intertwined (Bruni v. Bruni, 2010 ONSC 6568(Ont. S.C.J.), at para. 102; Turk, at para. 11; Reid, at paras. 63 and 68).
5. The significance of any non-disclosed assets and liabilities cannot be viewed in a vacuum. Rather, it must be assessed by measuring the value of any assets, debts or liabilities against the party’s disclosed net worth and in the context of the entire relationship between the parties (Quinn, trial decision, at para. 49; Virc 2017, trial decision, at para. 92; Turk, trial decision, at para. 192).
6. Disclosure of assets and liabilities involves providing fair information about their values (Demchuk, at para. 55; Levan, trial decision at para. 55; Virc 2017, trial decision, at paras. 89 and 92; Virc 2017, at para. 59). However, it does not necessarily require that the parties exchange formal valuations of assets, particularly where the aggrieved spouse did not request such valuations during the course of the negotiations (Ramdial, at paras. 1-2).
7. Failure to disclose relevant financial information includes making a material misrepresentation about the true value of an asset or liability (Quinn, trial decision, at para. 49; Butty;Virc 2017, trial decision, at para. 92).
8. Evidence of deliberate concealment or misrepresentation of relevant financial information, or that a party refused to disclose information after being requested to do so, will be important considerations and may make the agreement vulnerable to judicial intervention (Rick, at para. 9; Levan, trial decision, at para. 200; Virc, at paras. 65, 73; Virc 2017, at para. 59; Turk, trial decision, at para. 195, Court of Appeal decision at para. 15). It is no answer for a party who is guilty of this type of misconduct to state that the other spouse could have independently tested the veracity of their representations or taken further steps to ferret out the truth (Virc, at paras. 56-59; Butty).
9. The fact that the party challenging the contract knew of financial misrepresentations by the other party when they executed the agreement may be a bar to a subsequent claim to avoid the agreement based on defective financial disclosure founded upon those misrepresentations (Virc 2017, at para. 62). However, in Virc, the Ontario Court of Appeal indicated that this will only be a bar to relief if the court is satisfied that the spouse seeking to avoid the contract had actual and complete knowledge of the misrepresentations. Constructive or fragmentary knowledge will not suffice to meet this burden, nor will evidence that the aggrieved spouse had a suspicion of misrepresentation. As the Court of Appeal stated in Virc, at para. 69, “a mere suspicion of lack of veracity does not absolve a fraudster of responsibility.”
10. Formal disclosure by way of sworn Financial Statements prior to the execution of an agreement is not necessarily required to satisfy the obligation to disclose (Quinn, trial decision, at para. 48; Butler v. Butler, 2015 ONSC 6796(Ont. S.C.J.), at para. 48). Furthermore, the fact that the party seeking to enforce the agreement neglected to include an item in a Financial Statement is not determinative of whether they failed to disclose it and its value. The court should consider whether the parties exchanged relevant financial information through other avenues, including the exchange of documentation, the provision of information through correspondence or discussions about relevant financial matters (Ward; Shinder, at para. 54; Faiello, at para. 27).
11. Evidence that the party seeking to avoid the agreement had a general awareness of the other party’s assets and liabilities and their values and did not pursue further disclosure may be sufficient to avoid setting aside or overriding an agreement, particularly where there is no evidence of deliberate misrepresentation or concealment by the other party (Ward, at paras. 32-36; Quinn, trial decision, at para. 48; Dougherty, at para. 28; S. (J.) v. S. (D.B.), 2016 ONSC 1704(Ont. S.C.J.), at para. 48, aff’d [Smith v. Smith] 2017 ONCA 759 (Ont. C.A.), at para. 11; Turk, trial decision, at para. 195; Faiello, at para. 27; Verkaik, at para. 4).
12. In considering whether a party had knowledge of the other party’s assets, liabilities and income, the court must also consider the extent of their lawyer’s knowledge of these matters. It is a general principle of the law of agency that in the ordinary case, the knowledge of an agent is imputed to their principal. This tenet is based on the presumption that an agent will communicate their knowledge to the principal since it is their duty to do so (Durbin v. Monserat Investments Ltd. (1978), 87 D.L.R. (3d) 593(Ont. C.A.), at p. 595; Vescio v. Peterman, (1999) 45 O.R. (3d) 613(Ont. C.A.), at para. 2; Shinder, at para. 50). This principle extends to the relationship between legal counsel and their client (Vescio, at para. 2; Acharya Holdings Ltd. v. Standard Trust Co., 2014 NLCA 13, 346 Nfld. & P.E.I.R. 348 (N.L. C.A.), at para. 15, leave to appeal to S.C.C. refused, [2014] S.C.C.A. No. 187 (S.C.C.); Shinder, at para. 50).
