Fiorito v Wiggins, 2014 ONCA 603

This case addresses the issue regarding the representation of the child in proceedings.

Background

The Appellant Mother moved for an order requesting the appointment of the Children’s Lawyer to act on behalf of three children, aged 12, 11 and 10 in this appeal. The Appellant Mother submitted that the Children’s Lawyer may engage an expert who may produce a report which could be of assistance to the Court in this appeal. The Respondent Father opposed the involvement of the Children’s Lawyer as the children have been assessed by multiple professionals over the course of proceedings and another assessment would be unnecessary and only distort the appeal process. The trial judge ordered a change in custody in the Respondent Father’s favour. The change in custody took place at the end of June 2013, and this appeal was brought for the first time more than a year thereafter.

Analysis

The Court of Appeal commenced its analysis by finding that the issue in this matter was whether “the trial judge erred in transferring custody” (paragraph 6). The Court held that “custody decisions are owed a high degree of deference” as “appellate courts do not have the advantages of a trial judge in making findings of fact upon contradictory evidence” (paragraph 6).

The Court of Appeal found that the appointment of the Children’s Lawyer would delay the hearing of the appeal. Furthermore, the Court found that if “as seems likely, the children take the position they want to live with their mother, counsel for the children would in large part be mirroring the submissions I would expect from the mother” (paragraph 6).

The children have been “exposed to countless therapeutic and social work interventions since separation in 2008” (paragraph 9). Despite this fact, the Court found that the children seem to be doing well. As such, the Court found that any advantages with respect to the involvement of the Children’s Lawyer for this care “are outweighed by the disadvantages” (paragraph 12). The delay in hearing the appeal that would result from the involvement of the Children’s Lawyer would “not be in the best interests of the children” as it would only carry the risk of “polarizing the children further in the contest between mother and father” (paragraph 13-14).

The Court of Appeal found that little weight may be given to the children’s views “if their preferences are the result of the mother’s deliberate attempts to ruin the children’s relationship with their father” (paragraph 16). The trial judge concluded that the disruption caused by the removal of the children from the Appellant Mother’s care against the children’s wishes was outweighed by the “value and importance to their best interests of ensuring that they had a close relationship with their father” (paragraph 16). As such, the Court of Appeal dismissed the motion to request the assistance of the Children’s Lawyer.