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Custody Disputes and the Role of the Office of the Children’s Lawyer

Custody Disputes and the Role of the Office of the Children’s Lawyer

In family law custody matters, the function of the provincial Office of the Children’s Lawyer (OCL) is to report back to the Ontario Superior Court with its determinations relating to the best interests of children. As such, the OCL has the important role of ensuring that children are given independent legal representation in connection with custody disputes that involve them.

However, the Ontario Court of Appeal has recently held that while a Superior Court can request the OCL’s involvement, that court has no jurisdiction to order it.

In a case called Bhajan v. Bhajan, the lower court had mandated the OCL to act in six separate custody disputes before it, relying on the general inherent jurisdiction of all Canadian courts to protect and make decisions for children and other individuals who are similarly incapable of doing so in the legal sense.

In hearing the appeal from that decision, the Ontario Court of Appeal reviewed a wide range of sources, including the legislation governing the general jurisdiction of family courts, various federal and provincial Acts and Rules that govern family matters, and even the values behind the United Nations Convention on the Rights of the Child to which Canada is a signatory. It concluded that although the Superior Court has the right to request the OCL’s involvement in family custody matters, the OCL retains the discretion to decline to act. In such cases, the court may only ask the OCL to reconsider its refusal or to consider other alternatives.

The Court of Appeal’s judgment is framed against the backdrop of the already-staggering case load of the OCL, which entertains a large number of requests from Ontario family courts dealing with matters governed by both provincial and federal legislation. Indeed, in making its decision the Appeal Court considered the OCL’s submission that to allow courts to force the OCL’s participation by way of court order would open a “floodgate” in terms of workload, and would render the OCL unable to function properly.

Read the Court of Appeal’s full decision in Bhajan v. Bhajan at http://bit.ly/fEV1TQ