Court of Appeal for Ontario

Citation: Foster v. West, 2021 ONCA 263 Date: 2021-04-23 Docket: M52387 (C68225)

Before: Fairburn A.C.J.O. (Motion Judge)

Between

Rebecca Mae (Swirsky) Foster Applicant (Appellant)

and

James John West Respondent (Respondent)

Counsel: Ken Nathens and Denniel Duong, for the appellant Mackenzie Dean and Kirsten Hughes, for the respondent Jane Stewart and Mary Birdsell, for the proposed intervener Justice for Children and Youth

Heard: April 22, 2021 by video conference

Reasons for Decision

[1] This is a motion for leave to intervene as a friend of the court, pursuant to r. 13.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, in an appeal from an order of McLaren J., dated February 26, 2020, resolving a long-running, high conflict custody and access matter involving two children of a former marriage. The two children are now 11 and 15 years of age.

[2] The children were not represented by the Office of the Children’s Lawyer at trial. Even so, the appellant mother presented evidence from various professionals purporting to express the views and preferences of the children. In contrast, the respondent father presented evidence of various professionals who focussed upon the impact of conflict and alienation on the children.

[3] The trial judge found that the children’s “views and preferences [were] not helpful” in arriving at the decision. The trial judge did not put any weight on the views and preferences because she considered them to be “not reliable”. Ultimately, the trial judge ordered equal time sharing between the parties and custody (“decision-making responsibility” under the recent March 1, 2021 amendments to the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), s. 2(1)) to the respondent.

[4] Justice for Children and Youth (“JFCY”) seeks leave to intervene as a friend of the court in the appeal that is currently listed to be heard on May 7, 2021.

[5] JFCY is a specialty legal aid clinic that has been in existence for almost 40 years. Its mandate includes the promotion and protection of the rights of children. JFCY has significant expertise providing direct legal representation to vulnerable youth, including in the area of family law. JFCY was also involved in assisting with submissions made in relation to the recent amendments to the Divorce Act, including those that involve the determination of the best interests of the child: see Divorce Act, s. 16. This court and others have benefited from JFCY’s expertise as an intervener in the past.

[6] If granted leave to intervene, JFCY commits to refrain from taking a position on the outcome of the appeal, instead focussing its arguments upon the rights and interests of children at large. In broad strokes, JFCY proposes to address: (1) the recent amendments to the Divorce Act and how those amendments “affirm and clarify existing components of the best interests of the child analysis”; (2) the need to ensure that children have an opportunity to have their views and preferences heard by the court, which includes children having “an independent voice in family law proceedings, appropriate to their age, stage of development, and maturity”; (3) the fact that expressions of alignment and allegations of alienation are an insufficient basis upon which to dispense with children’s rights to be heard and to have their own preferences and views expressed and meaningfully considered; and (4) the need to keep the best interests of the child at the centre of all decision-making regarding children, not just decisions related to parenting time and contact. As it relates to the first argument, JFCY highlights that this is the first time that this court will be called upon to interpret the amendments to the Divorce Act.

[7] While the appellant consents to the intervention, the respondent is opposed to JFCY’s motion to intervene.

[8] The appellant filed no materials on this motion and made limited oral submissions in favour of intervention, noting that JFCY has an expertise that it can bring to the appeal that the appellant is unable to advance. While the appellant argues that the interpretation of the new provisions within the Divorce Act will be generally important on appeal, in the sense that they inform how the trial judge should have approached the consideration of the children’s best interests, the appellant acknowledges that the amendments were not operative at the time of the trial judge’s decision and, therefore, the trial judge did not err in failing to apply the amendments.

[9] The respondent argues that JFCY should be denied intervener status for a number of reasons, including that: (1) this is an entirely private dispute that should require a more onerous and stringent standard before permitting an intervention; (2) the arguments of the proposed intervener are not unique and there would be no need for the input of the proposed intervener, as JFCY will be unable to make a useful contribution in this fact-specific appeal; and (3) the lateness of this motion to intervene, being brought so close to the hearing date, will prejudice the respondent, in the sense that it will not give the respondent sufficient time to respond.

[10] The test for intervention is well-established and needs no amplification. As Dubin C.J.O. held in Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd. (1990), 1990 CanLII 6886 (ON CA), 74 O.R. (2d) 164 (C.A.), at p. 167:

Although much has been written as to the proper matters to be considered in determining whether an application for intervention should be granted, in the end, in my opinion, the matters to be considered are the nature of the case, 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.

