Office of the Children’s Lawyer and Temporary Custody Orders: O’Connor v O’Connor, 2017 ONCJ 48

In this case, Parent J. of the Ontario Court of Justice addressed the role of a report from the Office of the Children’s Lawyer (OCL) in light of conflicting requests from the parents. This begs the question; how much weight and relevance should be given to an assessment report when making a temporary order?

Background

Shanae O’Connor and Christopher-Paul O’Connor have two children together, and they consented to an order that provided that the father would have access to the children every Sunday, and this access would not take place at his mother’s home. The OCL accepted a referral to provide a report, which indicated serious problems that occurred during the father’s visits with the children and some visits took place at Mr. O’Connor’s mother’s home. Mrs. O’Connor stopped enabling access because of the OCL’s recommendation that she should have sole custody of the children and Mr. O’Connor should have professionally supervised access once a week.

After receiving this report, Mrs. O’Connor made a motion to set aside the previous order and to implement the recommendations of the OCL in a new order. In response to this, Mr. O’Connor brought a motion seeking to expand his access to his children, to remove the access conditions in the existing temporary order, and for make-up visits. Essentially, Mr. O’Connor disagreed with the report and argued that the issues discussed in the report should be left for trial. He claimed that the report was biased and based on false information about his mental health status. The OCL submitted a response to this accusation stating that no factual errors have been found in the report.

Analysis

Justice Parent, in considering both parties’ motions, had to consider which order was in the best interests of the children. Both parties relied on the general principle in the case of Genovesi v Genovesi that assessment reports should only be relied upon for making a temporary order in very special circumstances. These reports are usually not relied upon by the court at an interim proceeding because the author of the report has not yet been cross-examined on her credentials, observations, investigation process and recommendations.

Furthermore, Mr. O’Connor argued that the recommendations should not be considered by the court for the purposes of this motion. Mrs. O’Connor argued that the general rule in Genovesi has evolved through more recent cases to allow this sort of report to be considered. She relied on the case of Bos v Bos in which Mitrow J. stated that the Genovesi principle 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.” Further, Mitrow J. stated that the court has a duty to make orders in a child’s best interest and it would be contrary to this fundamental principle to impose a prohibition against considering assessment reports.

Ultimately, Parent J. found that there was a basis of serious concern for the children if unsupervised access visits continued between the children and Mr. O’Connor, and the recommendations should therefore be implemented immediately. Although Mr. O’Connor was entitled to cross-examine the author of the OCL report as a witness, he chose not to and did not dispute the author’s qualifications. In the end, Justice Parent was satisfied that Mrs. O’Connor provided a reasonable amount of evidence to show the existence of very special circumstances to apply the OCL recommendations in the form of a temporary order.

Andrew Feldstein

The Feldstein Family Law Group (FFLG) is one the largest family law firms that practices Family Law exclusively in Greater Toronto, with ten lawyers and counting. The boutique law firm has won the Top Choice Award for Family Law™ in Toronto for the past eleven years (2007 to 2017 inclusive).

Managing Partner Andrew Feldstein has been practicing family law for more than 20 years and frequently comments on Family Law issues through the media. The Feldstein Family Law Group offers vast written, video, and media resources on its website to those who find that they need to end their relationship.

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