ONTARIO COURT OF JUSTICE

CITATION: I.F. v. C.C.V., 2021 ONCJ 545

DATE: 2021 10 20

COURT FILE No.: Toronto DFO-18-15476-001

BETWEEN:

I. F. and J. F.

Applicants

— and —

C. C. V.

Respondent father

Ruling on Motion to Add S. F. as a Party in this Proceeding

Heard on October 15, 2021

Ruling released October 20, 2021

Lauren Speers/Theodore Nemetz.................................................... Counsel for the applicants

Respondent C. C. V........................................................................................... Acting in person

S. F. Moving Party seeking to be added as a party........................................ Acting in person

O’CONNELL J.:

INTRODUCTION:

[1] Ms S.F. has brought a motion to be added as a party to this motion to change Justice Pawagi’s Final Order, dated November 29, 2017, regarding the parenting arrangements for the subject child “M.”, age 9 years old. Ms F. is the biological mother of M. She also requests that the court set aside the default order against her so that she can respond to the motion to change.

[2] The applicants in the motion to change are the maternal grandparents. Ms F. is their daughter. The respondent is the child’s biological father. Both the maternal grandparents and the father brought motions to change Justice Pawagi’s Final Order. These motions were consolidated and proceeded under the grandparents’ motion for change with the intention of simplifying the proceedings. The mother was removed as a party on October 9, 2018.

[3] This matter was on the October 19, 2021 Trial Assignment Court for the November 29 to December 10, 2021 Trial Sittings.

[4] This is appropriately described as a very high conflict case. The maternal grandparents and the father’s motion to change has been highly contested since 2018. Before that, there was a child protection application involving M.’s biological parents that commenced in 2016. M. has been embroiled in this legal conflict between the people who love him since he was approximately four years old.

Brief Background:

[5] M. has been in the primary care and residence of the applicant grandparents for most of his life, approximately since his birth, except for sporadic periods of time until M. was seventeen months old (July 14, 2013). It appears that M. has never primarily resided with either biological parent.

[6] On November 29, 2017, following the resolution of the child protection proceeding, Justice Manjusha Pawagi granted the maternal grandparents sole custody and primary residence of M., what we now call sole decision making responsibility and primary residence under the amendments to the Children’s Law Reform Act[^1]. This was made in the context of the child protection proceedings as a section 102 Custody Order.

[7] The respondent father was granted specified alternating weekend access, from Friday until Sunday, and mid-week access, including holiday access, what we now call parenting time under the legislative amendments.

[8] This parenting schedule continues to be in place.

[9] At the time of Justice Pawagi’s Final Order, the mother was struggling with a serious substance abuse disorder and mental health issues. She did not participate in the proceedings in a meaningful way. She was noted in default.

[10] The mother was not granted specified access to M. in the Final Order, however, Justice Pawagi granted the mother leave to bring a motion to change at some point in the future should her situation stabilize or change.

[11] In 2018, both the maternal grandparents and the father brought motions to change the Final Order of Justice Pawagi. The grandparents sought to restrict the father’s parenting time and the father sought shared parenting or more parenting time with M. Initially, the father was also seeking joint or sole custody (decision making responsibility) but he now states that he is no longer seeking this relief. As noted, both motions to change were consolidated in the current proceeding by court order on March 21, 2019.

[12] The mother was initially served with the motion to change materials on May 3, 2018, according to the First Appearance dated June 4, 2018. The mother did not serve or file responding materials. Although she attended a few of the first appearances, all claims made against the mother were discontinued and the mother removed herself as a party to these proceedings on October 9, 2018, pursuant to a Consent Order of Justice B. Weagant. She has not participated in this litigation since that time.

[13] On April 24, 2019, the court referred the matter to the Office of the Children’s Lawyer (“OCL”) for a section 112 Report. This report was significantly delayed in completion for several reasons, including issues relating to the pandemic. Following a very thorough investigation, on September 3, 2020, the lengthy OCL report was released with specific recommendations.

[14] The OCL recommended that the applicant grandparents continue to have sole decision making and primary residence of M. and that the respondent father have parenting time every Tuesday and Thursday, pick-up from school until 8:00 PM and alternate weekends from Friday, pick up at school to Sunday at 5:00 PM. Several other recommendations were made regarding access to information, communication, holiday schedule and counselling for M.

[15] It was hoped that following the delivery of the OCL Report, the parties would resolve the issues between them, and the conflict would end. Unfortunately, the conflict between the parties has not abated, and appears to be escalating.

