Court File and Parties
COURT FILE NO.: FD 1486/12 DATE: 2016 April 15 SUPERIOR COURT OF JUSTICE – ONTARIO FAMILY COURT
RE: Jennifer Breen, Applicant AND: Christopher MacArthur, Respondent
BEFORE: McSORLEY J.
COUNSEL: Yervant Boghossian for the Applicant Hamoody Hassan for the Respondent Camille Riggs for the proposed added Party
HEARD: March 30, 2016
Endorsement
Introduction:
[1] The matter before the court involves a motion by the respondent Christopher MacArthur for an order that the applicant Jennifer Breen’s fiancé, Adam Brock, be added as a party to the ‘motion to change’ proceedings commenced by Mr. MacArthur. In the motion to change, Mr. MacArthur has included a claim for a restraining order against Mr. Brock. Mr. MacArthur has also brought an interim motion for a restraining order against Mr. Brock that is set to be heard on May 11, 2016.
Issue:
[2] The only issue before the court at this time is whether it is necessary to add Mr. Brock as a party to these proceedings in order that the court can decide all of the issues in the case?
Analysis:
[3] Rule 7 of the Ontario Family Law Rules provides that a person who makes a claim or against whom a claim is made is a party to the case. Rule 7(3) provides that a person who starts a case shall be named as an applicant and persons against whom a claim is made shall be named as a respondent.
[4] Rule 7(3) goes on to state that a person who starts a case shall name every other person necessary for the court to decide all of the issues in the case. Mr Brock was not a party in the original proceedings that led to the order that Mr. MacArthur now seeks to change. As such Mr. Brock was not named as a party in the motion to change proceedings. Mr. MacArthur sought an order pursuant to Rule 7(5) to have Mr. Brock added as a party.
[5] Rule 7(5) states that the court may order that any person who should be a party shall be added as a party and may give directions for service on that person. The rule gives the court discretion with respect to whether a person is added as a party. The rule itself provides no criteria or direction as to how the court should exercise its discretion. There can be no doubt that the court has the discretion to add persons as parties to a case. However, that discretion should be used sparingly and only when necessary for the just determination of the litigation.
[6] The motion to change deals primarily with custody and access issues. The situation between the mother and father has become very acrimonious. Mr. MacArthur deposed that Mr. Brock ‘put himself’ out there and became the go-between for communications between Mr. MacArthur and Ms. Breen. There is no dispute to this fact. However, Mr. Brock deposed in his material that he was not the sole communicator between the parties, but was just one of the communicators. He deposed that at times Mr. MacArthur would communicate with the mother of the children and during those times, Mr. Brock did not interfere. Mr. Brock also deposed that it was Mr. MacArthur who enlisted Mr. Brock’s assistance, indicating that he wanted to deal “man to man” with Mr. Brock and wanted to “just” “talk to you about everything”. There are text messages from Mr. MacArthur confirming these statements. It was clear from the attached communications that both Mr. Brock and Ms. Breen communicated with Mr. MacArthur about the children with very little difficulty. The examples of the communication between Mr. MacArthur and Mr. Brock set out in Mr. Brock’s material were not only cordial, but could be considered a very good example of communication that should take place between separated parents.
[7] Mr. Brock also assisted Mr. MacArthur with transporting the children for the purposes of Mr. MacArthur’s parenting time during a period when Mr. MacArthur was unable to drive due to a conviction of driving while impaired. Mr. MacArthur certainly did not complain about Mr. Brock’s involvement when it was to his advantage.
[8] In February 2016, Hannah advised her mother and Mr. Brock that she had seen her father using drugs during a visit. Hannah also indicated that she did not want to go to her father’s home anymore. The mother contacted the police and the CAS and related what Hannah had reported to her. An investigation was begun by CAS. Initially, this was the only allegation known to the mother and Mr. Brock.
[9] On February 3, 2016, Mr. Brock contacted the paternal grandmother at her place of business and advised that there was a family emergency and that he needed to speak with her and Mr. MacArthur. He invited the paternal grandmother and father to his office to discuss the issues. That invitation was declined and instead Mr. Brock was invited to the father’s and grandmother’s place of business. Mr. Brock attended their office and advised both of them of the allegations made by Hannah regarding her father’s drug use.
[10] During this discussion, the father became agitated and began yelling and swearing at Mr. Brock. Mr. Brock then left the office and went home.
[11] On February 3, 2016 the father wrote a letter to the mother and Mr. Brock indicating that he had spoken with his lawyer and agreed that Hannah and Jack should “not come over until the Children’s Aid has interviewed and investigated this situation”. He went on to say that he would not be contacting the mother or Hannah and Jack until he had spoken to the Children’s Aid worker. He asked that they advise the worker that he would meet with them as their earliest convenience.
