



COURT OF APPEAL FOR ONTARIO

CITATION: Mader v. McCormick, 2018 ONCA 340

DATE: 20180406

DOCKET: C64159

Hourigan, Pardu and Huscroft JJ.A.

BETWEEN

Larry Mader

Applicant (Appellant in Appeal)

and

Tracy McCormick

Respondent (Respondent in Appeal)

Glenda McLeod, for the appellant

Judy Byrne and Kaitlin Jagersky, for the respondent

Heard: April 4, 2018

On appeal from the final order of Justice Robert D.
    Reilly of the Superior Court of Justice, dated July 13, 2017 with reasons
    reported at 2017 ONSC 4283.

REASONS FOR DECISION

[1]

Larry Mader appeals from the decision of the
    Superior Court of Justice upholding the Ontario Court of Justice decision
    dismissing his motion to appoint private counsel for two children, L.M., soon
    to be 16 years old, and N.M., now 13 years old.

[2]

Mader and Tracy McCormick were married in 1999
    and separated in 2010. The parties negotiated a separation agreement providing
    for the childrens primary residence with the respondent mother, alternating
    weekends with the father, weekday access until 7:00 p.m. (later to 8:30 p.m.)
    on Mondays and Tuesdays and until 5:30 p.m. on Wednesdays and Thursdays.

[3]

In or about 2013, the appellant initiated a motion
    to vary access. In this proceeding, the Office of the Childrens Lawyer (OCL)
    was appointed for the children. The OCL at Office conducted an investigation
    and concluded that the children did not want to vary the existing access
    schedule. The appellant withdrew his motion for an increase in access in
    October 2014. He maintained a motion to decrease child support, based on an
    argument that there was a shared custody agreement. That motion was dismissed
    in January 2015. One year later, the appellant elected to retire. In December
    2015, he moved again to increase his time with the children and to decrease
    child support. He wanted half of his mid-week access visits extended to
    overnight visits. In May 2016, the appellant moved for an order appointing the
    Office of the Childrens Lawyer. That motion was dismissed and no appeal was
    pursued.

[4]

In August 2016, the appellant moved for an order
    appointing a private lawyer for the children, who proposed to conduct an
    investigation in the same way as would the Office of the Childrens Lawyer:

I treat my private
    retainers for children the same way I do with the OCL appointments. In other
    words, I seek collateral information that confirms or contradicts the views and
    preferences of the children, and I require access to the children as requested.

Whenever possible,
    I meet with the children outside of either party's home to maintain neutrality.
    I would initially meet with the children together to explain my role, but after
    that, I would usually meet with them independently, unless requested by both
    children.

I would want the
    order to indicate that as the children's lawyer, I would have full power to act
    for the children as though they were parties to the proceedings and then have
    the right to:



make a full and independent inquiry of all circumstances relating to
    the best interests of the children,



to receive copies of all professional reports and all records relating
    to the children,



have production and discovery according to the Rules,



the right to appear and participate in the proceeding including the right
    to examine and cross examine witnesses, call evidence, and make submissions to
    the Court, including submissions regarding the positions, views and preferences
    advanced on behalf of the children,



to take such appeal proceedings as deemed appropriate,



seek costs relating to the proceedings when appropriate, and



the usual attached Appendix A regarding the
    production of police records.

[5]

The motion judge noted that the custody issues
    did not involve mobility issues and that this was not a fresh custody
    application. She dismissed the motion for appointment of private counsel for
    the children for the following reasons:

(a)

the children had OCL counsel two years ago and
    at that time, indicated that they did not want any change in the visitation
    arrangement;

(b)

the children are not exhibiting any behavioral
    or academic issues that would point to unhappiness with their time spent in
    each parent's care;

(c)

in one text exchange, the father indicated that
    L.M. did not want to talk about the issue of increased access to her father;

(d)

the father's insistence that the children become
    involved in the court application by having counsel appointed is not child
    focused;

(e)

as young teenagers, the investigation of their
    teachers and other collateral sources may be embarrassing and uncomfortable to
    them;

(f)

these children should not be burdened with being
    asked about their wishes again, so soon after they were last involved with an
    OCL counsel;

(g)

L.M. and N.M. are well-functioning young people
    who enjoy spending each weekday with both parents. This is what they have known
    for the past 6 years.

[6]

On appeal to the Superior Court of Justice, the
    appeal judge observed that the motion judge had accurately reviewed the
    jurisprudence. He was satisfied that her decision was proper, concluded that
    there was no palpable and overriding error, and dismissed the appeal.

[7]

The appellant argues that the motion judge
    was obliged to appoint counsel for the children and failed to pay heed to the
United
    Nations Convention on the Rights of the Child,
Can. T.S. 1992 No. 3, and that the appeal
    judge erred in upholding the decision below

[8]

We do not agree.

[9]

Rule 4(7) of the
Family Law Rules
, O. Reg.114/99 provides that [i]n a case that involves a child who
    is not a party, the court may authorize a lawyer to represent the child, and
    then the child has the rights of a party, unless the court orders otherwise.
    The wording of the provision is permissive, not mandatory.

[10]

Article 3 of the
United Nations
    Convention on the Rights of the Child,
ratified by Canada
    in 1991, provides in part that [i[n all actions concerning children, whether
    undertaken by public or private social welfare institutions, courts of law,
    administrative authorities or legislative bodies, the best interests of the
    child shall be a primary consideration.

[11]

Article 12 of the same provides as follows:

1.
States Parties shall assure to the child who is capable of forming
    his or her own views the right to express those views freely in all matters
    affecting the child, the views of the child being given due weight in
    accordance with the age and maturity of the child.

2.
For this purpose, the child shall in particular be provided the
    opportunity to be heard in any judicial and administrative proceedings affecting
    the child, either directly, or through a representative or an appropriate body,
    in a manner consistent with the procedural rules of national law.

[12]

The decision whether or not to appoint a lawyer
    for children is a discretionary decision which should focus on the best
    interests of the children. Deference is owed to a motion judges assessment of
    the advantages and disadvantages of such an appointment:
Fiorito v.
    Wiggins
, 2014 ONCA 603.

[13]

As Fleury J. noted in
Reynolds v.
    Reynolds
,
[1996] O.J. No. 2230,
at para. 3:

This remedy [appointing
    a lawyer for the children] should not be available only for the asking. In as
    much as it implicates the children very directly in the entire litigation, it
    is a very blunt instrument indeed. It can cause untold harm to impressionable
    children who may feel suddenly inappropriately empowered against their parents
    in a context where the children should be protected as much as possible from
    the contest being waged over their future care and custody. All actions
    involving custody and access over children should be governed by one paramount
    consideration: no one should be allowed to act in a way that might endanger
    their well-being. The test of "the best interests of the children" as
    insipid and fluid as it might be, still remains the benchmark against which any
    person wishing to interfere in their lives should be measured.

[14]

We are not persuaded that the motion judge erred
    in balancing the childrens best interests or that the appeal judge erred in
    his consideration of the appeal. The appeal is dismissed with costs to the
    respondent fixed at $12,000 all-inclusive.

C.W. Hourigan J.A.

G. Pardu J.A.

Grant Huscroft J.A.


