The Ontario Court of Appeal has dismissed a motion requesting the assistance of a Children’s Lawyer in an ongoing custody battle involving three young girls, says Toronto family lawyer Brian Ludmer, of LudmerLaw.

In Fiorito v. Wiggins, the appointment of a Children’s Lawyer was requested by the wife,  says the endorsement, who argued the lawyer

could consult an expert to evaluate the children, which could assist the court.

In the decision, Justice Gladys Pardu referenced previous findings from the trial judge, who held the mother had “engaged in an unremitting course of attempting to poison the children against their father,” which was “profoundly harmful” to them.

“The trial judge found that the mother empowered the children to behave in an abusive and disrespectful manner towards their father,” the endorsement reads.

After a finding of contempt did not persuade the mother to change this behaviour, the judge transferred custody of the children to the father, writes Pardu. The girls’ relationship with their father improved, but they continued to “regress after contact with the mother or her extended family.”

The father, represented by Ludmer, opposed the involvement of a Children’s Lawyer, stating his daughters, aged 12, 11 and 10, had already been assessed by multiple professionals over the course of litigation and during two five-week trials.

“The change in custody took place at the end of June 2013, and this motion is brought for the first time more than a year later,” says the endorsement, summarizing the father’s position. “Appointment of the Children’s Lawyer will delay hearing of the appeal.”

It’s likely the children would take the position of wanting to live with their mother, writes Pardu, and therefore counsel for the children “would in large part be mirroring the submissions” from the mother.

The children have been exposed to many therapeutic and social work interventions since the parents’ separation in 2008, says the endorsement,  noting the girls appear to be doing well on academic, social and emotional levels.

The possibility of new evidence stemming from a report and investigation by a Children’s Lawyer “risks distorting the appeal process,” writes Pardu.

“Furthermore, exposing the children to yet more social workers or psychologists may exacerbate the difficulties for the children associated with the litigation and parental conflict,” the decision says. “Little weight may ultimately be given to the children’s positions if their preferences are the result of the mother’s deliberate attempts to ruin the children’s relationship with the father.”

The appointment would also carry the risk of “polarizing the children further in the contest between mother and father,” says the endorsement. “In this case, it might set back the progress the father has started to make in normalizing his relationship with his daughters.”

The decision touches on several important areas of family law and appellate litigation, says Ludmer.

“First, the decision recognizes that appointing counsel for children should not be done as a matter of course. Secondly, it recognizes that there is a fundamental distinction between evidence that was available for use at the trial level but was not discovered until later (‘fresh evidence’) and evidence arising  after completion of a trial, which is generally not admissible into the appellate process,” says Ludmer. “Thirdly, the decision touches on the issue of challenging the capacity of children in conflicted family situations to instruct counsel and the weight to be placed on the views and preferences of triangulated children.”

Far too often, Ludmer states, there is unchallenged adherence to advice from social workers retained by the Office of the Children’s Lawyer.

“Under the applicable law of evidence, those reports are not formal assessment reports and can and should be challenged if proper investigations are not done  or erroneous results concluded,” advises Ludmer.

Pardu concluded “that whatever advantages involvement of the Children’s Lawyer might have for this case are outweighed by the disadvantages. The delay in the hearing of this appeal which would likely result from involvement of the Children’s Lawyer at this late stage would not be in the best interests of the children.”

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