BACKGROUND:
This was a motion brought by the maternal grandparents of two children, ages 7 and 5, seeking to be added as parties to the family law proceeding initiated by the parents of the children and asked for a contact order with respect to the children.
The Applicant parent opposed the motion, while the Respondent parent consented to adding the grandparents as parties but submitted that a contact order was premature at the time.
The grandparents brought this motion based on having specific evidence regarding the best interests of the children. They argued that without party status, their ability to provide such evidence will be restricted by what evidence the parents choose to call. Additionally, they had a claim for contact with the children and argued that bringing a separate action for relief would lead to a multiplicity of proceedings, increasing cost and delay for everyone involved.
ISSUE:
- Should the court grant the maternal grandparent’s motion to be added as parties to the proceeding?
- Should a contact order be made in favour of the grandparents?
ANALYSIS:
The court examined Marsden v Marsden (2020 ONSC 1166), K.M.J. v K.A.J. (2015 ONSC 5293) and Zaidi v Zaidi (2026 ONSC 1577), specifically the different approaches taken to address the issue of adding parties. In doing so, the court set out three common essential elements to be considered when determining whether a moving party should be added as a party to a proceeding:
- Adding a party should not be done as a matter of course. The party’s addition is driven by “necessity”.
- If the person has an interest or claim which would be affected by the outcome of the proceeding, it will generally be appropriate that they be added as a party;
- In considering whether to add a party, the court should consider delay, multiplicity of proceedings, fairness and where appropriate, the impact of any order on the best interests of the impacted children.
Based on these elements, the court found that it was inappropriate to add the grandparents as parties to the proceeding for the sole purpose of them controlling which evidence they wished to lead on the wider parenting issues. In their decision, the court stated that parenting decisions are between the Applicant and the Respondent. Permitting third parties, including extended family members, friends or other community members, to frame the issues and evidence is inappropriate and would ultimately lead to increased delays and conflict. Furthermore, the court noted that much of the evidence that the grandparents wished to introduce would be inadmissible either way, since it was hearsay evidence from the children.
However, the court found it appropriate to add the grandparents as parties with respect to their claim for a contact order since the grandparents have their own interests to submit for adjudication. If not added as parties to this proceeding, the grandparents would be able to commence their own separate Application, of which the issues would be intertwined with the parents’ ongoing parenting disputes. Also, any contact order would be relevant to determining the parenting schedule.
Furthermore, the court found that adding the grandparents as parties could result in some delay, however bringing their own application and seeking to have the matters tied together would result in delay and procedural complexity.
The court applied a prima facie case standard without making factual determinations. The Applicant parent argued that the grandparent could not meet the three-part test for a contact order as set out in B.F. v. A.N. (2024 ONCA 94) and should therefore, not be added as parties. In response, the court stated that a motion seeking to add parties is akin to one seeking to amend pleadings. As such, the court may review proposed claims to weed out clearly frivolous or meritless cases, particularly where the issue engages best interests of children, but should not make factual determinations.
Given the fact that the Applicant parent and the maternal grandparents have contrasting narratives regarding their involvement with the children, the court could not determine which narrative may be made out at trial. However, the court found that if the grandparents’ narrative were to be accepted, their claim for a contact order could succeed. Given this, the court found that the contact order sought by the grandparents had enough merit to not be prevented at this point.
CONCLUSION:
The court added the maternal grandparents as parties to the proceeding, with the caveat that they shall not participate in any of the issues between the spouses except parenting time, to the extent this is connected with their request for contact orders. Furthermore, the court held that the grandparents should participate in the upcoming Settlement Conference, where the presiding judge shall determine whether a further Case Conference with respect to the grandparent’s contact claim is required or whether the goals of that conference have been satisfied.
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Categories: Divorce, Grandparents, Children, Parenting time, Contact Orders