Court File and Parties

Court File No.: 48/2011 - 01 Sault Ste. Marie Ontario Court of Justice

In the Matter of the Children's Law Reform Act

Between:

Tracy Anne Lafrance Applicant (Self-Represented)

— And —

Jeffrey Neil Thomas Respondent

Counsel: E. McCooeye, for the Respondent

Heard: October 10, 2012

Before: Kukurin J.

Decision

[1] The motion before the court (at Tab 2, Volume 3 of the Continuing Record) is brought by the Applicant mother of the children Coty, age 18, and Chelsya, age 15.

[2] This decision is with respect to a claim in this motion for an order to amend the claim of the mother in her application in this case. The application had multiple claims, but the only one relevant to this motion is her claim for custody in respect to the child Coty.

[3] The mother's initial claim in her application was for an order that she and the father have joint custody of Coty, sharing his time equally between them. Her present motion asks for an order that her claim be amended to one of sole custody of Coty in her favour, and that any order for paternal access be subject to Coty's wishes.

[4] The father opposes this motion.

[5] This paternal opposition is somewhat surprising since all the mother wants is just to change her claim. In this case, the mother could simply withdraw her initial claim and start a new application with the claim she now wants to make with respect to Coty. However, she chose to ask the court's permission to make this change in the existing application. There is nothing wrong in her doing so. In fact, it avoids a multiplicity of proceedings. Moreover, it avoids duplication of evidence relevant to the claims of custody and access.

[6] Admittedly, in some cases, the court could be reluctant to allow an applicant to change his or her claim. If the case had progressed to the brink of trial, for example, and especially if the change was a significant one, the court might be loath to allow such a change. It might affect the entire direction of the proceeding and result in a significant setback in the litigation process. Mostly, however, the court would be looking to what prejudice allowing a change in claims would result to the other party, or parties (or other participants in the case).

[7] In this case, the father does not rely on any argument of prejudice or delay to support his opposition to the motion claim. His argument is somewhat unique. His contention is that the court has no jurisdiction to make the order of sole custody that the new claim, if allowed, would be seeking. Therefore, the court ought not permit the amendment to be made. This is one of those rare situations where deciding the claim to permit an amendment also effectively decides the jurisdictional issue relating to custody of adult children.

Jurisdiction and the Definition of "Child"

[8] The argument underlying this lack of jurisdiction involves the fact that Coty is now age eighteen and is therefore an adult. The father's argument is that Coty is no longer a "child". The section of the Children's Law Reform Act (the "Act") pursuant to which applications can be made for orders respecting custody of or access to a child is section 21. This section speaks of custody of or access to "the child".

[9] My first impulse is to reject this argument completely. However, this response is prompted more by a gut feeling than by a dispassionate examination of the law and a fair consideration of the father's arguments.

[10] Section 21(1) of the Act permits "a parent of a child" to apply for an order respecting custody of or access to the child. The Applicant mother in this case is clearly a "parent" of the child Coty. This parent and child relationship does not change simply because the child may acquire the age of majority under some other statute applicable in the territorial area where the parent and child may reside. From the viewpoint of status to bring an application for custody of her biological son to this court, the mother appears to be well within the ambit of s.21(1) of the Act.

[11] However, the argument of the father is not so much related to whether she has standing to make this claim, but rather whether the court has jurisdiction to make the order that she would be seeking in her amended claim. The powers of the court are set out in considerable detail in section 28 of the Act. There is little doubt, on a cursory reading, that the court is empowered to grant sole custody of a child to the child's biological parent by way of court order. There is no limitation in section 28, temporal or otherwise, that statutorily terminates or curtails this power in any way.

[12] The father's argument rests on a rather inconspicuous subsection of the Children's Law Reform Act to which my attention had been brought by counsel for the father after my first release of Reasons on this motion. This present version of these Reasons is meant to supersede the initial version, and to take into account the effects of this subsection to the issues presented by the motion before the court.

Section 18(2) of the Children's Law Reform Act

[13] The subsection in question is subsection 18(2) of the Act. For purposes of context, I set out this subsection in the framework in which it appears in the statute:

PART III — CUSTODY, ACCESS AND GUARDIANSHIP

INTERPRETATION

18. Definitions.—(1) In this Part,

"court" means the Ontario Court of Justice, the Family Court or the Superior Court of Justice;

"extra-provincial order" means an order, or that part of an order, of an extra-provincial tribunal that grants to a person custody of or access to a child;

"extra-provincial tribunal" means a court or tribunal outside Ontario that has jurisdiction to grant to a person custody of or access to a child;

"separation agreement" means an agreement that is a valid separation agreement under Part IV of the Family Law Act. R.S.O. 1990, c. C 12, s. 18(1); S.O. 1996, c. 25, s. 3(2); S.O. 2001, c. 9, Sched. B, s. 4(7-8).

(2) Child. — A reference in this Part to a child is a reference to the child while a minor. R.S.O. 1990, c. C 12, s. 18(2).

[14] The Children's Law Reform Act is divided into three Parts. Section 21, pursuant to which the mother is seeking a custody order, falls within Part III. Subsection 18(2) of the Act applies to every section contained in Part III. On a superficial examination, it would appear that the application of s.18(2) creates limitations not only as to whose custody can be applied for by an applicant, but also in respect of whose custody the court can make an order.

Statutory Interpretation and Legislative Intent

[15] When the same law seems to authorize something and prohibit that same (or part of that same) thing, it is worthwhile to scrutinize the provisions of the law that does this. Perhaps the first question to ask is what was the intent of the legislators in enacting subsection 18(2). The corollary to this question is why these legislators created subsection 18(2) in the manner in which it appears in the Act.