[16] The maternal grandparents are disputing the OCL clinician’s findings and recommendations and have filed a detailed and very lengthy Formal Dispute in accordance with Rule 21 of the Family Law Rules. They are disputing the mid-week parenting schedule that is recommended for the father because they do not believe it is in M.’s best interests.

[17] The father has not filed a formal dispute, although he disputes several of the findings of fact in the OCL report as confirmed in in his Affidavit dated April 28, 2021. However, the father states that he is prepared to accept the OCL’s recommendations.

[18] The court has held at least two lengthy settlement conferences with the parties since the report was received and made recommendations. Unfortunately, the parties were not able to resolve the issues between them.

[19] At the last settlement conference on May 7, 2021, the issue of adding the mother as a party was raised by the maternal grandparents. The grandparents confirmed seven days after this settlement conference that the mother wished to be added as a party to this case.

[20] The matter is now heading to trial. A Trial Management Conference was scheduled before me for July 30, 2021 and a trial assignment date for August 17, 2021. However at the August 17, 2021 Trial Assignment Court, the matter was not ready to proceed to the September trial sittings as the Trial Management Conference and pre-trial motions (including the motion to add the biological mother as a party) had not yet been completed. The matter was therefore adjourned to the October 19, 2021 Trial Assignment Court.

[21] On October 15, 2021, the mother’s motion to be added as a party was heard. The Court reserved its ruling following arguments.

[22] On October 19, 2021, this matter was before me in Trial Assignment Court. On that day, the Court advised the parties that the mother’s motion was dismissed, with these written reasons to follow. The matter was then scheduled to proceed for the trial sittings of November 29 to December 10, 2021 and January 10 to 21, 2022. The parties and counsel are available for these sittings.

The Parties’ Positions:

The Mother:

[23] The mother is now a licensed paralegal. She states that she has made tremendous gains in the past three years. She has a successful career, a stable partner and home. She has maintained sobriety for approximately three years. She currently has parenting time with M. on a regular basis on the weekends that M. is with her parents. She states that she splits every other weekend with her parents.

[24] The mother wishes to be added as a party now so that she can seek an order in the upcoming trial to have regular specified parenting time with M. It is her position that it is in M.’s best interests to have a well-defined “access” (parenting) schedule in place which includes routine visits with her.

[25] The mother states that she does not wish to prolong this process but submits that the trial judge needs to be aware that she has been sharing her parents’ weekend and holiday time with M. She also submits that it is in M.’s best interests that they have alone time together. This should be factored into the trial judge’s decision regarding the breakdown of M.’s time outside of school with his grandparents and the father.

[26] Regarding the upcoming trial, the mother states that she will not need to cross-examine any witnesses proposed by her parents, however she does wish to cross-examine the OCL clinical investigator, M.’s therapist, and the respondent father.

[27] The mother states that if she is not added as a party, then she will be bringing her own motion to change to seek parenting time with M. She submits that this will cause more delay in resolving the parenting issues for M. than if she is added as a party now, where the trial judge will have the benefit of all three parenting plans.

The Grandparents’ Position:

[28] The grandparents support the mother’s position.

The Father’s Position:

[29] The father submits that he is not opposed to the mother becoming involved in these proceedings but he is highly opposed to her being added as a party at this late stage in the matter and “getting back-doored into the trial” just weeks before the trial is scheduled to proceed, when the trial is solely about his “access” (parenting time) with M.

[30] He submits that if the mother is added as a party at this late stage in the proceeding, then it will be impossible for the trial to proceed in the November and December or January trial sittings.

[31] The father submits that despite the mother’s claims, he has serious concerns about her mental health and sobriety and her request for specified parenting time alone with M. If the mother is added as a party, then he will be seeking disclosure of all of the mother’s criminal records, including occurrence reports since 2017, (when the Final Order was made), and her medical and psychiatric records, which will not be possible to obtain before trial. He submits that the OCL clinician did not seek these records during her investigation, nor did she fully investigate the mother because the mother was not a party or putting forth a plan at the time.

[32] He further submits that if the mother is added as a party, then he will be changing his trial position and will now also be seeking to address and change the current “custody” arrangements. He believes that this is a litigation tactic by the grandparents and the mother to try to obtain as much separate “access” (parenting time) for the mother as possible to limit his parenting time with M. at trial.

The Law and Governing Principles:

[33] The procedural law governing this case is the Family Law Rules (“the Rules”). Subrule 7(5) of the Rules provides that a court may order that any person who should be added as a party shall be added as a party and may give directions for service on that person. [O. Reg.

