In an Ontario Court of Appeal case called Mwanri v. Mwanri, the couple had had two children together, both of whom were eventually in the sole custody of the father, with access to the mother. The parents had been involved in various motions and other court proceedings to settle some of their disputes around custody and access. In the latest round, the father took issue with an earlier order by the motion judge on various custody- and support-related matters.
From among several different grounds of appeal that he raised, the father complained that the motion judge’s order had included the following single line:
The parenting/access schedule in this Order shall be monitored by the Office of the Children’s Lawyer and both of the parents shall cooperate with the OCL’s counsel and follow his direction as to the interpretation of this Order.
This prompted a complaint by the father about whether the “follow his direction as to the interpretation” portion of the order was a legally-appropriate order for the motion judge to make since it seemed to require him to essentially take legal advice from the OCL’s own lawyer, thus constraining his right to consult a lawyer of his own.
The Court of Appeal disagreed with this line of reasoning (although it ultimately allowed part of the father’s appeal on different grounds altogether). The Court explained its conclusion this way:
…[C]ontrary to the father’s submission, nothing in the direction requires the father to seek or follow legal advice from the OCL’s lawyer. The direction stipulates that the parties are to co-operate with counsel for the OCL in respect of the interim custody and access arrangements ordered by the motions judge. It requires the parties to “follow his direction as to the interpretation” of the motions judge’s order. This language simply obliges the parties to follow the OCL’s direction in the event of any disagreement about the terms of the motions judge’s interim order. It in no way prevents either party from consulting with their own counsel and, if so advised, returning any matter of disagreement before the Superior Court for reconsideration or clarification. The parties remain free to retain, consult and instruct counsel of their choice on all matters in dispute.
It’s a narrow distinction, but do you think it is a valid one? Does the Appeal Court’s logic make sense?
For the full text of the decision, see: