



COURT OF APPEAL FOR ONTARIO

CITATION: Fiorito v.
    Wiggins, 2014 ONCA 603

DATE: 20140820

DOCKET: M43885 (C57453)

Pardu J.A. (In Chambers)

BETWEEN

Anna Maria Fiorito

Applicant (Appellant in Appeal)

and

Jefferson Ross John Wiggins

Respondent (Respondent in Appeal)

Harold Niman and Donna A. Wowk, for the applicant

Brian Ludmer, for the respondent

Heard: August 5, 2014

On motion to appoint the Childrens Lawyer pursuant to s.
    89 of the
Courts of Justice Act
.

ENDORSEMENT


[1]

The appellant moves for an order requesting the appointment of the
    Childrens Lawyer to act on behalf of three children, aged 12, 11 and 10 in
    this appeal. She submits that the Childrens Lawyer could engage the services
    of an expert to evaluate the children, and that such a report, together with
    submissions on behalf of the children, could be of assistance to the court on
    this appeal.

[2]

The trial judge found that the mother had engaged in an unremitting
    course of attempting to poison the children against their father. This was
    profoundly harmful to the children. He qualified the mothers conduct as
    amounting to serious emotional abuse of the children. The girls were becoming
    unreasonably estranged from their father. The trial judge found that the mother
    empowered the children to behave in an abusive and disrespectful manner towards
    their father.

[3]

A finding of contempt was insufficient to persuade the mother to change
    her behaviour, and finally the judge ordered a transfer of custody to the
    father, over the strong objections of the children, and granted access to the
    mother only in the company of a child therapist for an hour and a half once a
    week. Evidence filed on this motion shows that the relationship of the children
    with their father has markedly improved, but that they still regress after
    contact with the mother or her extended family. The trial judge expressly left
    open the possibility of a variation to increase the childrens time with their
    mother if she could demonstrate that she had ceased to engage in the sabotage
    of the fathers relationship with his daughters. The children continue to see a
    therapist weekly, and are interviewed by a Childrens Aid Society worker once
    or twice each month. The Childrens Aid Society supports continued residence of
    the children with their father.

[4]

The respondent opposes the involvement of the Childrens Lawyer, on the
    ground that the children have already been assessed by multiple professionals
    over the course of protracted litigation and two five week trials. He submits
    that yet another assessment is unnecessary and will distort the appeal process.
    If the children take the position through counsel that they want to live with
    their mother, he will be obliged to respond with fresh evidence demonstrating
    that these wishes are the product of pressure and influence by the mother, who
    continues to try to undermine his relationship with his daughters. An appeal
    court is ill suited to resolution of these factual issues. The change of
    custody took place at the end of June 2013, and this motion is brought for the
    first time more than a year later. Appointment of the Childrens Lawyer will
    delay hearing of the appeal.

[5]

The mother submits that granting custody to the father was contrary to
    the childrens best interests, and contrary to their wishes. She submits that
    the children need someone neutral, independent and unburdened by conflict to
    speak on their behalf.

[6]

I begin with the observation that the focus of the appeal will be
    whether the trial judge erred in transferring custody as he did. Custody
    decisions are owed a high degree of deference. Appellate courts do not have the
    advantages of a trial judge in making findings of fact upon contradictory
    evidence, as most assuredly would ensue if fresh evidence were admitted in this
    case. Most requests for assistance from the Office of the Childrens Lawyer
    come from trial courts, for this reason. As pointed out in
B (A.C.) v. B.
    (R.)
, 2010 ONCA 714, over a nearly 17 month period during which 5548
    referrals were made to the Office of the Childrens Lawyer, all but two came
    from the Superior Court of Justice and the Ontario Court of Justice. Section
    112(1) of the
Courts of Justice Act
provides that the Childrens
    Lawyer may cause an investigation to be made and may report and make
    recommendations to the court on all matters concerning custody of or access to
    the child. A report may be filed as evidence, and the author may be
    cross-examined. If counsel from the Office of the Childrens Lawyer appears on
    the appeal, his or her role would be as advocate (
Strobridge v. Strobridge
(1994), 4 R.F.L. (4
th
) 169 (Ont. C.A.), making submissions on the
    record before the court and arguing that the trial judgment should be upheld or
    reversed. If, as seems likely, the children take the position they want to live
    with their mother, counsel for the children would in large part be mirroring
    the submissions I would expect from the mother.

[7]

But for the appointment of the Childrens Lawyer, this appeal could be
    perfected within weeks. If the Childrens Lawyer were to undertake an
    investigation of any depth at all in this highly complex family situation, it
    would take months. Anything less would risk providing a superficial momentary
    snapshot of the childrens situation. Building a rapport with these children
    and sorting out anew the degree to which their wishes are the product of
    parental pressures could take a substantial period of time. The trial judge had
    the advantage of ten weeks of trial time with these parties, and the benefit of
    the evidence of professionals and others who have interacted extensively with
    the children.