[34] The onus is on the biological mother to prove that she should be added as a party under subrule 7(5) of the Rules.

[35] The court in Children’s Aid Society of London and Middlesex v. S.H., S.W. and D.R., 2002 46218, 118 A.C.W.S. (3d) 672, 16 O.F.L.R. 126, [2002] O.J. No. 4491, [2002] O.T.C. 916, 2002 Cars­well­Ont 4048 (Ont. Fam. Ct.), set out the following legal principles for the court to consider before adding a party to a proceeding under subrule 7(5) of the Family Law Rules:

1. Whether the addition of the party is in the best interests of the child.

2. Whether the addition of the party will delay or prolong the proceedings unduly.

3. Whether the addition of the party is necessary to determine the issues.

4. Whether the additional party is capable of putting a forward a plan that is in the best interests of the child.

5. Whether the proposed party has a legal interest in the case.

[36] In Children’s Aid Society of Algoma v. V.C., 2011 ONCJ 83, Justice John Kukurin wrote at paragraph 19:

“The case of Children’s Aid Society of London and Middlesex v. S.H., S.W. and D.R., supra, does not stand for the proposition that all four of the “criteria” mentioned in that case must favour the motion applicant before the court can add that person as a party under subrule 7(5). This subrule uses the words “may order”, which denotes a permissiveness that should be exercised judicially. In other words, judicial discretion.”

[37] In Children’s Aid Society of Toronto v. C.K., 2013 ONCJ 342, 229 A.C.W.S. (3d) 450, [2013] W.D.F.L. 4111, [2013] O.J. No. 2917, 2013 Cars­well­Ont 8525 (Ont. C.J.), Justice Stanley Sherr summarized other principles that are relevant to the court’s consideration at paragraphs 13 to 15 of that decision:

[13] The ability of an existing party to present a plan of placement of a child with a non-party can be a significant consideration in deciding whether to add that non-party. See: Catholic Children’s Aid Society of Toronto v. Dana H., 2009 ONCJ 2.

[14] That someone may have relevant evidence in a case does not elevate them from a witness to party status. See Noik v. Noik, 2001 27970, 14 R.F.L. (5th) 370 (Ont. Fam. Ct.).

[15] It is not necessary for the court to determine at this stage whether the plan of the proposed added parties would be successful; the question at this stage is whether their plans merit consideration, despite the delay in bringing it. See Catholic Children’s Aid Society of Toronto v. Dana H., supra.

[38] Justice Sherr added a further principle that in considering the best interests of the child, the level of conflict between the parties and the proposed party and what conflict a child may be exposed to is a relevant factor in determining whether a person should be added as a party. See Children’s Aid Society of Toronto v. C.K., supra, at paragraph 22; Children’s Aid Society of Toronto v. G.M., 2014 ONCJ 209 at paragraph 13.

[39] Although the case law cited above derives from child protection proceedings, the law is clear that these legal principles also apply to domestic cases. See: Neshkiwe v. Hare, 2020 ONCJ 42; Worral v. Worral, [2012] ONSC 4388.

Application of the Law and Governing Principles to this Case:

[40] In applying the above legal principles to the case before me, it is undisputed that the mother has a legal interest in this case. She is M.’s biological mother. However, the mother withdrew as a party from this case on October 9, 2018, more than three years ago. She was noted in default.

[41] What is contested are the further factors that the court must consider in determining whether to grant the mother party status at this time.

[42] The court declines to grant the mother party status in this motion to change for the following reasons:

1. Delay:

[43] Adding the mother as a party now will significantly prolong these proceedings. The matter is ready to proceed in the trial sittings commencing November 29, 2021, only six weeks from now. The parties are ready. If the mother is added as a party now and the default set aside, she will have 30 days to serve and file her response to the motion to change, and the grandparents and the father will have an additional time period to reply. She will need to do this in accordance with the Family Law Rules and to put her parenting plan and the specific orders that she is seeking properly before the court in her Response to the Motion to Change.

[44] The father has indicated that he will be seeking to seek disclosure of the mother’s criminal and medical records to challenge the mother’s proposed plan. He has filed voluminous materials setting out the information that he is seeking from the mother regarding her mental health and sobriety. He will be seeking an adjournment which may likely be granted as it will not be possible to obtain this disclosure before the beginning of trial. It will also considerably lengthen the trial.