[16] It cannot be accidental that for Parts I and II of the Act, references to a "child" can and do include a person who has passed the age of majority. The connotation of "child" in Parts I and II is one of 'relationship' of such person to his or her parents (or others), regardless of his or her age. In Part III, this does not change appreciably. 'Relationship' continues to be the major consideration underlying most of the provisions in Part III. Why then would there be a cut-off of the applicability of these provisions when the child attains adulthood? As disconcerting as it may sound, I cannot come up with any reason that to me seems reasonable. I can only conclude that it was an arbitrary decision of our lawmakers. In mentally reconsidering the provisions of sections 18 to 75 (which comprise Part III of the Act), with the word "child" or "children", where they appear therein, to include persons both under and over the age of majority, there does not seem to be any flagrant incongruity or inconsistency that stands out in any of these sections. From a practical and logical point of view, the provisions of Part III would, but for s.18(2), make just as much sense if the 'child' to which these sections relate was under or over the age of majority.

[17] Equally deliberate on the part of the legislators of this Act is the construction of the provision in subsection 18(2). Subsection 18(1) is entitled "Definitions". In fact, there are four other terms for which definitions are given for purposes of Part III of the Act. There could easily have been five. The term "child" could easily have been included and defined in subsection 18(1). This definition would then have applied throughout Part III.

[18] However, this was not done. There is a clear grammatical disparity between the way that the terms in subsection 18(1) are treated in terms of their meanings, compared with the way in which the meaning of the term "child" is handled in subsection 18(2). Surely there must be some discernable reason for this difference in treatment. But what is it?

[19] Does anything turn on this disparity of treatment? This is rather difficult to answer unless one knows what was in the minds of the legislators. From a syntactical point of view, the grammatical construction that 'X means Y' is much more direct and explicit than the construction that 'a reference to X is deemed to be a reference to Y'. I cannot come to any conclusion as to the reason that underlies the choice for this weaker construction.

[20] Courts, at times unfortunately, are stuck with the legislation that exists. They can torture the meaning of statutes only so far to try to have them make some sense. In the present case, there is not a great deal that can be done to interpret subsection 18(2) to mean something other than is apparent from a plain reading.

[21] The alternative is to ignore this provision or to distinguish it in some way so as to make it inapplicable to the case before this court. Ignoring legislation happens sometimes, especially if it is bad legislation. But there is a downside to taking this approach. It is not healthy from a jurisprudential point of view.

[22] How does one apply subsection 18(2) to the provisions of Part III? It seems to me that the direction given by this subsection is to read after the word "child" wherever it appears in Part III, the additional word "while a minor". What does this do to the provisions of Part III?

Practical Consequences of a Restrictive Interpretation

[23] In a nutshell, it creates havoc. It means, for example, that in Ontario, the mother and father no longer have equal entitlements to custody of their child once he or she becomes an adult, at least not by virtue of any provincial statutory authority. It means that if they separate, and if their adult child lives with one of them, there is no statutory entitlement of the other parent to exercise any entitlement to access. In fact, what is statutorily included in the parental entitlement to access with respect to a minor child would cease once the child attains the age of majority. The provisions for assessments or for mediation would not apply in applications for custody or access to adult children. The police assistance provisions would likely be inapplicable with respect to an adult child. So also would those permitting courts to restrain a person's communications with an adult child.

[24] To accede to the father's argument would lead to some unusual and undesirable situations. Simply because a person who is under age 18 years becomes age 18 does not, for that reason alone move the child from dependence to independence. In fact, in our society, children are increasingly delaying their transition to independence, often because they are pursuing post-secondary education, but for myriad other reasons as well. These individuals retain their definition as 'children' of their parents. In many cases, there are good reasons why some kind of judicial order relating to custody and/or access to such adult children is desirable. The one that immediately springs to mind is that where the biological parents of the child are separated and disagree with some aspects related to the upbringing of the child. Not uncommon is the family in which some children are minors and some are adults. It makes little sense to interpret s.18(2) of the Act in such a way as to restrict a parent to obtaining a custody or access order with respect to less than all of their children, especially if they are all still economically dependent.

Consistency with Federal and Provincial Legislation

[25] It would be incongruous for a parent to be foreclosed from obtaining a custody order for his or her adult child under provincial legislation. The federal Divorce Act permits courts to make custody orders in favour of a parent to an adult child as corollary relief, so long as the child otherwise fits within the "child of the marriage" definition under that Act. That definition can clearly include adult children. The Ontario Child and Family Services Act permits adult applicants to apply to adopt adults. An adoption order confers on the adoptive parent full custodial rights with respect to the person adopted, the same as if that adopted person had been born to such parent as a biological child.

[26] The argument of the father opens up the question of what is the effect of attaining the age of majority by a child who is already the subject of a valid custody order made before he or she attained the age of majority. The logical extension of his argument is that such orders would somehow cease to have any effect. This is untenable. That parental rights established by custody orders would simply cease at majority would lead to chaotic situations and exacerbate parental conflicts. If, on the other hand, the father acknowledges that custody orders pre-dating the attainment of the child's age of majority would continue, this would make for an unacceptable state of affairs where children (and parents) would be treated differently under the law depending on whether or not a custody order had been obtained before that 18th birthday.

[27] Finally, I am not oblivious to the fact that the father, whose ultimate argument is that this court can make no order for custody of (and by extension, for access to) Coty, has, in his Answer, included a claim for joint custody of Coty, as well as a claim for sharing of transportation expenses of both children, which seems to be an incident of custody or access.

Order

[28] The claim of the applicant mother in her motion (at Tab 2, Volume 3) for an order seeking judicial leave to amend her claim to one of sole custody for the child Coty, and to amend her claim for paternal access to require access to the child Coty to be subject to his wishes, is granted.

Released: November 9, 2012

Signed: "Justice John Kukurin"