[8]

It may be that the children would have to be investigated separately,
    given the suggestions on the evidence that the oldest child is more aligned
    with the mother, and influences the others to take the same position. It may be
    that the children have different views and that counsel for the children would
    have to take different positions for different children.

[9]

These children have been exposed to countless therapeutic and social
    work interventions since separation in 2008. Their behaviour during therapy has
    been influenced by parental intervention between visits and tailored to accord
    with a parents position. A partial history of professional involvement with
    these children includes the following:

·

Dr. Schnayer performed two custody assessments. He indicated in
    his first report of May 8, 2009, that the children were at high risk of
    emotional harm because of the high level of parental conflict. He suggested
    counselling to restore the father-daughter relationships, and in October 2010
    reported that there was no reason the children should not have a normal
    relationship with their father.

·

Mark Donlon, a parenting coordinator, attempted to implement
    access arrangements but was unable to do so because the mother did not agree.

·

Katherine Beacroft is a social worker at the Windsor Catholic
    School Board, and saw the children over a five month period.

·

Allison McKinnon supervised access by the father, and observed
    negative changes in the childrens behaviour over time.

·

The Childrens Aid Society opened a file on this family on July
    4, 2008, and over the years have conducted numerous investigations of the
    family. Allegations of abuse and neglect made against the father by the mother
    have been rejected as unfounded. At least five different family service workers
    have dealt with this family. The Childrens Aid Society continues to assess the
    children and see them once or twice each month.

·

Dr. Lee and Dr. Ricciardi have had long involvement in
    counselling the children, and Dr. Ricciardi continues to see them weekly.

[10]

Despite
    the conflict to which the children have been exposed, they seem to be doing
    well. Recent reports from their school suggest that they are doing well on
    academic, social and emotional levels. The Childrens Aid Society has also
    expressed the view that they are doing well.

[11]

At
    no point prior to this motion has any party requested that the Childrens
    Lawyer should be involved at any stage of this litigation, ongoing since
    separation in 2008.

[12]

In
    the end, I conclude that whatever advantages involvement of the Childrens
    Lawyer might have for this case are outweighed by the disadvantages.

[13]

The
    delay in the hearing of this appeal which would likely result from involvement
    of the Childrens Lawyer at this late stage would not be in the best interests
    of the children.

[14]

Appointing
    counsel for the children would carry the risk of polarizing the children
    further in the contest between mother and father. In this case, it might set
    back the progress the father has started to make in normalizing his
    relationship with his daughters. The childrens views at the time of the trial
    judgment were clear. They strongly objected to the change in custody, and
    likely still hold those views, although more recently they may not be reacting
    so forcefully as a unified bloc. The panel hearing this appeal will undoubtedly
    consider the childrens wishes and the impact of those wishes on the trial
    judges decision.

[15]

Possible
    new evidence, in the form of a report and investigation by the Office of the
    Childrens Lawyer, risks distorting the appeal process. Furthermore, exposing
    the children to yet more social workers or psychologists may exacerbate the
    difficulties for the children associated with the litigation and parental
    conflict. Little weight may ultimately be given to the childrens positions if
    their preferences are the result of the mothers deliberate attempts to ruin
    the childrens relationship with their father.

[16]

In
    the end, the trial judge concluded that the disruption caused by removal of the
    children from their mothers care against the girls wishes was outweighed by
    the value and importance to their best interests of ensuring that they had a
    close relationship with their father. As observed in
Laurin v. Martin
2006 Carswell Ont 8905 (SCJ), at pp 3-4, affd 2007 CarswellOnt 5593 (CA):

The Court will only ask the O.C.L. to intervene if the Court is
    satisfied it is necessary to do so to ascertain the wishes of the child and/or
    provide professional input, usually from a social worker, in order to permit
    the Court to better ascertain what is in the best interest of the child.

Having read all the material in this long and hard-fought
    litigation it is obvious that the childs wishes, the parental ability of the
    parents, the needs of the child and her relationship to both parents have been
    the subject of intense scrutiny by the Court for the last four years. The Court
    has already had the help of many professionals, including the O.C.L. The
    Respondent has failed to point to any evidence which convinces the Court that
    the appointment of the O.C.L. in the context of this new round of litigation
    will add anything to help the Court decide the issue raised by the main motion.

[17]

For
    these reasons, the motion to request the assistance of the Childrens Lawyer is
    dismissed. I see no need for directions, as this appeal is close to being
    perfected and can be set down for hearing shortly.

[18]

Costs
    should follow the result. Costs to the respondent on the motion fixed at
    $10,000.00.

G. Pardu J.A.


