Recommendations of the Children’s Lawyer: Are They Binding?

In Ontario, the Office of the Children’s Lawyer (OCL) is primarily tasked with representing children under the age of 18 in court cases involving custody, access and child protection.   Among the OCL’s related duties, as established under s. 112 of the Courts of Justice Act, R.S.O. 1990, c. C.43, is to conduct independent investigations and to provide the court with unbiased recommendations on various aspects of a child’s care, custody, and well-being, which can include investigating and determining the child’s needs, wishes and interests.  An assessment can be ordered by the court at any stage of the proceedings.

To fulfill its mandate in this regard, the OCL will generally provide a written report prepared by a clinical investigator.   But given that the OCL is a third-party government entity, the question arises as to the weight a court can (or must) give to such independent OCL-prepared assessments, and also the particular circumstances in which they can be given only little consideration, or even ignored or disregarded altogether.

There are some basic principles which govern a court’s potential use and inherent discretion around adopting and implementing the recommendations made in a report by the OCL.

First of all, and although the general practise is that a court usually give substantial weight to an OCL report (see Pollak v. Pollak (1995), 1995 CarswellOnt 4800 (Ont. Gen. Div.); affirmed (1996), 1996 CarswellOnt 1595, 23 R.F.L. (4th) 53 (Ont. C.A.) and Bajada v. Bajada (1995), 1995 CarswellOnt 2027 (Ont. Gen. Div.)), it remains merely one piece of evidence that the court is entitled to assess in the course of fulfilling its usual duties; the parties should not assume that the court will automatically accept the report or its individual recommendations (Potter v. Da Silva, 2014 ONCJ 44).

Next, a court is not bound by OCL recommendations, particularly where it has found that the evidence simply does not support the significant factual assumptions that went into making it.  A court is accorded a high degree of deference in this respect (Cade v. Rotstein, 2004 CarswellOnt 363, [2004] O.J. No. 286, 181 O.A.C. 226, 50 R.F.L. (5th) 280).   Furthermore, a court is not permitted to delegate its decision-making on its custody and access matters to the OCL or any other third party (Strobridge v. Strobridge (1994), 18 O.R. (3d) 753, 72 O.A.C. 379, 115 D.L.R. (4th) 489, 4 R.F.L. (4th) 169 (Ont. C.A.); and A. (B.) v. A. (D.M.), 1995 CarswellOnt 771, [1995] O.J. No. 4197 (Ont. Gen. Div.).

Also, it should be noted that the recommendations contained in an OCL report do not amount to “findings of fact”; rather the court always  remains possessed of that function, after hearing and considering all of the evidence, given under oath, by way of affidavit or orally (Jackson v. Jackson, 2013 ONSC 7884, 2013 CarswellOnt 17959, at para. 45).

All of this means that in connection with OCL reports, the court retains considerable leeway.  The precise extent to which a court will consider the report of the OCL, and the weight to be given its included recommendations, will depend on numerous factors in the court’s own discretion, including:

• Whether the facts on which the report is based are already contained in the evidence before the court (Glover v. Glover, 2013 ONSC 4068, at para. 17);
• Whether the recommendations involve the application of any highly-specialized area of expertise (Glover v. Glover, 2013 ONSC 4068, at para. 17); and
• The qualifications of the investigator, the recitation of facts, assessment of the parties, methodology, and manner of arriving at the various conclusions (Prokopchuk v. Borowski, 2010 ONSC 3833 (Ont. S.C.J.); additional reasons at 2010 ONSC 4554 (Ont. S.C.J.).

A court may therefore adopt all or part of the OCL recommendations as it sees fit in the circumstances.  Indeed, where the report has not been tested through cross-examination, a court is entitled to disregard the report in its entirety (Ciutcu v. Dragan, [2014] O.J. No. 5418, 2014 ONCJ 602; Abrego v. Abrego, 2006 ONCJ 500).  Similarly, a court is at liberty to wholly discard as unreliable the evidence in an OCL report in favour of the credible evidence of one of the parties; this alone does not amount to a serious error or a reasonable apprehension of bias (Lee v. Kim, 1999 CarswellOnt 955, [1999] O.J. No. 1252 (Ont. Gen. Div.).   Finally, it should be noted that the evidence contained in a report – but not the ultimate recommendations – can be considered by a court at its discretion (see for example Glover v. Glover, 2013 ONSC 4068, at para. 17).

