Bhajan v. Bhajan et al., (2010) 269 O.A.C. 335 (CA)

• Judge: Weiler, Blair, MacFarland, LaForme and Watt, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: September 03, 2010
• Jurisdiction: Ontario
• Citations: (2010), 269 O.A.C. 335 (CA);2010 ONCA 714

Bhajan v. Bhajan (2010), 269 O.A.C. 335 (CA)

MLB headnote and full text

Temp. Cite: [2010] O.A.C. TBEd. OC.057

Daveanand Bhajan (applicant/respondent in appeal) v. Sandora Bhajan (respondent/respondent in appeal) and The Children's Lawyer (appellant)

V.V. (applicant/respondent in appeal) v. M.V. (respondent/respondent in appeal) and The Children's Lawyer (appellant)

Djeane MacDonald (applicant/respondent in appeal) v. Brian MacDonald (respondent/respondent in appeal) and The Children's Lawyer (appellant)

A.C.B. (applicant/respondent in appeal) v. R.B. (respondent/respondent in appeal) and The Children's Lawyer (appellant)

Seng Hock Goh (applicant/respondent in appeal) v. Chao-Hsia Linda Wen (respondent/respondent in appeal) and The Children's Lawyer (appellant)

Wendy Feldman (applicant/respondent in appeal) v. Jean-Pierre Boue (respondent/respondent in appeal) and The Children's Lawyer (appellant)

(C51273; C51316; C51832; C52167; C52133; C52169; 2010 ONCA 714)

Indexed As: Bhajan v. Bhajan et al.

Ontario Court of Appeal

Weiler, Blair, MacFarland, LaForme and Watt, JJ.A.

October 28, 2010.

Summary:

In six cases, a Superior Court judge exercised the court's parens patriae jurisdiction and ordered (rather than requested) the Office of the Children's Lawyer (OCL) to act under s. 89(3.1) (as legal representative) and s. 112 (to investigate and report) of the Courts of Justice Act. The OCL appealed the orders.

The Ontario Court of Appeal allowed the appeals. Assuming, without deciding, that Superior Court judges could, in the appropriate circumstances, exercise their parens patriae jurisdiction to order the OCL to act, it was not appropriate for the judge to exercise the court's parens patriae jurisdiction in these six cases.

Courts - Topic 2004

Jurisdiction - General principles - Inherent jurisdiction (incl. parens patriae jurisdiction) - In six cases, a Superior Court judge exercised the court's parens patriae jurisdiction and ordered (rather than requested) the Office of the Children's Lawyer (OCL) to act under s. 89(3.1) (as legal representative) and s. 112 (to investigate and report) of the Courts of Justice Act (CJA) - The OCL appealed the orders - The Ontario Court of Appeal concluded that "[a]ssuming, without deciding, that Superior Court judges can, in the appropriate circumstances, exercise their parens patriae jurisdiction to order the OCL to act, that jurisdiction ought not to have been exercised in these six appeals. The Superior Court judge ought to have respected the structure of ss. 89(3.1) and 112 in the CJA, which give the OCL discretion in considering requests for their involvement. He ought not to have circumvented the existing statutory structure for engaging the OCL. Prior to exercising his parens patriae jurisdiction to make an order, it was incumbent on the Superior Court judge to consider and avail himself of the other available avenues for assistance that were responsive to the specific factual problems before him" - Accordingly, the court allowed each of the appeals in the manner indicated - See paragraph 79.

Courts - Topic 2020

Jurisdiction - General principles - Correction of legislative oversights - [See sixth Courts - Topic 7406 ].

Courts - Topic 7406

Provincial courts - Ontario - Superior Court - Jurisdiction - Family law (not divorce) - In the six cases under appeal, a Superior Court judge exercised the court's parens patriae jurisdiction and ordered the Office of the Children's Lawyer (OCL) to act - The Ontario Court of Appeal noted that when a judge was of the opinion that independent legal representation for a child was required or the judge required further information concerning the child's needs in a custody dispute, the general practice was to make an order of referral to the OCL requesting the Children's Lawyer to provide such services under ss. 89(3.1) and 112 of the Courts of Justice Act, as the OCL deemed appropriate - In the end result, the court held that it was not appropriate for the judge to exercise the court's parens patriae jurisdiction in these six appeals - See paragraph 1.

