The Court has the power to appoint counsel, at the Crown’s expense, to assist a disabled adult being the subject of private access and custody proceedings

Perino v. Perino 2009 CarswellOnt 7935, just reported in the Ontario Reports (99 O.R. (3d) 575, comes to the somewhat unexpected conclusion that the Superior Court has the power to appoint private counsel for a disabled adult and fix remuneration payable by the Crown in private access and custody matters.

 

The decision, which is very carefully drawn, is based on the general parens patriae power of the Court.  The judge was very careful to limit the scope of the decision, although it has already been referred to with approval in another case (Walton v. Sommerville  2010 ONSC 2765).  The judge* in the case is well respected and gave detailed reasons – the case is well worth reading.  A key passage reads:

 

"37          In Eve, Re, the Supreme Court of Canada described the parens patriae jurisdiction in broad terms:

 

 

From the earliest time, the sovereign, as parens patriae, was vested with the care of the mentally incompetent. This right and duty... is founded on the obvious necessity that the law should place somewhere the care of persons who are not able to take care of themselves. In early England, the parens patriae jurisdiction was confined to mental incompetents, but its rationale is obviously applicable to children....

 

The parens patriae jurisdiction is... founded on necessity, namely the need to act for the protection of those who cannot take care of themselves. The courts have frequently stated that it is to be exercised in the "best interest" of the protected person, or again, for his or her "benefit" or "welfare".

 

... [T]he categories under which the jurisdiction can be exercised are never closed.... [T]he jurisdiction is of a very broad nature, and... it can be invoked in such matters as custody, protection of property, health problems, religious upbringing and protection against harmful associations. This list... is not exhaustive.[FN11]

 

 

…

39          The issue before me does not involve Ms. Perino's physical integrity, but it is central to her well-being. Most custody and access orders are, by their nature, transitory. The children will grow up and make their own way. That may not be what the future holds for Marisa Perino. She may be subject to custody and access arrangements for her entire life. The determination of where and with whom she will live, possibly for her entire life, is deeply personal and important.

 

40          The Supreme Court of Canada found that "independent representation" was essential to a fair proceeding in a case like Eve. I find it no less essential to the case before me."

 

* To forestall concerns, yes, I know all judges are strong … .