Law Times

Law Times • June 1, 2009 NEWS PAGE 5 his younger brothers who were ordered to attend controversial parental alienation deprogram- ming by a judge, exposes the un- derbelly of Ontario's family law infrastructure in the context of custody proceedings. In the forefront is Superior T Court Justice Francine Van Melle's initial custody order in favour of the mother, which ordered the children have no contact with their father and brother, and re- ceive alienation deprogramming. In the background is an in- ternecine struggle between core components of that infrastruc- ture: the courts, the Children's Aid Society, the Offi ce of the Children's Lawyer, Legal Aid On- tario, and the private bar. And emerging from the chaos are insights into the paucity of le- gal help available for children in Ontario and the continuing con- troversy over the role of the Of- fi ce of the Children's Lawyer. So acute is the systemic tension that after Van Melle directed chil- dren's aid as to how they should handle a subsequent protection proceeding in the case and made an endorsement to that eff ect, the CAS refused to comply. CAS lawyer Raymond Sharpe, who would not comment on the case, took the position that the Superior Court's orders were in- operative while the protection proceedings were under way in the Ontario Court of Justice. And, when an Ontario Court judge ordered the Offi ce of the Children's Lawyer to appoint separate lawyers for the two younger brothers aged 14 and 12, it refused to comply and had only one counsel — Toronto's Sheila MacKinnon — represent the two. Brendan Crawley, a spokes- person for the attorney general and the Children's Lawyer, would Case exposes underbelly of family law infrastructure Analysis BY JULIUS MELNITZER For Law Times he high profi le case that featured an 18-year-old who sought custody of not comment on the case while the matter was before the courts. Th ere's still a chance all may end well. After years of family warfare, the mother and father agreed to an interim settlement spearheaded by their eldest son. Th e settlement, reached in late April, has the younger boys spending 100 days with their mother in an attempt at recon- ciliation, and hopefully as a pre- cursor to fi nal settlement. Th ey had spent fi ve weeks in a psychi- atric ward after the CAS appre- hended them when they refused to participate in the deprogram- ming. Th e society subsequently placed them in a foster home. With all this at stake, one would have hoped that all the parties would be properly repre- sented. As it turns out, the mother eventually retained Marvin Kurz of Brampton's Dale Streiman & Kurz LLP, an experienced family law and child protection counsel. But the eldest son managed to retain counsel only after Jeff ery Wilson of Toronto's Wilson Chris- ten LLP, a prominent children's rights advocate, agreed to take on the case pro bono. And Terry Ed- gar, executive director of Missis- sauga Community Legal Services, felt he had no choice but to rep- resent the father when no lawyer could be found to act for him — at least not at legal aid rates. "It's hard to get anybody to do anything at legal aid rates, and that's especially true in child protection cases, where even most family law- yers have little experience," Edgar says. "And when we approached Pro Bono Ontario, they advised they didn't have a bunch of people in the family law area. "However, I determined that this case raises such fundamen- tal issues of child protection that any representation — even from someone as inexperienced in family law and protection matters as myself — was prefer- able to the voice of the children not being heard," he says. "Th is was made so much more Being Counsel in an International Arbitration: What You Need to Know Friday, June 5, 2009 — 8:30 a.m. - 1:00 p.m. The Advocates' Society Education Centre 1700 - 480 University Avenue The world's top international arbitration practitioners are coming to Toronto and they've agreed to share some tips. Topics include: • Why international arbitration is different • Strategic planning for international arbitrations – clauses, statutes, arbitral institutions and rules of evidence • Choosing your tribunal, obtaining interim relief, roles of the Courts, procedural hearing, memorials, document disclosure and discoveries (or no discovery) • The hearing and beyond: innovative procedures, experts, damages, reviews/appeals, enforcement and more Course Chairs: Barry Leon, Torys LLP Janet Walker, Osgoode Hall Law School, York University To Register: www.osgoodepd.ca Or Call: 416.597.9725 or 1.888.923.3394 Or E-mail: opd-registration@osgoode.yorku.ca Osgoode Professional Development, 1 Dundas Street West, Suite 2600, Toronto To order please quote code #40075-00 your C important because the Offi ce of the Children's Lawyer chose not to stand up for the children's wishes, so we