If you are in the midst of a custody or access dispute, you may have heard of the Office of the Children’s Lawyer, or the “OCL”. The OCL is a government body that has the power to investigate, report, and make recommendations to the court on matters concerning custody of or access to a child.
How Does the OCL Get Involved?
The OCL will only get involved in matters that are before the court. If litigation has commenced and one of the issues in dispute is child custody or access, either party can ask a judge to make an order requesting the involvement of the OCL. You can do this at your next court appearance (e.g. a case conference) or you can bring a Motion asking for the order. Once the order has been made, each party has 14 days to complete the Intake Form and mail or fax it to the OCL. The OCL will then decide if they will accept your case (the court order is a request only – the OCL has the discretion to decide whether to get involved or not). If they accept your case, they will also decide whether to assign a lawyer, a social worker, or both. Generally, social workers are appointed for children under the age of 10 and lawyers are appointed for children over the age of 10.
What Does the OCL Do?
Section 112 of the Courts of Justice Act sets out the OCL’s power to investigate, report, and make recommendations to the court with regard to custody and access of a child.
Once appointed, the OCL will meet with, observe, and speak to the children, the parents, and other relevant people, such as teachers and doctors, to determine recommendations for custody and access. The OCL will work with the parties to try to reach an agreement that they believe is in the children’s best interests. If the parties cannot agree, the OCL will advise the court of their position and the court will decide what is in the children’s best interests.
A report may also be completed that provides details of the investigation and sets out the recommendations with regard to custody and access. This report will be filed with the court. If a party does not agree with the recommendations or something else in the report, they have 30 days to file a statement disputing anything in it.
When is the Involvement of the OCL Not Appropriate?
The OCL will not accept a case if any of the following applies:
- The child does not live in Ontario;
- The child and/or either parent/party does not reside where the action is being conducted;
- There is an outstanding or anticipated order for assessment or mediation, or an assessment or mediation is pending;
- An assessment has been completed about custody and access in the year preceding the request;
- A review of the case history indicates that there have been multiple assessments or protracted litigation with little possibility of resolution;
- There are serious mental health concerns with respect to either parent and/or child, and a mental health assessment has not been undertaken or completed;
- Support and/or property issues are the primary concerns and the custody and access arrangements have been relatively stable for an appreciable period of time (e.g the cusody and access issues are not pressing);
- The primary purpose is to obtain evidence to further the litigation;
- Other resolution efforts should have occurred and have not been attempted;
- The child’s situation would not be improved, e.g. where the issue is “joint” v. “sole” custody, or where an unrealistic time-sharing plan is being sought, or an applicant seeks to change custody to resolve an access problem, or both parties reside in the matrimonial home etc.;
- One or both parties allege abuse and/or neglect and the local Children’s Aid Society (CAS) is investigating or should be asked under the Child and Family Services Act to investigate the allegations;
- The CAS is or has been involved and has taken a position as to the custody/access arrangements; or
- The purpose is to update an OCL’s report that has been filed with the court.
If you think the appointment of the Office of the Children’s Lawyer may be appropriate in your matter, it is important that you speak to an experienced family law lawyer. The courts give significant weight to the recommendations of the OCL, so it is important that you properly review the pros and cons before you ask the court to request their involvement. The talented lawyers at Radley Family Law can help you decide what is best for you and your children.