Courts - Topic 7406

Provincial courts - Ontario - Superior Court - Jurisdiction - Family law (not divorce) - The Ontario Court of Appeal held that it was not appropriate for a Superior Court judge to exercise its parens patriae jurisdiction to order the Office of the Children's Lawyer (OCL) to investigate or to represent children under ss. 89(3.1) and 112 of the Courts of Justice Act - The values in the United Nations Convention on the Rights of the Child informed the interpretation of legislation concerning children, specifically, articles 3 and 12 - Although the Convention had not been specifically incorporated into domestic law, "the values reflected in the Convention can help to inform the contextual approach to statutory interpretation and judicial review" - See paragraphs 12 to 14.

Courts - Topic 7406

Provincial courts - Ontario - Superior Court - Jurisdiction - Family law (not divorce) - At issue on these six appeals was whether it was appropriate for a Superior Court judge to exercise its parens patriae jurisdiction to order the Office of the Children's Lawyer (OCL) to investigate or to represent children under ss. 89(3.1) and 112 of the Courts of Justice Act - The Ontario Court of Appeal held that it was not appropriate for the judge to exercise the court's parens patriae jurisdiction in the six appeals - Existing jurisprudence held that it was within the discretion of the OCL to decide whether to become involved - The court referred to its decisions that held that ss. 89(3.1) and 112 were permissive, not imperative, and accordingly, the OCL had the discretion to decide whether to cause an investigation to be made and whether to report and make recommendations to the court on the matters of custody and access - See paragraphs 15 and 16.

Courts - Topic 7406

Provincial courts - Ontario - Superior Court - Jurisdiction - Family law (not divorce) - The Ontario Court of Appeal held that it was not appropriate for a Superior Court judge to exercise its parens patriae jurisdiction to order the Office of the Children's Lawyer (OCL) to investigate or to represent children under ss. 89(3.1) and 112 of the Courts of Justice Act (CJA) - Existing legislation implemented the values in the United Nations Convention on the Rights of the Child and reinforced the conclusion that the OCL had discretion as to whether or not to act - "In deciding whether, in accordance with the Convention, a mechanism exists for the child's voice to be heard in proceedings affecting him or her, the CJA should not be considered in isolation ... The fact that other avenues exist for children to be heard in proceedings affecting them reinforces the conclusion that the provisions in the CJA respecting the OCL are discretionary. The court's existing jurisprudence respecting the interpretation of the OCL's role under ss. 89(3.1) and 112 of the CJA does not require reconsideration" - See paragraphs 17 to 21.

Courts - Topic 7406

Provincial courts - Ontario - Superior Court - Jurisdiction - Family law (not divorce) - The Ontario Court of Appeal stated that "[a]ssuming, without deciding, that absent words clearly ousting the Superior Court's inherent parens patriae jurisdiction, the Superior Court has the power to order the OCL [Office of the Children's Lawyer] to act outside the CJA [Courts of Justice Act], it is reasonable to assume that the legislature intended that judges would respect the legislative scheme and not create a parallel procedure. To order and not request the OCL to act ignores the discretion embodied in the wording of the CJA and the underlying reason for that discretion. The OCL has limited resources and it, not the court, is in the best position to decide when and how to utilize its limited resources. Failure to respect the legislative scheme by pre-empting the exercise of the OCL's discretion is an error in principle" - See paragraphs 23 and 24.

Courts - Topic 7406

Provincial courts - Ontario - Superior Court - Jurisdiction - Family law (not divorce) - The Ontario Court of Appeal considered the question of when it was appropriate for a Superior Court judge to exercise the court's parens patriae jurisdiction, and concluded that the parens patriae jurisdiction "must be exercised in a principled manner; it should not be exercised when other effective alternative remedies exist; it should not be used to second guess or to pre-empt a decision within the mandate of the OCL [Office of the Children's Lawyer]" - The principles that emerged from the case law included that the court's "general inherent power is always available to fill gaps or to supplement the powers of the statutory authority but the court should not supervise the exercise of discretion within the field committed by statute to the particular authority, except perhaps, by judicial review where appropriate" - See paragraphs 25 to 29.