[12] On February 9, 2016, a social worker from the Children’s Aid Society attended the home where the children lived with their mother. The worker spoke with both children privately. The worker reported that Jackson gave detailed information regarding marijuana, a glass pipe, and a tray on which the father kept his marijuana, on a shelf in his father’s bedroom. When the worker spoke with Hannah, in addition to talking about drugs in her father’s home, she reported that she had been inappropriately touched at her father’s home while she was in bed and that while the ‘touching’ was occurring, she pretended to be asleep.
[13] As a result of this allegation, the society worker contacted the police. On February 10, 2016, both children were interviewed at the police station. Following the interviews, the mother and Mr. Brock were advised of the investigation process and were informed that the police would contact the father. The police officer and society worker advised the mother and Mr. Brock that they not give the children to their father until the investigation was completed.
[14] Contrary to Mr. MacArthur’s material, it was not the mother or Mr. Brock who made allegations of sexual abuse by the father. Neither the mother nor Mr. Brock was aware of such allegations until Hannah reported them to the social worker. Without any proof or even firsthand information, Mr. MacArthur claimed that Mr. Brock made unfounded allegations of sexual abuse against him and that since he was interfering with Mr. MacArthur’s relationship with his children he should be made a party to these proceedings. Mr. Brock had acted merely as the messenger, when he advised the father and grandmother of the allegations of drug use made by the children. Mr. Brock had undertaken that role at the request of Mr. MacArthur.
[15] Mr. MacArthur took the position that Mr. Brock should never have attended Mr. MacArthur’s place of employment and that one of the reasons for the request for a restraining order was to prohibit Mr. Brock from attending Mr. MacArthur’s home or place of employment or communicating with him in any way. According to Mr. Brock, he attended the father’s place of business on February 3, 2016 only after the father and grandmother refused to attend Mr. Brock’s place of business and invited him to attend their office instead. On February 19, 2016, Mr. Hassan sent a letter to Mr. Brock prohibiting him from entering Mr. MacArthur’s place of business or his home, and noting that if he did so, he would be prosecuted under the Trespass to Property Act.
[16] Although there was no restraining order in place as of February 19, 2016, Mr. Brock deposed that he has had no contact with the respondent father or members of his family since receiving that letter. He has not acted as a go-between and he has not delivered the children to Mr. MacArthur. Mr. Brock has been co-operative and compliant with Mr. MacArthur’s requests. Mr. MacArthur refers in his affidavit to a threat made by Mr. Brock in 2012. Without commenting on the merits of that claim, the fact is that since that time Mr. MacArthur and Mr. Brock have worked and communicated well together for the benefit of the children, at the request of Mr. MacArthur.
[17] Mr. MacArthur also claims that Mr. Brock was in court on February 26, 2016 and participated in those proceedings. It is clear from the transcript that Mr. Brock did not address the court until he was asked a question by the presiding Justice. It would have been both difficult and inappropriate for him to ignore a question from the bench directed specifically at him. After a short break to allow Mr. Brock to speak to duty counsel, Mr. Brock indicated that he needed an adjournment to find a lawyer and prepare responding material. The court discussed this with Mr. Brock and made sure that Mr. Brock knew that the issues were serious and that the court would decide those issues based on the best interests of the children. Again, it was the court that engaged Mr. Brock in a conversation, asking him questions, and allowing him to reply.
[18] Mr. Brock had little choice in the matter having been served with a motion to have him added as a party. Had he ignored the motion, it is likely that the father would have argued that Mr. Brock was taking no position, and that the order could be made unopposed. One cannot summon a person to court and then use the fact that they attend and make their position known to the court, as support that they are involved in the litigation and should be made a party.
[19] The father presented a draft order to the court on February 26, 2016. Mr. Brock made no comments about the contents of that order and the order was not made on consent.
[20] The only possible claim against Mr. Brock is the claim for a restraining order. Mr. MacArthur has brought a motion seeking an interim restraining order, which will be heard on May 11, 2016. Mr. Brock does not need to be named as a party to the proceedings in order to participate in that motion or for the court to deal with the interim motion.
[21] Rule 14(3) provides that a person who is affected by a motion is also a party, for the purposes of the motion only, except children who may be affected by a motion relating to custody, access, child protection or child support.