13. Another important consideration is whether the party challenging the contract was aware of shortcomings respecting disclosure but decided nonetheless to complete the agreement without pursuing full disclosure. Parties may decide to execute a domestic contract without obtaining full and robust disclosure and valuations, and doing so will not necessarily jeopardize the integrity and enforceability of the agreement (Ramdial, at paras. 1-2; Petruzziello v. Albert, 2014 ONCA 393(Ont. C.A.), at para. 23; Tozer v. Tassone, 2019 ONCA 285(Ont. C.A.), at para. 8). There may be various legitimate reasons for parties to proceed without full disclosure, including cost/benefit and proportionality considerations associated with valuations and exhaustive documentary disclosure. Where there is no evidence of deliberate concealment, misrepresentation or inaccurate disclosure by the party seeking to uphold the agreement, and the other party freely and voluntarily decided to forego disclosure of financial information, the court may decline a subsequent request by that party to set the agreement aside or override it based on failure to disclose that information (Butty, at para. 53; Virc, at para. 63; Turk, trial decision, at para. 195, Court of Appeal decision at para. 15). This principle applies even if there was an order in effect requiring the other party to disclose the information, or if the other party did not fully respond to all requests for disclosure. Exhausting pretrial disclosure remedies is not a precondition to a valid domestic contract (Petruzziello, at para. 23; Quinn, trial decision, at paras. 55-56, Court of Appeal decision, at para. 3). In these types of situations, the court must consider all relevant circumstances surrounding the execution of the agreement to determine whether the aggrieved spouse’s decision to proceed without full disclosure was influenced by any concerning conduct by the other party or other circumstances, and whether the defects in disclosure were such as to undermine the integrity and enforceability of the agreement. Whether the aggrieved party had independent legal representation in deciding to proceed without complete disclosure will also be a relevant consideration in these types of circumstances (Butty, at para. 53; Quinn, Court of Appeal decision, at para. 3).
14. A party who executes a domestic contract despite legal advice to pursue further disclosure, or after discharging counsel who was in the midst of pursuing additional disclosure, will face great difficulty challenging the contract at a later date on the basis of failure to produce the information in question (Butty, at para. 54).
15. There is an important distinction between deliberate misrepresentation regarding income and the value of assets and liabilities on the one hand and uncertainty respecting same on the other. Evidence that there were income or valuation uncertainties when the parties executed the contract, or uncertainties about the potential future value of assets, will not necessarily support a claim to avoid the agreement, particularly where there is no evidence that the party seeking to enforce the agreement was guilty of deliberate concealment, misrepresentation or inaccurate reporting of financial information (Murray v. Murray, 2005 CarswellOnt 3900 (Ont. C.A.), at paras, 24-25; Ward, at paras. 37-39; Butty;Virc;Reid, at paras. 66-68). This is particularly so with respect to income where both parties were clearly aware that the income of the party seeking to uphold the agreement fluctuated or was likely to be in a state of flux (Ward).
16. If problems respecting disclosure are identified, the court should also consider whether the defective disclosure would have changed the outcome for the aggrieved spouse. In considering this issue, the court must consider all aspects of the agreement globally, taking into consideration concessions made by the parties to address their unique concerns and circumstances (Butty, at para. 53; Shinder, at para. 58; Turk, Court of Appeal decision, at paras. 7, 12-14; Hillman v. Letchford, 2015 ONSC 3670(Ont. S.C.J.), aff’d 2017 ONCA 117(Ont. C.A.)).
17. Other factors which the courts have considered in the analysis are:

