International Law

The Office of the Children's Lawyer is a law office in the Ministry of the Attorney General which delivers programs in the administration of justice on behalf of children under the age of 18 with respect to their personal and property rights. Lawyers within the office represent children in various areas of law including child custody and access disputes, child protection proceedings, estate matters and civil litigation. Clinical investigators prepare reports for the court in custody/access proceedings and may assist lawyers who are representing children in such matters.

[4] The OCL submits that the Superior Court judge who made the six orders from which appeal is taken exceeded his jurisdiction and erred in invoking the parens patriae jurisdiction of the Superior Court. The Superior Court judge ought to have requested a legal representative pursuant to s. 89(3.1) or a social work report from the OCL pursuant to s. 112 of the CJA and, if that request was refused, asked the OCL to reconsider its refusal or to consider other alternatives. The OCL?s position is further that the Superior Court judge could only invoke the court?s parens patriae jurisdiction to fill a legislative gap which, the OCL submits, does not exist in light of ss. 89(3.1) and 112 of the CJA. Thus, the judge could not order the OCL to act.

[5] Even if the court had the power to exercise its parens patriae jurisdiction, the OCL submits that that jurisdiction ought not to be exercised as, to do so, would open the ?floodgates? and the OCL would be unable to function properly. At the oral hearing before us, the OCL sought leave to introduce fresh evidence in the form of an affidavit by Ms. Denal Moyal, the Legal Director of the Personal Rights Department and acting Children?s Lawyer at the time. The intervener, Justice for Children and Youth (JFCY) consented to the affidavit being filed as fresh evidence. In her affidavit, Ms. Moyal deposed that between April 1, 2009 and August 25, 2010, the OCL received 5,548 referrals from judges across Ontario. Of those, 1,873 were from the Ontario Court of Justice and 3,673 were from the Ontario Superior Court of Justice. Five hundred and eighty-two of the 5,548 referrals came from judges sitting in Northern Ontario. Sixty-eight per cent of these orders were made by Ontario Court of Justice judges. During this same period, the OCL accepted a total of 3,432 cases across Ontario. Based on this affidavit, the thrust of the OCL?s argument appears to be that if Superior Court judges do have parens patriae jurisdiction and exercise it in the manner the Superior Court judge has done in these cases, the OCL would be ordered to act in so many cases that it would no longer be able to meet the requests made by Ontario Court of Justice judges, (who do not have parens patriae jurisdiction) particularly those in Northern Ontario.