Ontario Court of Justice
Date: 2015-10-06 Court File No.: Brampton 111-12
Between:
MARIA KALAMIAS Applicant
— AND —
DEXTER FRIDY Respondent
Before: Justice P.W. Dunn
Ruling on a Motion dated 13 May, 2015
Released on 6 October 2015
Counsel:
- Marilou V. Nejal .................................................................................. counsel for the Applicant
- Steven D. Kogon, Esq. .................................................................. counsel for the Respondent
DUNN J.:
[1] Before the court was the Respondent's motion dated 13 May 2015 (in Volume 2, Tab 1) seeking to add Michael Kwao as a Respondent in this case. The motion was opposed by the Applicant.
[2] The parties are the biological parents of Trinity Magdalene Fridy, born 19 December 2006. The Applicant and Michael Kwao are the biological parents of another child, Destiny Irene Kalamias, born 29 October 1998.
[3] The materials did not describe what involvement, if any, Mr. Kwao had with Destiny for the first three years of her life. The parties began a relationship in 2001 when Destiny was about three, and lived together from 2002. They married in 2005 and separated in 2009. In the eight years the parties were together, the Respondent acted as a father to Destiny, and Mr. Kwao had no relationship with her and did not pay child support. The Applicant did not request that he do so, but there was an indication that Mr. Kwao may have been willing to support Destiny.
[4] The parties entered a separation agreement dated 10 December 2009, which was registered in this court on 1 February 2012. Pursuant to the agreement, the Respondent regularly paid $1,026 a month child support for the two children, based on his income of $68,000 for 2008.
[5] By 2015, the Applicant believed the Respondent was earning more than he did in 2008, and that he was not contributing to special expenses. The Applicant brought a motion dated 3 February 2015 to change the separation agreement. The motion had an initial case conference on 28 April 2015, when the Respondent announced his plan to bring this motion to add Mr. Kwao as a party and to determine his income, and to obtain an order that Mr. Kwao contribute to Destiny's child support.
[6] The Respondent's arguments for adding Mr. Kwao as a party were:
Rule 7 of the Family Law Rules provides that a person starting a case shall name as a Respondent every other person who should be a party, to enable the court to decide all the issues.
The form of Response to a motion to change does not provide for another person to be added as a party, but an answer to an application does. The Respondent acknowledges that he is free to bring a separate application against Mr. Kwao, but that would be burdensome to do so. However, by analogy to the Courts of Justice Act and the Rules of Civil Procedure, a litigant should be permitted to add a party in a motion to change.
Mr. Kwao has a legal obligation to support Destiny, and it is appropriate that he be part of this proceeding, because child support can be claimed against a biological parent as well as from a stepparent.
The Respondent will suffer financial harm, if only his financial circumstances are considered in the Applicant's motion to change.
There is no basis in law why the Respondent should be barred from naming the biological father as a party. The court should not consider there is any substantial difference between the procedures of a motion to change and an application.
[7] The Applicant's arguments were contrary to the Respondent's:
Case law substantiates the view that to seek contribution from a biological father, the Respondent must bring a separate application.
The issues between the parties under their separation agreement were unrelated to any concerns the Respondent had about Mr. Kwao. The contentions in the motion relate to whether the Respondent's income has increased since 2008, and what are his obligations to make section 7 payments.
The form of Response to a motion intentionally does not provide for the addition of another party, because the fundamental issue in a motion is whether there has been a material change in circumstances between the parties to the agreement, (or the parties in a court order, when a motion requests a change therein). The existence of Mr. Kwao is not a changed circumstance in the parties' obligations.
The Respondent cannot rely on Rule 7 (3) of the Family Law Rules to add Mr. Kwao as a party, because the Rule refers to "A person starting a case", but the Respondent in this case was not "starting a case".
To add Mr. Kwao as a party would cause unreasonable delay, which would prejudice the children's best interests.
[8] I accept the Applicant's arguments as being sound and reasonable. The Respondent's motion dated 13 May 2015 is dismissed. If the Applicant requests costs, she must serve the Respondent with the request and file it with the judicial secretary, Marty Starkman, Ontario Court of Justice, 7755 Hurontario Street, 6th Floor, Brampton ON L6W 3T6, by 21 October 2015. If the Respondent opposes the request for costs, his Answer must be served and filed in like manner by 4 November 2015. If there is an Answer by the Respondent, the Applicant shall serve and file a Reply by 16 November 2015.
Released: 6 October 2015
Justice P.W. Dunn