a) Whether the problematic disclosure was coupled with duress or unconscionable circumstances;

b) Whether the moving party moved expeditiously to have the agreement set aside;

c) Whether the moving party received substantial benefits under the agreement;

d) Whether the party seeking to uphold the contract has fulfilled their obligations under the agreement; and

e) Whether the defective disclosure was a material inducement to the aggrieved party entering into the agreement; in other words, how important would the non-disclosed information have been to the negotiations?

(Turk, Court of Appeal decision, at para. 15; Smith, Court of Appeal decision, at para. 11; Quinn, at para. 47; Levan; Demchuk, at paras. 58-69; Dochuk, at para. 17)).

The Supreme Court of Canada emphasized in both Miglin and Rick that concerns regarding the circumstances in which a domestic contract was negotiated and executed, whether they are in the nature of vulnerabilities, defective disclosure or otherwise, may be compensated for by effective legal representation or other professional assistance during the negotiation process (Miglin, at para. 83; Rick, at para. 61). However, the court cannot simplistically view such assistance in and of itself as a panacea for concerns surrounding the bargaining process. As the court stressed in Rick, whether professional assistance effectively mitigated such concerns is a matter of fact to be decided in each case (Rick, at para. 61; see also Downer, at paras. 51-52). In addressing this question, the court should consider all relevant circumstances, including the nature, extent and quality of the advice received, and whether there were concerns regarding the party’s ability to comprehend and appreciate the advice (Downer, at para. 51). For example, in Rick, the court upheld the trial judge’s decision that the concerns relating to the circumstances of execution were not in fact compensated for by the fact that the wife had received legal advice and professional assistance from mediators, since the wife was unable to make effective use of that help due to her serious emotional and mental instability (at para. 62).”

         Kinsella v. Mills, 2020 ONSC 4785 (CanLII) at 415-416

“Under Rule 25(19)(e) of the FLR, if the moving party has provided a satisfactory reason for being unable to attend in court, the court may exercise its discretion and set aside the decision made all or in part.

As emphasized by the Court of Appeal in Gray Rule 25(19)(e) of the FLR must be construed in light of the primary objective set out in Rules 2(2) and 2(3).  Rule 2(3) states:

Dealing with a case justly includes,

(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.

Where, as is more often than not the case, a party is self represented, the court must also be mindful of the  Statement of Principles on Self-represented Litigants and Accused Persons (2006) established by the Canadian Judicial Council and endorsed by the Supreme Court of Canada in the recent decision of Pintea v. Johns 2017 SCC 23.  These principles include the following:

• • • Access to justice for self-represented persons requires all aspects of the court process to be, as much as possible, open, transparent, clearly defined, simple, convenient and accommodating.

• • • Judges and court administrators should do whatever is possible to provide a fair and impartial process and prevent an unfair disadvantage to self-represented persons.
  • • Self-represented persons should not be denied relief on the basis of a minor or easily rectified deficiency in their case.
  • • Judges and court administrators have no obligation to assist a self-represented person who is disrespectful, frivolous, unreasonable, vexatious, abusive, or making no reasonable effort to prepare their own case.
  • • Judges have a responsibility to inquire whether self-represented persons are aware of their procedural options, and to direct them to available information if they are not.  Depending on the circumstances and nature of the case, judges may explain the relevant law in the case and its implications, before the self-represented person makes critical choices.
  • • Judges should ensure that procedural and evidentiary rules are not used to unjustly hinder the legal interests of self-represented persons.”

Gray v. Gray, 2017 ONSC 5028 (CanLII) at 29-31

“Mr. Spencer acknowledges that Ms. Spencer is and has been a good parent. Ms. Spencer’s evidence is that the children were doing well with her after separation and had adapted to the routine that the parties had put in place. This is not disputed by Mr. Spencer. Accepting, as I do, that Mr. Spencer has been a good and caring parent, nevertheless on an interim motion where there is evidence that the children are doing well, the court is inclined to maintain the status quo in the absence of convincing reasons to the contrary. The court should be careful not to further disrupt the lives of the children by a major change in their lifestyle at an interim stage.”

Spencer v. Spencer, 2006 CanLII 34454 (ON SC) at 25

“The concerns respecting the Father’s use of drugs meets the test of a material change of circumstances that warrants supervision.  Drug or alcohol addiction on the part of one of the parents, coupled with the children doing poorly as a result of the parenting regime, qualify as compelling reasons to vary a temporary Order.  (See for example, Shotton v. Switzer, 2014 ONSC 843 (CanLII).)”

         Kazanzhy v. Yozef, 2020 ONSC 4985 (CanLII) at 50

“The Mother’s lawyer argued that because the child lived primarily with her mother, her place of habitual residence was with her mother, regardless of where she lived.  She further argued one parent can change a child’s habitual place of residence and refers to the hybrid approach set out recently by the Supreme Court of Canada: Office of the Children’s Lawyer v. Balev, 2018 SCC 16.  The legal point she has missed is that the court considers the child habitual place of residence immediately prior to the removal, not subsequent to the removal.  Further, in Balev, the children had lived in Germany and moved to Ontario for the school year with both parties’ consent.  After the consent period lapsed, the children remained in Ontario.  The question in Balev was whether a child’s habitual residence can change while he or she is staying with one parent in another country under the time limited consent of the other. In the case before me, the father did not consent to Noemi moving to Canada and did not even know where she was for quite some time after her removal.  The facts are entirely different.”