Regardless of what an OCL report might recommend, the court must remain mindful of the various legal and statutory requirements that are a pre-requisite to changes in the parties’ status quo.  For example, in Marques v. Raulino, 2013 ONCJ 477; add’l reasons 2013 ONCJ 609, the child had been living with the mother, with the father enjoying regular access.   The report by the OCL recommended joint custody with primary residence to the mother, and expanded access for the father.  When the father brought a motion to have those recommendations immediately implemented (and the court order adjusted accordingly), the court declined, pointing out that the father had failed to meet the onus of showing that there had been a material change in circumstances.  Moreover, the OCL report contained little analysis or explanation for the conclusion that there should be a move toward joint decision-making and a change to the existing access arrangements.

As a procedural point, there is some consensus among Ontario Family Courts that the recommendations in a custody assessment should be used only at trial, and not on an interim motion, unless there are exceptional circumstances (see Glover v. Glover, 2013 ONSC 4068, at para. 15; Medvis v. Peters, 2002 CanLII 49546, at para. 9; Mayer v. Mayer, 2002 CanLII 2753, at para. 24; Forte v. Forte, 2004 CanLII 7631, at para. 7; Kerr v. Hauer, 2010 ONSC 1995 (Ont. S.C.J.), at para. 7).   But given that an OCL-prepared assessment can occur even on a motion at an interim stage, there are additional factors relating to hearings on interim motions.    These were set out succinctly in a decision called Bos v. Bos, 2012 ONSC 3425 (at paras. 23-24 and 26-27), which reads as follows:

[23] I respectfully agree and adopt the principles in relation to considering an assessment report on a motion as set out in Forte, [2004] O.J. No. 1738 and Kerr, [2010] O.J. No. 1506 . In my view, the jurisprudence has evolved to the point that although the general principle enunciated in Genovesi continues to be well founded, it is not so rigid and inflexible as to prevent a court on a motion to give some consideration to the content of an assessment report where that assessment report provides some additional probative evidence to assist the court, particularly where the court is making an order which is not a substantive departure from an existing order or status quo. In such circumstances, the court may consider some of the evidence contained in an assessment report without having to conclude that there are “exceptional circumstances” as set out in Genovesi, [1992] O.J. No. 1261 . In fact, “exceptional circumstances” findings were not made in either Forte or Kerr.

[24] The court has a duty to make orders in a child’s best interests and it would be counter intuitive to this principle to impose on the court an inflexible blanket prohibition against considering any aspect of an assessment report (absent exceptional circumstances) on an interim motion, especially when the only independent objective evidence before the court is from an expert assessor.

[26] In any situation when a court is faced with a motion for interim relief in relation to custody and access issues and where an assessment has been prepared and where the court is being asked to consider the assessment without making a finding that “exceptional circumstances” exist, it will be a matter for the motions judge to weigh all appropriate factors within the context of that particular case. Without in any way being exhaustive, these factors may include:

1. How significant is the change being proposed as compared to the interim de jure or de facto status quo?
2. What other evidence is before the court to support the change requested?
3. 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?
4. 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?

[27] It must be cautioned that the existence of an assessment report should not make it “open season” for parties to automatically bring motions attempting to implement some aspects of the report or to tweak or otherwise change existing interim orders or an existing status quo. Clearly, the facts of each case will be critical and will guide the exercise of the court’s discretion.

In short:  On a motion to vary an interim order, OCL recommendations may be a factor to be considered, but the court must be cautious and consider all the circumstances, especially where there are no exceptional circumstances for the change requested (Kirwan v. Kirwan, 2014 ONSC 3308, at para. 28).

Finally, any recommendations by the OCL must nonetheless fall within the prescribed legislative authority and parameters; in other words, the OCL may not over-step its own mandate.  For example, in a decision called Sidhu v. Sidhu, 1999 CarswellOnt 4850, 100 A.C.W.S. (3d) 444 (Ont. C.J.), after the usual investigation the OCL report recommended a drastic change:  that instead of the father’s existing liberal access, he be given custody of the child.  The court rejected that recommendation;  not only were there some concerns relating to its factual underpinning, but the OCL had also exceeded its jurisdiction in purporting to make it.    It has also been held that a court may order the OCL to update its report in certain circumstances, and the OCL is not at liberty to refuse (Mayfield v. Mayfield, 2001 CarswellOnt 2036, [2001] O.J. No. 2212, [2001] O.T.C. 429, 18 R.F.L. (5th) 328 (Ont. S.C.J.).