The Municipal Conflict of Interest Act states a member of a Council or Local Board must recuse themselves of any dealing involving their child.
Child, in the MCIA is defined as “a child born within or outside marriage and includes an adopted child and a person whom a parent has demonstrated a settled intention to treat as a child of his or her family”.
In this case, the Chair of a local Committee of Adjustment conducted a minor variance hearing in which the agent, who runs a home building company, is the child of the Chair’s separated partner. Debora Giffin has been separated from her former partner since 2005 but remains legally married to him.
Is this person a “child” under the MCIA?
Integrity Commissioner Guy Giorno analyzes the situation, the first of its kind, and determines he must decide if Giffin ever “demonstrated a settled intention to treat as a child” her partner’s child during their marriage.
Giorno determines that while they lived in the same household for seven years, they were never close and Giffin never demonstrated the settled intention to treat as her own child.
The ruling is an informative guide to applying municipal law, family law, and legislative intent to a specific circumstance.
As Giorno notes, the Ontario Legislature has intentionally taken a narrow definition of family interest to only include parents, spouse and children.
Section 3 states: “ For the purposes of this Act, the pecuniary interest, direct or indirect, of a parent or the spouse or any child of the member shall, if known to the member, be deemed to be also the pecuniary interest of the member.”
The MCIA does not include grandchildren, nephews, and other people who can be thought of as close relatives.
Prior to 1983, the Municipal Conflict of Interest Act stated “spouse, son, daughter or any other relative of a member of a council or local board who has the same home as such member” and added the present wording for child.
The decision to remove “the same home as the member” and define “child” including the phrase “settled intention to treat as a child” indicates clear legislative intent to not broadly capture all persons in the same household.
“In my view, this deliberate legislative choice is relevant to the breadth of the “child” definition. The MCIA does not cover the pecuniary interests of a sibling or grandparent, even one who lives in the same home as the member. The Legislature has chosen a precise, narrow, circumscribed scope. Consistent the narrow precision of the legislation, it only makes sense that a genuine family connection to the member, not a connection that was tenuous or weak, is necessary to make someone a member’s child under the “settled intention” language,” Giorno writes.
Thus, in this instance where there is no evidence that Giffin ever treated the child as her own, and all parties (Giffin, father, and child) express strongly there was no relationship, Giorno finds:
“While I believe it is possible that C might be considered a “child” of Ms Giffin within the meaning of the Municipal Conflict of Interest Act, and certainly there are some factors that support that conclusion, I find that the evidence is insufficient to establish, on the balance of probabilities, that C is “a person whom [the Respondent] has demonstrated a settled intention to treat as a child of his or her family.”
Being the first case defining child in this context, this interpretation will likely be adopted by other Integrity Commissioners in deciding conflict of interest cases.
Read the full report here: https://www.canlii.org/en/on/onmic/doc/2021/2021onmic32/2021onmic32.html