DATE: 20011214 DOCKET: M27810/C36567
COURT OF APPEAL FOR ONTARIO
RE:
KIM NATHAN LOUIE and TODD SHELDON LOUIE (Plaintiffs/Appellants) – and – MELVIN DOUGLAS LASTMAN (Defendant/Respondent in Appeal)
BEFORE:
MORDEN J.A. *
COUNSEL:
Martha Mackinnon for the moving party, Canadian Foundation for Children, Youth and the Law
Sheila Block and Alexandra Clark for the responding party, defendant in appeal, Melvin Douglas Lastman
HEARD:
Written submissions filed by the moving and responding parties
E N D O R S E M E N T
[1] The Canadian Foundation for Children, Youth and the Law moves for an order under rule 13.03(2) granting it leave to intervene as a friend of the court in this appeal by the plaintiffs from a judgment of Benotto J., the reasons for which are reported at 2001 CanLII 28065 (ON SC), 54 O.R. (3d) 286 (S.C.J.). The motion has been argued in writing by the moving party and the respondent in the appeal. The appellants have not filed a factum but have notified the court that they support the motion.
[2] I am satisfied that sufficient has been shown to grant the order sought subject to the conditions set forth at the conclusion of this endorsement.
[3] The basic matters to be considered on a motion such as this are set forth in Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd. (1990), 1990 CanLII 6886 (ON CA), 74 O.R. (2d) 164 at 167 (C.A.), particularly “the issues which arise and the likelihood of the applicant being able to make a useful contribution to the resolution of the appeal without causing injustice to the immediate parties”.
[4] As far as the issues in this appeal are concerned, it may be noted from the appellants’ factum that the number of matters now in issue is reduced from the number argued before, and decided by, the motions judge. They now all relate to the submitted fiduciary obligations of the defendant to the plaintiffs and no longer include claims based on unjust enrichment or tort.
[5] The moving party has been granted intervenor status in many previous cases at all levels of tribunal and court. In family law matters it has represented youth who seek access to their siblings and it has significant experience representing youth in support applications against their parents. I refer now to some of the basic submissions it would make on the appeal.
[6] The moving party submits that the Family Law Act and the Divorce Act are not “complete codes” with respect to support owed by parents to their children. In making these submissions, it would refer to rights contained in the United Nations Convention on the Rights of the Child as they inform and complement the concept of “best interests” and to the effect of the ratification of the Convention on domestic law.
[7] Article 4 of the Convention requires state parties to undertake all appropriate legislative, administrative and other measures for the implementation of the rights recognized in the Convention. Article 3 provides that in all actions concerning children, public and private institutions, courts and administrative bodies and legislative bodies shall make the best interest of the child a primary consideration. Articles 5 and 12 outline the responsibilities of parents with respect to their children and the right of the child to be heard in proceedings affecting him or her. Article 9 provides that children have a right of access to their parents.
[8] The affidavit of Paul Wollaston, Chair of the moving party, concludes: “If granted leave to intervene, the proposed intervenors will rely on relevant domestic and international human rights obligations and will make reference to relevant statutes and common law principles relating to fiduciary duties, the best interests of children and the standing of children in processes which affect them.”
[9] The moving party intends to submit that biological parents, as such, without it being necessary to show they have assumed power (as held by the motions judge), have the power or discretion of a fiduciary. It intends to rely on international documents to inform its argument on the nature and scope of the relevant fiduciary obligations. On the same basis, it will submit that children have the right to know the identity of their biological parents unless it can be shown that it is not in their best interests that the identify be disclosed. In addition, once the identity of the parent is known, the child should be allowed to seek support in a timely way. Support entitlement should be retroactive to at least the date on which the parent knows that he or she is a parent, or reasonably ought to have known.
[10] The moving party submits that the resolution of the issues in this case, or, at least some of them, will have far-reaching consequences to a number of children in Ontario. In particular, all children are affected by a decision as to whether parents owe a fiduciary obligation to their children that exists independently of, and in addition to, any statutory duties with respect to child support. All children whose parents have separated are affected by a custodial parent’s decision to waive child support. Many children will be deeply affected by any decision with respect to a parent’s obligation to disclose his or her status as biological parent, if known. Children cannot (or can only with extreme difficulty) exercise their rights to support and access to their parents if their parents do not disclose their status as parent to the children.
[11] The general position of the responding party is that the moving party’s proposed submissions would be of no assistance in resolving the issues on the appeal. With respect, it appears to me that the thrust of the responding party’s submissions in this regard is that the proposed submissions of the moving party are not valid or are of little weight. I wish to make it clear that in granting intervenor status I do not express any view on the ultimate merit of the moving party’s position. I merely recognize that the moving party has considerable experience in the subject matter of the appeal, or certain aspects of it, which enable it “to place the issues in a slightly different perspective” (Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd., supra at 167) from that of the appellants.
[12] While it may be that the actual decision of the court in this appeal will have impact only on persons in exactly the same position as the plaintiffs, I do not exclude the possibility that aspects of, or steps in, the court’s reasoning could bear on the rights of other children and claims they may have against their biological parents. At the end of the day, the court may not consider the moving party’s submissions to be of assistance. As I have just said, I express no opinion on the merits of its position. What is important is that the court, before making its decision on the correct result and on the appropriate reasons that support this result, should have all of the relevant possibilities brought to its attention, including submissions on the impact on its judgment, not only on the parties, but on those not before the court whose positions may be similar to but not the same as the parties.
[13] I am satisfied that the intervention order can be made without causing any injustice to the responding party. It is true that the intervention will expand the number of submissions to which the responding party will be obliged to reply but this, which is for the potential benefit of the court, is not an injustice. Further, having regard to the conditions I attach to the intervention order, the responding party may be compensated for any increased costs resulting from the intervention but will not be liable for costs in connection with it.
[14] The conditions I impose are substantially those in Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd., supra.
[15] I grant leave to the moving party to intervene as a friend of the court on the following conditions:
that it takes the record as it is and will not be permitted to adduce further material;
that it will not seek costs on the appeal, but that costs may be awarded against it;
that it deliver its factum on or before January 15, 2002;
that the time for delivery of the respondent’s factum both in the appeal and in response to the moving party’s factum, is extended to February 22, 2002; and
that the time allocated for its oral submissions be fixed by the court hearing the appeal.
[16] The costs of this motion will be costs in the appeal.
“Morden J.A.”
- Designated by the Chief Justice of Ontario under s. 5(3) of the Courts of Justice Act, R.S.O. 1990, c. C. 43 to hear this motion.