[22] This rule makes it very clear that if Mr. Brock is affected by a claim made in the interim motion, he becomes a party for the purposes of the motion only, and for no other purpose. He is not required to be added as a party to the application. A good analogy of how this rule is meant to work can be seen in third party record motions. A litigant may need disclosure of records held by a third party (i.e. CAS, Police) for the purpose of proving his/her claim for custody. The record holders must be given notice of a motion for disclosure of their records and are entitled to take a position on the motion and make submissions. They are not, however, added to the main application and their involvement ends once the motion for records has been dealt with. To suggest otherwise would mean that much litigation between parents would spiral out of control by the need to add every person or entity to the main proceedings because they may be affected by an interim motion.
[23] Therefore, Mr. Brock need not be and should not be added as a party to these proceedings for the purposes of the interim motion. He automatically becomes a party for the purpose of the motion only, but that status ends when the motion has been decided.
[24] The larger question is whether Mr. Brock should be added as a party to the main proceedings. The court does not believe that his addition as a party is either necessary or that it would assist the court in determining the real issues between the parents.
[25] Both parties filed books of authorities. Mr. Hassan’s book of authorities contained 4 cases, although he referred only to the case at tab 3.
[26] At Tab 1 of his book of authorities, the case of Hughes v. Hughes, 2007 ONSC 10905, 85 O.R. (3d) 505 dealt with Rule 1(8) of the Family Law Rules. During the evidence in that case, the court learned that the husband was in breach of a temporary order. On learning this, the court utilized Rule 1(8) to strike the husband’s answer and counterclaim and allowed the matter to proceed on an uncontested basis. Although the court accepts that it has the power to impose consequences for failure to comply with a court order, Mr. Brock is not subject to a court order and has not disobeyed any court order in this matter, to date.
[27] Certainly if Mr. Brock was a party to this action, the court could make orders against him. But the lis in this matter is between the mother and father of the children. The court accepts that Mr. Brock stepped in as a go between at the request of the father and stepped away from that position, again at the request of the father. Any order made will bind the mother and father and can be enforced by the court. Mr. Brock need not be added as a party for that purpose.
[28] The second case in the father’s book of authorities, (Children’s Aid Society of London and Middlesex v. P. (J.), 2000 ONSC 20732) dealt with a motion by foster parents to be added as parties to child welfare proceedings. One of the reasons for the request was that the mother of the child had claimed the foster parents injured the child in their care and the foster parents wished to be made parties in order to clear their name.
[29] Marshman J. held that the foster parents should not be made parties to the action because: 1) no formal complaint about the injury had been made; 2) the society believed the mother or her partner injured the child; and 3) the court suspected that the real motive of the foster parents was to improve their chances of having the child placed with them on a permanent basis. Marshman J. noted in her decision that persons should only be added as parties if that person’s presence is “necessary to determine the matters in issue”. She went on to state that the discretion in Rule 7(5) should be exercised “very sparingly” and noted that family court cases would become unwieldy if courts exercise a broad discretion to add parties who have an interest in the outcome but who are not legally affected by it.
[30] Mr. Brock is the fiancé of the mother. He and the mother live together with the children in issue in this matter and a child that they have had together. He, of course, has an interest in how things are resolved, but his participation, other than perhaps as a witness, is not necessary to resolve the issues between the parents.
[31] The court is also concerned that the real motive behind Mr. MacArthur’s motion to add Mr. Brock as a party, is to force the mother and Mr. Brock to expend large amounts of money on legal fees. Mr. Brock has retained a separate lawyer to deal with this motion. To avoid any potential conflict, Mr. Brock would likely have to continue to retain a lawyer separate from Ms. Breen. The resulting costs of paying two lawyers to deal with issues that are between the parents could have a seriously deleterious financial effect on their family unit, causing potential harm to the children.
[32] In the case of Gifford v. Gifford, 2010 ONSC 147, at tab 3 of the respondent father’s book of authorities, the applicant wife sought to add a 3rd party to a matter dealing with equalization between the husband and wife. In that case, the husband was claiming a debt of $65,000.00 by way of a promissory note executed and given to the 3rd party. Her position was that the husband and 3rd party had executed the promissory note in order to create the illusion of a debt that did not exist.
[33] In that case, the holder of the promissory note was added as a party to the proceedings in order to avoid multiplicity of proceedings and inconsistent verdicts and increased legal fees. It should be noted that the existence of a $65,000.000 debt or lack of one would have had a significant bearing on the equalization calculations. In the case before me, the parents are litigating issues of custody and parenting time. Whether a restraining order is granted or not, will have no bearing on the issues between the parents that is before the court.