         Monari v. Ojo, 2019 ONSC 4879 (CanLII) at 8

“As held by Binnie J. in Wood, access to legal advice is a fundamental right in Canada. There is nothing that limits this right to adults.

As stated by the Court of Appeal in Ontario (Children’s Lawyer) v. Ontario (Information and Privacy Commissioner), 2018 ONCA 559, childhood is not a “legal disability” disentitling children from the right to retain and instruct counsel. At paras. 71 and 72, the Court noted the right of children to speak to counsel in a private, confidential sphere so that their voices can be heard.

Children consult and retain lawyers regularly across Ontario without prior permission from their parents or the court on topics as diverse as immigration, housing, education, criminal law, health law, and many other topics including family law. JFCY is a legal clinic that specializes in providing legal advice to young people. The argument that parental permission or court authorization is required before [Justice for Children & Youth] JFCY can give advice to children would undercut its ability to do its work. The position of the respondent father that his permission, as the court-ordered custodial parent, was required before his son can consult a lawyer, is, simply put, wrong.

In fact, the [Child Youth and Family Services Act, 2017] CYFSA reinforces this view.

The preamble to the CYFSA states that children are “individuals with rights to be respected”.

Section 10(1)(b) of the CYFSA provides that a child in care, which was A.G.’s status at the time the order in this case was made, is entitled to speak in private with and receive visits from a lawyer.

Children over the age of seven have a right to independent legal advice in adoptions.

The CYFSA also permits children of 12 years of age or over the right to seek to vary or terminate supervision, interim or extended custody orders (CYFSA, ss. 113(4)(a), 115(4)(a)), implying that they have a right to seek legal advice before doing so.

A child also has a separate and distinct right to participate in CYFSA proceedings apart from direct representation. Section 79(4) states that a child 12 years of age or older is entitled to receive notice and be present at the hearing, unless the court is satisfied that their presence would cause the child emotional harm.

The CYFSA’s reference to international human rights instruments also reinforces the rights of children to obtain independent legal advice.

The preamble to the CYFSA states “… the Government of Ontario acknowledges that the aim of the Child, Youth and Family Services Act, 2017, is to be consistent with and build upon the principles expressed in the United Nations Convention on the Rights of the Child”.

The United Nations Committee on the Rights of Children’s General Comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration (art. 3, para. 1), 29 May 2013, CRC/C/GC/14, recognizes at para. 4 that a child’s right to legal services forms part of the protection of their best interests. General Comment No. 12 (2009), The right of the child to be heard, 20 July 2009, CRC/C/GC/12, links the right to legal services with the right of the child to understand their rights and the processes in which decisions are being made about them. Paragraph 16 states:

The child, however, has the right not to exercise this right. Expressing views is a choice for the child, not an obligation. States parties have to ensure that the child receives all necessary information and advice to make a decision in favour of her or her best interests.

Children are entitled to seek legal advice without permission from their parents or the court. No authority was cited to us to the contrary. Neither Rule 4(7) of the Family Law Rules nor s. 78 of the CYFSA speaks to this point. Indeed, by necessary implication, Rule 4(7) and s. 78 of the CYFSA must indicate the contrary: in order for a child to move under these provisions, the child will usually have to consult a lawyer before court permission to participate in the proceeding can be sought.

While we agree that the court could intervene in a particular solicitor-client relationship between a lawyer and a child, we have difficulty imagining a case where the court would make an order that entirely precluded a child from seeking and obtaining legal advice from any lawyer. It certainly may be appropriate for the court to intervene in a parental alienation case where the lawyer is closely allied with one parent. However, in such cases, the court would ordinarily facilitate an arrangement for the child to obtain legal advice elsewhere, and certainly would not prohibit the child from getting legal advice altogether.

Where a child wishes to receive legal advice, many factors can come into play in identifying and arranging for that counsel. We do not find it necessary to canvass the spectrum of approaches that are available. However, where, as here, a child has independently sought out the assistance of a legal clinic that specializes in dealing with children in crisis, it is hard to imagine that there would be many circumstances, if any, that would justify terminating that relationship.”

         Justice for Children and Youth v. J.G., 2020 ONSC 4716 (CanLII) at 51-65