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This is a truly unique judgment handed down by the Ontario Superior Court of Justice. We have commented about this matter before as the parties have been disputing about custody, access and their respective financial obligations arising from their separation for over a decade now. During the course of this litigation, we see the court make orders that deviate significantly from the traditional courses action taken by the courts in matters of this nature.

In this case, the parties separated in 1998 and there are two children of the marriage. The two boys are currently 19 and 16 years of age. The older son has resided with the father since 2004 and the younger one has lived with the father since 2006.

At first there was an arbitration decision giving the mother full custody of the children and the ability to force the younger child and the father to participate in a Family Workshop. The Order also forbid the father from having contact with the younger child, outside of therapy, for three months after the completion of the Workshop, and forbid the older child from having contact, outside of therapy, with the younger child if he decided not to participate in the Workshop.

The Father immediately filed a notice of appeal and unsuccessfully applied for a stay in the Court of Appeal for the arbitration decision. Days later, through his own counsel, the child brought an application to intervene as an added party on the appeal and a further application for stay of the arbitration order. The latter stay was granted by Epstein J.A. of the Ontario Court of Appeal on the grounds that the child's age prevented the court from denying him a right to be heard as he has a substantial interest in the matter. Epstein J.A. ordered that the matter be stayed until the Court of Appeal decided whether the child should be allowed to intervene in the Appeal.

Pursuant to r. 13.01(1) of the Rules of Civil Procedure a person who is not a party to a proceeding may move for leave to intervene as an added party if the person claims,

  1. an interest in the subject matter of the proceeding;
  2. that the person may be adversely affected by a judgment in the proceeding; or
  3. that there exists between the person and one or more of the parties to the proceeding a question of law or fact in common with one or more of the questions in issue in the proceeding.

Although meeting one of the above criteria would be sufficient, in this case, the court found that the child satisfied all three. In particular, the subject of the proceedings is custody, and the child clearly maintains an interest in this matter. As the child may be adversely affected by the judgment of the trial judge or should he fail to abide by any orders of the court he may be adversely affected as a result of such contempt, the second claim can also be made successfully. Lastly, the questions of fact and law in the proceeding are common to his parents and to him.

The Mother attempted to lift the stay on the grounds that she would refrain from having the child participate in any Workshops pending the outcome of the Appeal. However, the court decided that "the balance of convenience favours maintaining the stay until the appeal is heard". In particular, the Mother's undertaking would not help her foster a relationship with the child as was the purpose of the Order in the first place. Attending counseling was ordered so that the Mother and child could receive the assistance they required to mend their relationship.

In the end, while under certain limitations, the court allowed the child to intervene as an added party to the appeal as he was directly affected by the outcome of the trial. Traditionally, children are represented in divorce or separation proceedings through the Office of the Children's Lawyer. In this case, due to the mature age of the child, independent counsel was allowed to represent the child. While the child's advanced age justifies his desire to be heard in these proceedings, it also complicates matters further. In particular, by the time this matter comes before the court again, the child's perception of the Mother will have been even more tainted. Alternatively, the child will be nearing the age of majority before he ever begins to develop a relationship with his Mother. In either case, the decision further hinders the chances of the Mother having the relationship she desires with her child.