[34] In the last case in the respondent’s book of authorities, Weinert v. Weinert, 2005 ONSC 3478, the step-father of a child sought to add the biological father of the child in proceedings that dealt only with child support issues. The court added the biological father since he was equally or potentially more liable to support his child than the step-father. That is not the situation dealing with parenting time and custody issues in this case. The issues are between the parents and Mr. Brock’s involvement is unnecessary in the proceedings.
[35] Mr. Brock’s solicitor also filed a book of authorities. At Tab C, in the case of Children’s Aid Society of London and Middlesex v. S.H., S.W., and D.R., 2002 ONSC 46218, Justice Campbell dealt with a motion by maternal grandparents to be added to a protection application regarding two children. The mother had advised the CAS that she wanted to have the children adopted. Two months later, the grandparents came forward seeking party status and permission to file an answer and plan of care.
[36] Campbell J. held that he had to consider the following principles before adding a party to a child protection hearing:
- Whether the addition of the party is in the best interests of the child;
- Whether the addition of the party will delay or prolong proceedings unduly,
- Whether the addition of the party is necessary to determine the issues, and
- Whether the additional party is capable of putting forward a plan that is in the best interests of the child.
[37] Campbell J. came to the conclusion that the grandparents should be added as a party, placing significant weight on subsection 57(4) that requires the court to consider the “possibility” that placement with a relative or extended family member will be the least restrictive alternative available. He held that the proceedings constituted a life-changing event for the very young children involved.
[38] The case before the court contains a very different set of circumstances. These are not child protection proceedings. The parents are not proposing that the children be given away for adoption, thus ending their connection with their biological family. The proposed added party has no plan to put forward separate from that of the mother. The matter before the court is a motion to change the custody, primary residence, and parenting time of the parents. Adding Mr. Brock will have no effect on the best interests of the children; the addition of Mr. Brock will likely result in the matter becoming more complicated and expensive than it currently is; his addition is not necessary for a determination of the issues; and the last factor does not apply.
[39] The case of Slater v. Slater and Nathanson, 2010 ONSC 450 set out at Tab B of Mr. Brock’s book of authorities, the respondent Nathanson brought a motion to be removed as a party in proceedings where Mr. Slater sought an order to terminate his spousal support obligations to Mrs. Slater.
[40] Czutrin J. found that Mr. Nathanson did not have to be a party in order that his income be disclosed. He and Mrs. Slater were residing together and Mrs. Slater’s financial statement would have to disclose Mr. Nathanson’s income. The court went on to state that even if Mr. Slater established the necessary threshold to change support, he had no claim against Mr. Nathanson. It was held that Mr. Nathanson and Mrs. Slater’s living and financial arrangements might be a factor if the threshold is met, but their living arrangement was not in itself either a catastrophic, foreseen or unforeseen change in circumstances.
[41] At paragraph 29, Czutrin J. noted:
“If, to terminate a spousal support obligation, it will become commonplace to add new spouses as parties, as this case suggests, family litigation will be more adversarial and more costly; it will incur greater delays; and, it will potentially interfere with, and potentially jeopardize, intact relationships.”
[42] The court agrees with this statement. The stress and pressure that will be put on the mother’s intact family, including the two children who are the subjects of this litigation will be significant. If both adults in the home are required to retain counsel and expend both money and effort to defend this litigation, their relationship, family and home may be jeopardized. That is not in the best interests of the children.
[43] The court is not satisfied that it is necessary to add Mr. Brock to these proceedings. He will by virtue of Rule 14(3) be a party to the motion that seeks relief against him. He may take whatever steps he believes are necessary to deal with that motion. However, the main action regarding custody, primary residence and parenting time is between Ms. Breen and Mr. MacArthur as the parents of Hannah and Jack. Mr. Brock plays a supportive role to Ms. Breen and has assisted Mr. MacArthur in the past by communicating for him to Ms. Breen and undertaking extra transportation of the children when Mr. MacArthur was unable to do so. Adding Mr. Brock as a party to the main action will increase costs and time and will not assist the court in deciding the issues that are important for the best interests of the children.
[44] Therefore, an order will go, dismissing the motion to add Mr. Brock as a party to the proceedings.
[45] If the parties are unable to resolve the issue of costs of this motion, they may make submissions in writing, limited to five pages. Mr. Brock’s submissions are to be served and filed on or before May 2, 2016. Mr. MacArthur’s submissions are to be served and filed on or before May 20, 2016. If reply submissions from Mr. Brock are necessary, he shall serve and file them on or before May 27, 2016.
[46] The matter is adjourned to the special appointment already scheduled on May 11, 2016.
“Justice Margaret A. McSorley” Justice Margaret A. McSorley Date: April 15, 2016