Courts - Topic 7406

Provincial courts - Ontario - Superior Court - Jurisdiction - Family law (not divorce) - The overarching issue on these six appeals was whether it was appropriate for a Superior Court judge to exercise its parens patriae jurisdiction to order the Office of the Children's Lawyer (OCL) to represent children or to investigate and report under ss. 89(3.1) and 112 of the Courts of Justice Act (CJA) - The Ontario Court of Appeal stated that "The Superior Court's power to exercise its inherent parens patriae jurisdiction is not specifically ousted by sections 89(3.1) or s. 112. Parens patriae is the power of the court to act in the stead of a parent for the protection of a child" - Further, "the exercise of the court's parens patriae jurisdiction is a very fact specific exercise" - In the end result, the court allowed the appeals and set aside the mandatory orders - See paragraphs 23 and 32.

Courts - Topic 7406

Provincial courts - Ontario - Superior Court - Jurisdiction - Family law (not divorce) - The Office of the Children's Lawyer (OCL) appealed six orders of a Superior Court judge made in the exercise of his parens patriae jurisdiction, including an order wherein the OCL was ordered "to appear and represent the interests of the child" (Bhajan v. Bhajan) - The Ontario Court of Appeal set aside the mandatory order - The order was made prior to any consideration of the case by the OCL under the Courts of Justice Act and pre-empted the exercise of the OCL's discretion - Although the comments of the OCL's lawyer in court gave the judge reason to think it might decline to take the case, he ought not to have pre-empted the OCL's statutory discretion by exercising his parens patriae jurisdiction and at the same time making a request in the standard form for the OCL to act - The court confirmed the standard form order - See paragraphs 32 to 43.

Courts - Topic 7406

Provincial courts - Ontario - Superior Court - Jurisdiction - Family law (not divorce) - A Superior Court judge, in the exercise of his parens patriae jurisdiction, ordered the Office of the Children's Lawyer (OCL) "to represent the said children" (Vaseekaran v. Vaseekaran) - A stay of the order was granted pending appeal, and an order was made in the standard form, requesting the OCL to act - The Ontario Court of Appeal held that the Superior Court judge erred by pre-empting the discretion of the OCL, and set aside the mandatory order - It was not impracticable to make an order in the usual form requesting the OCL to act - The presumptive administrative delay occasioned by the OCL's intake policy was not an appropriate basis for the judge to exercise his parens patriae jurisdiction in this case - The court confirmed the order in the standard form - See paragraphs 44 to 51.

Courts - Topic 7406

Provincial courts - Ontario - Superior Court - Jurisdiction - Family law (not divorce) - This was an appeal of the order of a Superior Court judge, wherein the Office of the Children's Lawyer (OCL) was ordered to "assist the court and represent the interests of the children" (MacDonald v. MacDonald) - The OCL relied on, among other grounds, the fact that, at the time, no issue of custody or access was before the court, but simply an application for possession of the matrimonial home - The Ontario Court of Appeal stated that "Although there must be a custody or access dispute before the court for the OCL to investigate and report pursuant to s. 112(1) of the CJA [Courts of Justice Act], s. 89(3.1) respecting the appointment of a legal representative contains no such requirement. It simply states, '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.'" - See paragraph 56.

Courts - Topic 7406

Provincial courts - Ontario - Superior Court - Jurisdiction - Family law (not divorce) - This was an appeal of the order of a Superior Court judge, wherein the Office of the Children's Lawyer (OCL) was ordered to "assist the court and represent the interests of the children" (MacDonald v. MacDonald) - The Ontario Court of Appeal set aside the order - As the judge noted, the father's allegations of excessive force by the mother against the children were unsworn - The judge could have told the father that the court could not act on unsworn evidence, and that the issue of custody was not before him - The judge could have enquired whether the father had made the Catholic Children's Aid Society (CCAS) aware of his allegations and asked what other, if any, steps the father had taken - "The Superior Court judge ought to have dealt with the application on the evidence before him ... The evidence indicated the CCAS was involved and had chosen not to remove the children from the mother's care" - See paragraphs 60 to 62.

