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November 2010 – Law Office of Thomas J. MacLennan

Month: November 2010

Canada ratified the United Nations Convention on the Rights of the Child in 1991.  Recently, a lot of attention has been placed on the Convention’s concept of “the voice of the child” and the right of a child to be heard in cases like custody disputes.

Article 12 of the Convention is of particular interest:

1. [countries]…. shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child. 

2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law. 

A lot of lawyers have taken the Convention to be consistent with the Children’s Law Reform Act (“CLRA”).  Section 24 of that Act requires the court, when assessing the best interests of a child in a custody dispute, to consider all the child’s needs and circumstances, including “the child’s views and preferences, if they can reasonably be ascertained”.

More recently, in the case of Bhajan v. Bhajan, the Court of Appeal has considered the issue of whether a court can give meaning to the right of the child to be heard by requiring the appointment of the Office of the Children’s Lawyer (“OCL”), even when the OCL declines to act.  In that case, the Court of Appeal held that judge’s should respect the OCL’s legislative framework, which permits the OCL to decline to act.

In the recent case of G. (B.J.) v. G. (D.L.), Justice Martinson of the Yukon Territory Supreme Court considered whether judges interviewing children was an appropriate way of having a child’s views heard.  Justice Martinson noted:

“More than just lip service must be paid to children’s legal rights to be heard. Because of the importance of children’s participation to the quality of the decision and to their short and long term best interests, the participation must be meaningful; children should:

1. be informed, at the beginning of the process, of their legal rights to be heard;

2. be given the opportunity to fully participate early and throughout the process, including being involved in judicial family case conferences, settlement conferences, and court hearings or trials;

3. have a say in the manner in which they participate so that they do so in a way that works effectively for them;

4. have their views considered in a substantive way; and

5. be informed of both the result reached and the way in which their views have been taken into account.”

Will Ontario courts follow suit?

The shift towards allowing children greater participation in disputes impacting on them, such as custody disputes, has greatly evolved over the past decade.  The trend is towards making the child’s right to be heard more meaningful, to the point where judges are considering the appropriateness of interviewing children — a rarity in the past.

Certainly, if judges are to respect the OCL’s power to decline involvement in a case (as directed by the Court of Appeal), conducting a judicial interview of a child may be the most appropriate method of hearing a child’s views.

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Generally speaking a successful party is entitled to his or her costs.  Usually, those costs will be awarded on a partial indemnity basis.  A party can obtain higher costs on a “substantial indemnity” basis by making an offer to settle and doing as well or better than the offer.  A successful party can be awarded even higher costs, on a full indemnity basis, if it can be shown that the other party has acted in bad faith.  Bad faith has been defined to mean acting with an ulterior motive intended to harm the other party.

Regrettably, it is not uncommon in family law cases to see people acting with ulterior motives to harm the other party — usually a spouse!

An award of costs on a “substantial indemnity” is usually made when a party makes an offer to settle and the outcome of the hearing is as good or better than the party’s offer.  However, in the recent case of Murphy v. Murphy, Justice Spies of the Ontario Superior Court found that an offer to settle must also contain an “element of compromise” before the court will award a higher level of costs.

In the Murphy case, one party offered to settle on the basis that the moving party would withdraw his motion and there would be no costs.  However, in order to do so, the offer required the moving party to accept the offer within 27 hours.  The offer provided that even if the motion was withdrawn after that time, the responding party would be entitled to her costs as “fixed by the court” (whatever that meant).

Ultimately the husband withdrew his motion, but only after the start of argument.

Justice Spies denied the successful party a higher costs award because there was no element of compromise in that party’s offer.  By giving the moving party only 27 hours to consider the offer, and then taking the position that costs would be payable thereafter, the offer contained no real element of compromise according to Justice Spies.

What was the element of compromise worth?  The wife claimed that her “full  indemnity costs” were $79,000.00.  Justice Spies awarded the wife $27,000.00.

This case is interesting because the Family Law Rules make no mention of the need for an element of compromise in offers to settle.  The court relied on case law authority from  a 2000 decision of Supreme Court of Canada in finding that such an element was required.

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