sought to have their voice heard through the father who prior to our intervention had no representation." Th e OCL's position is set out in a Van Melle endorsement that states in part: "Mr. Beck, counsel for the Offi ce of the Children's Lawyer submits that even though the children expressed strongly that they wish to remain with their father, their best interests would not be met that way. . . . Th e Offi ce of the Children's Law- yer supports [the mother's] plan for the children." Indeed, the Offi ce of the Chil- dren's Lawyer opposed the sev- en-point temporary agreement hammered out by Wilson and Kurz, but Justice Steven Clark of the Ontario Court of Justice ap- proved it nonetheless. "Th roughout this matter, the Offi ce of the Children's Lawyer appears not to have been advo- cating the children's wishes, but instead advocating in support of what it sees as their best in- terests," Edgar says. Wilson brought a motion seeking costs of the settlement approval hearing from the Of- fi ce of the Children's Lawyer. In his factum, Wilson noted that the OCL was the only party op- posing the settlement. "In other words," he wrote, "the OCL argued that risk ex- isted with the plan proposed, even over the objection of the subject children's parents and the local children's aid society, and the children's aid society is the applicant party in the with- in proceeding and the only party expressly mandated with the obligation to safeguard children against the risk of harm." Wilson also noted that by arguing the children should be forced into therapy, the Offi ce of the Children's Lawyer took a position contrary to the position of the children it was appointed to represent. He added that the Children's Lawyer led no evidence regarding potential harm to the children from the temporary settlement, led no evidence as to the children's wishes, and did not have the children in court in ac- cordance with their "presumptive right" to be present "barring evi- dence of emotional harm," which was not adduced. But MacKinnon, in her re- sponding materials on behalf of the OCL, maintained it sought only to modify the settlement to assure the children's safety. She noted that the settlement did not obviate the risk of harm set out in the affi davit of a family service worker sworn the day before the parties reached agreement. "Th e position of children's counsel was reasonable and child focused," MacKinnon's factum stated. "In submissions, children's counsel advised the court the posi- tion on behalf of the children was made in a sincere eff ort to ensure that the family had the supports in place that were necessary for reunifi cation to be successful." Finally, MacKinnon sub- that mitted the Offi ce Fishing for a great Digital Pocket Memo? Setting new standards in advanced functionality and style for dictation of the Children's Lawyer's role cannot be equated with the role of counsel for an adult. "Th e Children's Lawyer does not take 'instructions' from chil- dren, but formulates a position taking into account the interest of the children," she wrote. "Th e concept of children's interests is a broad concept and may include consideration of multiple factors touching upon their welfare. Th e representation of the children's in- terest is not equated with present- ing only their articulated views and preferences to the court." None of the other parties sought costs against the Children's Lawyer, and the CAS has expressly stated that it did not consider that costs were appropriate here. Last week Clark sided with the Children's Lawyer, ruling MacK- innon's conduct came "nowhere close" to bad faith nor did it "come close" to "being unfair, indefensi- ble or exceptional." MacKinnon was doing no more than what "she sincerely believed was in the best interests of her clients" and acted "appropriately by exercis- ing due diligence in raising con- cerns about the agreement." Kurz says the Children's Law- yer was in a diffi cult position. "Th ey're between a rock and a hard place in a case like this," he tells Law Times. "Th e core question here was whether the children were stating their prefer- ences independently or whether they had been brainwashed by their father and brother. If so, it's not appropriate for the kids to be advocates for one party or another. So the OCL has to have some freedom from being drawn into the confl ict and that's what they've tried to do here." LT Help is here with the Philips 9600 • Real-Time File Encryption • 1.8" Backlit LCD • Easy One-handed Operation your LAW OFFICE PRODUCTIVITY source 1-888-393-3874 source E Priority Service Code: 09-08LT Untitled-4 1www.lawtimesnews.com ntitled-9 1 5/5/09 4:08:03 PM Fax: 1-800-263-2772 dyedurhambasics.ca S N &DURA H PREFERRED SUPPLIER I CE 1 9 9 5/27/09 11:58:24 AM D 8 M Y W e ' r e a C a n a p d i m a n o a n y

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