Courts - Topic 7406

Provincial courts - Ontario - Superior Court - Jurisdiction - Family law (not divorce) - In A.C.B. v. R.B., there was a custody and access proceeding before a Superior Court judge that the parties had resolved, and they were seeking a consent court order - The judge concluded that it was necessary for the court to exercise its parens patriae jurisdiction, and ordered the Office of the Children's Lawyer (OCL) to "investigate and report on the issue of custody and access of this child, or show cause within 30 days why it would not be appropriate for it to do so" - The Ontario Court of Appeal substituted an order in the standard form - The "danger" that the judge was concerned about (the father had been found not criminally responsible for the murder of his own father) was not the kind of danger that required the exercise of the court's parens patriae jurisdiction; the court had available to it other means to obtain the information it sought - For the same reason, the court also held that the judge erred in concluding that there appeared to be a gap in the legislative process - See paragraphs 63 to 68.

Courts - Topic 7406

Provincial courts - Ontario - Superior Court - Jurisdiction - Family law (not divorce) - The Superior Court judge, in Goh v. Wen, held that the "high conflict" between the parties (who continued to reside in the same house) involved a risk of harm to their children, ages 15 and 12 - The judge exercised the court's parens patriae jurisdiction, and ordered the Office of the Children's Lawyer (OCL) to "investigate and report" - The OCL would not consider the case as no standard form order was received - The parties ending up settling without OCL input - A stay pending appeal of the order was granted - The subject of appeal was whether the judge could order, as opposed to request the OCL to act, with the OCL taking the position that he could not - The Ontario Court of Appeal held that the appeal was moot - In any event, it was not necessary for the judge to exercise the court's parens patriae jurisdiction as other alternatives existed, including the appointment of an expert to provide a custody and access assessment under s. 30 of the Children's Law Reform Act - See paragraphs 69 to 75.

Courts - Topic 7406

Provincial courts - Ontario - Superior Court - Jurisdiction - Family law (not divorce) - A Superior Court judge ordered the Office of the Children's Lawyer (OCL) to "investigate and report" (Feldman v. Boue) - Another judge had previously made an order in the standard form (i.e., requesting the OCL to act), but the OCL refused to become involved - When a judge again made an order requesting OCL involvement, the parties were advised that the case could not be considered without a recent standard form order - The Superior Court judge held it was necessary to exercise the court's parens patriae jurisdiction, and made the mandatory order and an order in the standard form - The OCL refused the case, after applying the usual intake criteria - The Ontario Court of Appeal set aside the mandatory order - The judge erred in principle by initiating a parallel procedure to circumvent the OCL's intake procedures and to preclude it from exercising its discretion meaningfully - As the children were older, he could have considered making an order for independent representation under rule 4(7) of the Family Law Rules or an order under s. 30 of the Children's Law Reform Act - See paragraphs 76 to 78.

Statutes - Topic 513

Interpretation - General principles - Omissions - [See sixth Courts - Topic 7406 ].

Statutes - Topic 515

Interpretation - General principles - International convention - Effect of - [See second Courts - Topic 7406 ].

Statutes - Topic 1628

Interpretation - Extrinsic aids - Other statutes - Other statutes respecting same subject matter - [See fourth Courts - Topic 7406 ].

Statutes - Topic 2404

Interpretation - Interpretation of words and phrases - General principles - Words which have received a judicial construction - [See third Courts - Topic 7406 ].

Statutes - Topic 5105

Operation and effect - Enabling acts - Permissive acts - What constitutes a permissive power - [See third Courts - Topic 7406 ].

Cases Noticed:

R. v. O'Connor (H.P.), [1995] 4 S.C.R. 411; 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1, refd to. [para. 8, footnote 1].