[45] The father has also indicated that if the mother is added as a party, then he will be seeking decision making responsibility at trial. The trial as it is now scheduled is only about the father’s parenting time and whether it should be increased, decreased, or remain the same. If the issue of decision-making responsibility becomes a triable issue, this will considerably lengthen the trial.

[46] The OCL clinician will be a key witness in this trial, however, she only made recommendations about the two parenting plans that were before her. Although she conducted a lengthy interview with the mother as an important collateral, she did not investigate the mother’s proposed plan, nor did she review police or medical records, nor did she make any specific recommendations about parenting time for the mother.

[47] It is likely that the parties may request that the OCL provide an updated report to investigate and make recommendations about the mother’s proposed plan and whether this will impact the recommendations set out in the Report dated September 3, 2020. Again, this will likely result in an adjournment of the trial.

[48] The mother is also seeking to cross-examine the OCL clinician, the child’s therapist, and the father at trial if she is added as a party, also significantly increasing the trial time allotted, which is now estimated to be at least seven days.

[49] All the above factors could result in a delay of several months before this motion to change reaches a conclusion. The trial would need to be adjourned to the summer trial sittings. This litigation has been before the court since 2018, more than three years.

[50] It is speculative at this time to consider whether the mother will bring her own motion to change and how long that process will take. Currently, the mother enjoys frequent and regular parenting time with M. through her parents. The mother and her parents appear to have a very close relationship and they have been able to work together to ensure that M. has regular parenting time with the mother during the time that M. is in the grandparents’ primary care. It is possible, depending on the outcome of this trial, that the mother may not have to pursue her own motion to change.

2. Whether Adding the Mother as a Party is Necessary to Determine the Issues and Whether the Mother Can Put Forth a Plan in M.’s Best Interests:

[51] These two factors can be considered together. The mother may very well be capable of putting forth a plan for parenting time that is in M.’s best interests. Based on the evidence filed, she has made tremendous strides over the last three years and she has successfully addressed her mental health and substance abuse issues. She is to be commended for this. According to the OCL Report, M. has a loving relationship with his mother. Throughout the investigation, “M. expressly stated his desire to live with [his grandparents], to have regular parenting time with [his father], and to continue to see his mother.”[^2]

[52] However, the mother has made it clear in her arguments on this motion that she is not seeking to disrupt M.’s primary residence with the applicant grandparents. She is seeking to define her parenting time with M. and to ensure that it is not undermined by the father’s parenting plan.

[53] It is not necessary for the mother to be added as a party for the court to understand the mother’s parenting time with M. and her concerns about how any court order made will affect this. This is no doubt very relevant evidence, but the trial judge can obtain this evidence through the mother’s testimony as a witness at trial, through the evidence of both grandparents and the OCL clinician, who interviewed the mother extensively.

[54] The trial judge will be alive to the issue of M.’s relationship and time spent with his mother and how that factors into the decision he or she makes. As stated in Noik v. Noik, supra, “that someone may have relevant evidence does not elevate them from a witness to party status.”[^3]

3. Whether Adding the Mother as a Party at this Stage will Increase the Conflict that the Child may be exposed to:

[55] There is no question that the child will be exposed to increased conflict between the parties if the mother is added as a party at this stage, and that this conflict will continue for a significantly longer period of time. The father has advised that he will be seeking disclosure of the mother’s police and medical records which will be very contested, and that he will revise his trial position and seek sole decision making responsibility, resulting in a much lengthier trial and more conflict.

[56] This child has experienced the conflict between his parents and grandparents since he was approximately four years old, a period of almost six years, more than half of his life. This must end for M.’s emotional, psychological, and physical well-being, which has no doubt been affected by the conflict in this case.

Conclusion and Order:

[57] In summary, in considering all of the above factors, including the ongoing and increased level of conflict that M. will be exposed to, it is not in M.’s best interests to grant the mother party status at this late stage in this proceeding.

[58] For the above reasons, the Court makes the following Order:

1. The mother’s motion is dismissed. The mother’s party status will not be reinstated nor will she be added as party to this motion to change.

2. There will be no costs payable by anyone for this motion.

3. This ruling does not preclude the mother from bringing her own motion to change at some time in the future, should she choose to, in accordance with the Final Order of Justice Pawagi, dated November 29, 2017.

Justice S. O’Connell

[^1]: 1990, c. C. 12, as amended March 1, 2021 [^2]: Page 20 of 39 of the OCL Report dated September 3, 2021, 4th paragraph. [^3]: Paragraph 14 of that decision.