S.G.B. v. S.J.L. [Indexed as: B. (S.G.) v. L. (S.J.)]

102 O.R. (3d) 796

2010 ONCA 578

Court of Appeal for Ontario,

Laskin, Sharpe and LaForme JJ.A.

September 8, 2010

Family law -- Practice -- Appeals -- Trial judge finding that father had deliberately alienated child from mother -- Trial judge ordering that custody of child be transferred from father to mother and authorizing mother to obtain any treatment she considered necessary for child's best interests -- Father appealing -- Trial judge granting stay of order pending appeal on motion by child -- Mother's motion to set aside stay dismissed -- Balance of convenience favouring maintaining stay for short time until appeal was heard -- Child's motion for leave to intervene as added party to appeal granted.

The trial judge found that the father had deliberately and severely alienated the parties' two children from the mother. The elder child was over the age of majority. The trial judge ordered that custody of the younger child, J, be transferred from the father to the mother and authorized the mother to obtain any treatment she considered necessary for J's best interests. The father appealed. On a motion by J, the trial judge granted a stay of her order pending appeal. The mother brought a motion to set aside the stay. J brought a motion for leave to intervene as an added party to the appeal.

Held, the mother's motion should be dismissed; J's motion should be granted.

The balance of convenience favoured maintaining the stay for the short period of time remaining until the appeal was heard.

J satisfied all three of the requirements for leave to intervene as an added party set out in rule 13.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, any one of which would be sufficient. Moreover, granting leave to intervene was justified as the trial judge's order had the potential to dramatically change J's life and he was entitled to be heard, and as it would benefit the panel to hear J's perspective on the important and difficult issues raised by the trial judge's order.

MOTION by the mother to set aside the stay of the order of Mesbur J. (2010), 2010 ONSC 3717, 102 O.R. (3d) 197, [2010] O.J. No. 2856; MOTION by the child for leave to intervene as an added party to father's appeal from the order.

Cases referred to B. (S.G.) v. L. (S.J.), [2010] O.J. No. 3619 (C.A.) Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 13.01(1), (2) [page797]

Jan D. Weir, for appellant. Harold Niman and Jaret Moldaver, for respondent. Jeffery Wilson, for J.B.

BY THE COURT: -- (1) The Motions

[1] On August 17, 2010, the panel heard two motions in this pending appeal. The first was a motion by the mother, S.J.L., to review and set aside the stay of the trial judgment ordered by Epstein J.A. The second was a motion by the child, J.B., for leave to intervene as an added party to the appeal brought by his father, S.G.B.

[2] Following argument, the parties discussed settlement and asked that we not release our decision on the motions while those discussions were ongoing. We agreed to the parties' request. We did, however, fix a date for the hearing of the appeal in the event the matter was not settled. That date is Wednesday, September 29, 2010.

[3] The parties, apparently, have been unable to settle this matter. They have therefore asked us to deliver our decision. What follows is our decision on the two motions and our brief reasons. (2) The Litigation

[4] The mother and father separated in 1998. They have two boys, L.B., who is 19, and J.B., who is 16 and the subject of the litigation between the parents. L.B, the older boy, has lived with the father since 2004; J.B. has lived with his father since 2006.

[5] The parents have been in litigation over their children and their financial matters for a decade. The trial that gives rise to the appeal before this court took place before Mesbur J. over four days in May 2010. The principal issue at trial was the custody of the younger boy, J.B.

[6] The mother sought an order transferring custody of J.B. from the father to her. She claimed that the father had orchestrated a deliberate and abusive campaign to alienate the two boys from her. She contended that the father had sought to undermine and destroy her relationship with her sons. She asked that she be allowed to take J.B. for intensive therapy at [page798] Family Bridges: a Workshop for Troubled and Alienated Parent-Child Relationships. As the trial judge noted, whether the mother ought to be authorized to take J.B. to this Workshop informed the entire litigation.

[7] In lengthy and thorough reasons, the trial judge accepted the mother's position. She affirmed what previous adjudicators had found: the father had deliberately and severely alienated the two boys from their mother. The trial judge recognized that L.B. is over the age of majority. But she held that J.B., who has special needs and is in school full-time, remains a child of the marriage and thus subject to a custody order.

[8] The trial judge's order concerning J.B. is far-reaching. She ordered that custody of J.B. be transferred to the mother and that any contact or communication between J.B. and his father (and others) be prohibited for three months, after which time she would entertain a motion to terminate or vary the non- contact order. To ensure compliance with this non-contact order, she gave the mother discretion to confiscate and prevent J.B.'s use of cellphones, pagers, Blackberries and computers. Importantly, the trial judge ordered that the mother be authorized to obtain any treatment she considered necessary for J.B.'s best interests, including participation in the Workshop. (3) The Review of the Stay Order

[9] The trial judge released her order and reasons on June 30, 2010. The father immediately filed a notice of appeal and sought a stay of the trial judge's order. On July 2, Watt J.A. dismissed the father's stay motion.