Beson et al. v. Director of Child Welfare (Nfld.), [1982] 2 S.C.R. 716; 44 N.R. 602; 39 Nfld. & P.E.I.R. 246; 111 A.P.R. 246, refd to. [para. 9].

D.N. et al. v. Children's Aid Society of the Niagara Region et al., [2004] O.A.C. Uned. 622 (C.A.), consd. [para. 26]; refd to. [para. 9, footnote 2].

A.A. v. B.B. et al. (2007), 220 O.A.C. 115; 83 O.R.(3d) 561 (C.A.), consd. [para. 27]; refd to. [para. 10].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 14].

Child and Family Services of Winnipeg Central v. K.L.W. et al., [2000] 2 S.C.R. 519; 260 N.R. 203; 150 Man.R.(2d) 161; 230 W.A.C. 161; 2000 SCC 48, refd to. [para. 14].

United States of America v. Burns and Rafay, [2001] 1 S.C.R. 283; 265 N.R. 212; 148 B.C.A.C. 1; 243 W.A.C. 1; 2001 SCC 7, refd to. [para. 14].

A.P. v. L.D., [2001] R.J.Q. 16 (C.A.), refd to. [para. 14].

C.U. v. McGonigle et al. (2003), 327 A.R. 25; 296 W.A.C. 25; 223 D.L.R.(4th) 662; 2003 ABCA 66, refd to. [para. 14].

Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] 1 S.C.R. 76; 315 N.R. 201; 183 O.A.C. 1; 2004 SCC 4, refd to. [para. 14].

Director of Child and Family Services (Man.) v. A.C. et al., [2009] 2 S.C.R. 181; 390 N.R. 1; 240 Man.R.(2d) 177; 456 W.A.C. 177; 2009 SCC 30, refd to. [para. 14].

N.D. v. M.D. (2004), 184 O.A.C. 193; 1 R.F.L.(6th) 132 (C.A.), refd to. [para. 15].

Bubovich v. The Children's Lawyer, [2005] O.A.C. Uned. 494; 19 R.F.L.(6th) 16 (C.A.), refd to. [para. 15].

N.N. v. M.M. et al., [2007] O.A.C. Uned. 479; 45 R.F.L.(6th) 267 (C.A.), refd to. [para. 15].

Eve, Re, [1986] 2 S.C.R. 388; 71 N.R. 1; 61 Nfld. & P.E.I.R. 273; 185 A.P.R. 273, consd. [para. 25].

C.R. v. Children's Aid Society of Hamilton (2004), 8 R.F.L.(6th) 285 (Ont. Sup. Ct.), consd. [para. 26].

A. v. Liverpool City Council et al., [1981] 2 All E.R. 385 (H.L.), refd to. [para. 29].

Statutes Noticed:

Children's Law Reform Act, R.S.O. 1990, c. C-12, sect. 24(1), sect. 24(2)(b) [para. 18]; sect. 30 [para. 19].

Courts of Justice Act, R.S.O. 1990, c. C-43, sect. 89(3.1), sect. 112 [para. 3].

Courts of Justice Act Regulations (Ont.), Family Law Rules, Reg. 114/99, rule 4(7) [para. 20].

Family Law Rules - see Courts of Justice Act Regulations (Ont.).

United Nations Convention on the Rights of the Child, Can. T.S. 1992, No. 3, generally [para. 6]; art. 3, art. 12 [para. 12].

Authors and Works Noticed:

Carthy, James J., Millar, W.A. Derry, and Cowan, Jeffrey G., Ontario Annual Practice 2010-2011 (2010), pp. 120, 121, 122 [para. 35].

Counsel:

Katherine Kavassalis and Martha Héder, for the appellant;

Martha Mackinnon and Andrea Gatti, for the intervenor, Justice for Children and Youth;

No one appearing, for the respondents.

These six appeals were heard on September 3, 2010, by Weiler, Blair, MacFarland, LaForme and Watt, JJ.A., of the Ontario Court of Appeal. In reasons written by Weiler, J.A., the Court of Appeal released the following judgment on October 28, 2010.