[11] I start with the proposition that this is a private dispute. Where intervention is sought in a private dispute of this nature, as opposed to one involving the state, the standard to be met by the proposed intervener is “more onerous or more stringently applied”: Jones v. Tsige (2011), 2011 CanLII 99894 (ON CA), 106 O.R. (3d) 721 (C.A.), at para. 23.

[12] Looking at the matter through that lens, I note the appellant acknowledged in oral submissions that this court will not be asked to apply the amendments to the Divorce Act in this case, as the trial judge did not err in failing to apply the amendments. Rather, the appellant argues that the interpretation of the Divorce Act as it existed at the time that the trial judge gave her decision should be informed by the amendments regarding the best interests of the child. Therefore, in my view, this appeal does not bring the interpretation and application of the amendments of the Divorce Act as squarely into focus as the proposed intervener suggests.

[13] Further, I note that the appellant is represented by senior counsel and, to the extent that the amendments to the Divorce Act might shed some light on the trial judge’s approach to the best interests of the children in this case, I have no doubt that the appellant can articulate that position without the assistance of an intervener.

[14] As for the balance of the issues that JFCY wishes to raise, none of them are novel, in the sense that this court will be called upon to weigh in on something of first impression. While I have no doubt that JFCY could make a useful contribution on these issues, this would be the case on many similar appeals heard by this court, including those arising from public disputes.

[15] Regardless, what really tips the balance against the intervention in this case is the timing of the application and the prejudice that will arise to the respondent if intervener status to JFCY is granted. The order appealed from is dated February 26, 2020: Swirsky v. West, 2020 ONSC 1213. The appellant’s notice of appeal was filed in this court on March 25, 2020. JFCY first put the respondent on notice of their intention to seek leave to intervene on March 26, 2021. The earliest motion date available to hear this matter was April 22, 2021. At the same time that the matter was set down for the April 22, 2021 hearing, the court communicated with the proposed intervener and parties about a filing schedule, including that the proposed intervener file their materials “no later than” April 12, 2021.

[16] At the hearing of the motion yesterday, April 22, 2021, inquiries were made as to whether the proposed intervener, if granted intervener status, could file their factum by today, April 23, 2021, two weeks before the hearing of the appeal. That was not possible. The earliest date possible was said to be April 28, 2021. I note that the court has since received a letter that the proposed intervener could file a factum one day earlier, that is by April 27, 2021. Assuming this earlier filing date were to be granted, that would still only leave seven court days before the hearing of the appeal.

[17] While the appellant takes no issue with the proposed filing date, the respondent argues that they will be prejudiced by this late filing. Counsel for the respondent have obligations over the week of April 26, 2021, which I accept to be the case, that would prevent them from considering the new factum until the week of May 3, 2021. This would be the same week of the scheduled appeal. The respondent would need a proper opportunity to reply to JFCY’s factum. Even the appellant said that they may wish to reply. In any event, for the respondent, working toward a reply could not commence until the Monday of the week of the hearing of the Friday appeal. Furthermore, in a letter sent to the court following oral submissions, counsel for the respondent reiterated their inability to respond to JFCY’s factum if it were to be filed on April 27, 2021.

[18] In my view, the respondent has a very strong position when it comes to prejudice. This is not to mention that an intervention of this nature is meant to assist the court, yet that assistance can be significantly diminished when the materials are being filed at the last minute.

[19] Although the proposed intervener was under no obligation to do so, it is often the case that when a motion to intervene is brought, and especially when it is brought on such short notice, a draft proposed factum is provided with that application. While the proposed intervener provided a very high-level overview of their main arguments, bringing a draft proposed factum would have permitted the parties to know the proposed intervener’s precise position and would have allowed for an immediate filing should the motion be granted. The date of the hearing of the appeal has been known for some time, certainly prior to JFCY’s first notice to counsel of their wish to seek intervener status.

[20] None of these comments should be taken as criticisms of JFCY or as a failure to appreciate the very important work done by the organization. I do not question JFCY’s expertise, which has been of assistance to this court in the past. Even so, when I balance the nature of this appeal against the nature of the contribution that could be made to the issues in dispute, and the nature of the prejudice that could arise from allowing perfection of such a late intervention, I conclude that the motion must be dismissed.

[21] JFCY is a publicly funded, public interest organization. This was a brief motion involving the application of well-known principles of law regarding an intervention pursuant to r. 13.02 of the Rules of Civil Procedure. The motion was well motivated. Therefore, costs will not be awarded to the respondent.

“Fairburn A.C.J.O.”