Ontario's top Court confirms Children's Lawyer's Discretion

A short decision will be sure to quell those clients who quip about the Office of the Children's Lawyer (i.e. OCL) not get involved in their case despite a Judge making an Order under sections 89(3.1) and 112 of the Courts of Justice Act.

A quick review by the Ontario Court of Appeal in Novoa v. Molero, 2007 ONCA 800 found at http://www.ontariocourts.on.ca/decisions/2007/november/2007ONCA0800.htm will help practitioners advise their clients that the legislation that gives life the OCL also gives it essentially unfettered discretion and what is even better from their perspective when they decline they do not have to give reasons.

I reproduce the sections below:

Sections 89(3.1) and 112 of the Courts of Justice Act, supra, read as follows:

89(3.1) At the request of a court, the Children’s Lawyer may act as the legal representative of a minor or other person who is not a party to a proceeding.

112(1) In a proceeding under the divorce Act (Canada) or the Children’s Law Reform Act in which a question concerning custody or access to a child is before the court, the Children’s 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 and the child’s support and education. [emphasis added]

The word “may” is permissive, not imperative. Accordingly, the use of the word “may” in ss. 89 (3.1) and s. 112 of the Court of Justice Act makes it clear that the Children’s Lawyer has the discretion to decide whether to cause an investigation to be made and the discretion whether to report and make recommendations to the court on the matters of custody and access.

So that is that!