[10] However, four days later, J.B., who was not a party at trial, brought his own stay motion (through counsel). On July 7, Epstein J.A. granted a stay pending appeal [[2010] O.J. No. 3619 (C.A.)]. The mother now asks us to review and set aside this stay. She argues that it was obtained by lies and fraud, and ought not to be permitted to stand. She undertakes, as a condition of setting aside the stay, not to take J.B. to the Workshop pending the disposition of the appeal.

[11] We do not think it is necessary to discuss in any detail the arguments for and against setting aside the stay. In our view, the balance of convenience favours maintaining the stay until the appeal is heard. In practical terms, a "stay" or the status quo has been in effect for two months. The time between now and the hearing of the appeal is short. The order under appeal, as we have said, is far-reaching. The mother's undertaking, though well-intentioned, does not advance her position because, as the trial judge said, this case is about trying to repair the relationship [page799] between mother and son, and the Workshop may be the only hope for doing so. Transferring custody of J.B. to the mother while denying access to the Workshop or other intensive therapy may not be in J.B.'s best interests. On the other hand, we recognize that, on the trial judge's findings, permitting the father's continued custody of J.B. is also not in the child's best interests. Still, considering that the appeal is but three weeks away, we think the prudent course is to dismiss the motion for review. The stay ordered by Epstein J.A. will remain in effect pending the hearing of the appeal. (4) The Intervention Motion

[12] J.B. seeks leave to intervene as an added party on the appeal. The mother opposes the motion. A motion of this kind is highly unusual in a custody dispute. Typically, if the child is to be heard, an application would be made for the appointment of the Children's Lawyer to represent the child. That was not done here, and we can only presume that the reason was tactical.

[13] A motion for leave to intervene as an added party is governed by rule 13.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194:

13.01(1) A person who is not a party to a proceeding may move for leave to intervene as an added party if the person claims, (a) an interest in the subject matter of the proceeding; (b) that the person may be adversely affected by a judgment in the proceeding; or (c) 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.

[14] J.B. satisfies all three elements of rule 13.01(1), any one of which would be sufficient. He obviously has an interest in the subject matter of the proceeding: his custody. He may be adversely affected by the judgment of the trial judge or of this court in the sense that he may object to the terms of his custody and may not obey one or more of those terms. Finally, the questions of fact and law in the proceeding are common to his parents and to him.

[15] However, even if one or more of the elements of rule 13.01(1) is made out, the court still has discretion to refuse to make the intervention order. Ordinarily, in a custody case we would think an order permitting a child who is the subject of the dispute to be added as a party would rarely be made.

[16] But this is not an ordinary case. In our view, granting the intervention motion is justified for two reasons. First, J.B. is [page800] now 16 years of age. Even accepting the expert evidence at trial that he has the emotional maturity of a 13 year old, he is an intelligent young man and has reached the age where his voice is entitled to be heard by this court. Moreover, the trial judge's order has the potential to dramatically change J.B.'s life. In the light of that potential, he ought to be able to participate in the proceeding that will determine with whom and under what terms he lives, independently of either the alienating or alienated parent.

[17] Second, the trial judge's order raises important and difficult issues. We think it would benefit the panel to hear J.B.'s perspective on these issues through the submissions of his own counsel. We therefore grant the motion to intervene, but on terms, which we discuss below. (5) Terms of the Intervention

[18] Rule 13.01(2) permits the court to order terms that will prevent the intervention from unduly delaying the rights of the parties to the appeal. Terms are appropriate here because this appeal ought to be heard and resolved as soon as possible. Therefore, to ensure that the hearing of the appeal is not delayed, our order granting leave to J.B. to intervene as an added party shall be on the following two terms: (i) J.B. must accept the trial record as it stands. He shall not be permitted to seek to file fresh evidence on the appeal. (ii) J.B. shall not be permitted to advance the constitutional arguments raised at paras. 43 to 45 of his factum on the motions. These issues were not raised at trial. Moreover, as this is private litigation not engaging a state actor, these issues seem to us on a preliminary assessment to have little or no merit.

[19] These two terms are subject to the discretion of the panel hearing the appeal. (6) Filing of Factums and Times for Oral Argument

[20] The father and J.B. shall file their factums by Tuesday, September 14, 2010. The mother shall file her factum by Tuesday, September 21, 2010. The appeal shall be argued on September 29, 2010. The father and J.B. shall each have one hour for oral argument, including reply. The mother shall have one and a half hours for oral argument.

Order accordingly.