ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 17412/11
DATE: 20130319
BETWEEN:
W.W.
Applicant
– and –
X.X. and Y.Y.
Respondent
Leslie Robertson for the LGBTQ Parenting Network
HEARD: January 15, 2013
decision on motion to intervene
HENNESSY j.:
[1] The LGBTQ Parenting Network seeks leave to intervene in the trial of W.W. v. X.X. and Y.Y. as a friend of the Court pursuant to Rule 13.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
[2] The LGBTQ Parenting Network’s membership base includes lesbian, gay, bisexual transgendered, transsexual and queer parents, potential parents, children and their allies in Ontario. When referring to the community of lesbian, gay, bisexual, transgendered, transsexual and queer people, I will use the acronym LGBTQ.
[3] The background facts to this case are set out in the decision relating to the agreement found at W.W. v. X.X. and Y.Y., 2013 ONSC 879. Briefly, the issue in this case is a claim for a declaration of parentage and access to the child Z.Z. The child Z.Z., now two years old, was conceived using donated sperm from W.W. X.X. gave birth to the child. She is married to Y.Y. The child has lived with his two mothers, X.X. and Y.Y., since birth. In their pleadings, the parties have both referenced a Donor Agreement signed by W.W. and X.X.
[4] The proposed intervenor submits that this case raises important legal questions about the impact of known donor agreements on questions of parentage and access, the recognition of intended parental projects and specifically the ability of lesbian parents to create autonomous families using known sperm donors.
Issues and The Law
[5] Rule 13.02 of the Rules of Civil Procedure provides that any person may, with leave of a judge, intervene in a proceeding as a friend of the Court for the purpose of rendering assistance to the Court by way of argument.
[6] Both W.W. and Y.Y. have consented to the appointment of the LGBTQ Parenting Network as an intervenor.
[7] Rule 13.02 accords considerable deference to the court hearing the motion. The overarching principles are set out in Peel (Regional Municipality) v. Great Atlantic and Pacific Co. of Canada (1990), 1990 6886 (ON CA), 74 O.R. (2d) 164 at 167 where Dubin C.J.O. lists the key factors to be considered:
• 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 matter without causing injustice to the immediate parties.
[8] The subsequent jurisprudence has identified additional considerations, including the extent to which the participation of an intervenor in an essentially private dispute would add to the costs and complexity of the litigation. (Authorson v. The Attorney General of Canada (2001) 2001 4382 (ON CA), 147 O.A.C. 355 at paras 8-9.)
[9] Finally, the jurisprudence suggests that where the court permits the participation of an intervenor, is should clearly define the scope of the intervenor’s participation.
Proposed Intervenor
[10] The LGBTQ Parenting Network (“the Network”) is a Toronto-based program that promotes the rights and seeks to advance the well-being of LGBTQ parents, prospective parents and their families through local programming, education, advocacy, research, social networking and community organizing. The Network partners with a number of other organizations across Ontario to provide resources directly to families and communities and to study and make submissions on legislation concerning assisted human reproduction.
Nature of the Case
[11] This case is first of all a private dispute between the parties concerning the declaration of parentage of one child and the access with that child. However, it also involves questions that have a public dimension. The proposed intervenor submits that, in addition to the best interests of the child, this trial will involve the consideration of a number of emerging socio-legal issues:
• How the recognition of diverse family forms and assisted reproduction issues interact with the best interests of the child.
• The legal security of lesbians and other non-biological parents who wish to create families through contracts dealing with assisted reproduction.
• The role and validity of such contracts in disputes on access and parentage.
[12] The public interest is engaged in these issues, which form part of current health, ethical, social and legal dialogue and debate. The issues arising from a known donor agreement in parentage and access disputes have not yet been addressed in Ontario legislation or jurisprudence.
[13] I am satisfied that the nature of the case weighs in favour of permitting the participation of the LGBTQ Parenting Network, whose scope of work is involved with public dimension of these questions.
The Issues
[14] I considered the affidavit filed by Rachel Epstein, the Coordinator of the LGBTQ Parenting Network. She has twenty years of research and work experience with the institutions, groups, families and individuals who are implicated in the formation of families through a variety of assisted human reproduction means.
[15] Ms. Epstein identified a number of public policy issues that the court may consider in reaching a decision in this case including;
• LGBTQ experiences with assisted human reproduction services;
• methods of organizing families to avoid conflict; and
• LGBTQ adoption and children of LGBTQ parents.
[16] These emerging policy issues identified as by the Network touch directly on the issues which are the subject of the pleadings. They have been the topic of academic study and community-based dialogue by the Network through their work with other community groups, public health care institutions and local, provincial and federal organizations and agencies. I am satisfied that the Network can bring to the court the benefit of their knowledge and experience and thereby provide the court with additional context in which to assess the facts in issue in this dispute.
Can the Applicant make a useful contribution to the resolution of the matter without causing injustice to the immediate parties?
[17] In order to demonstrate that a proposed intervenor is likely to make a useful contribution, a proposed intervenor must meet at least one of the following criteria:
• It is a well-recognized group with a special expertise and a broadly identifiable membership base;
• It has a real, substantial and identifiable interest in the subject matter of the proceedings; and/or
• It has an important perspective distinct from the immediate parties.
Bedford v. Canada (Attorney General), 2009 ONCA 669 at para. 2; Ontario (Attorney General) v. Dieleman (1993) 1993 5478 (ON SC), 16 OR (3d) 32 (Gen Div) at para. 114.
[18] I am satisfied that the Network meets all three of the criteria.
[19] As described above, the Network has a broadly identifiable membership base and a special expertise.
[20] The issues in this case go to the core of the interests of the Network and its mandate to advocate on behalf of LGBTQ parents and their children, including in situations where parenting disputes arise in the context of assisted human reproduction agreements. I find therefore that it has a real, substantial and identifiable interest in the subject matter of this proceeding.
[21] The parties in this case are solely interested in the resolution of the parentage and access dispute regarding child Z.Z. The respondents argue inter alia that the donor agreement is one but an important factor for the court to consider in making its determination. On the other hand, the Network seeks to ensure that the court has sufficient information to put donor agreements in a broader social context. They argue that in order for the court to fully appreciate the issues that arise in this proceeding, it is necessary and useful to be aware of the culture, customary practices and social organization of the LGBTQ community. An intended parental project, as they are called in the material filed by the proposed intervenor, refers the creation of families by some means of assisted human reproduction, which are often governed by a contract such as a donor agreement. The context in which donor agreements are created, their meaning to those who are involved in intended parental projects, and their impact in the social and legal structure of intended families including children is the focus of the Network as intervenor in these proceedings. This perspective, broadly defined, is distinct from the perspective of the parties.
[22] It is recognized that any decision in this case may have a much broader impact, particularly within LGBTQ-led families. The Network has the ability to present the perspective of a specific group whose interests may be affected by the outcome and who would not otherwise be heard. They have recognized expertise in the area of intentional parental projects through research, publications, community programming, workshops and the provision of guidance for those considering intentional parental projects.
[23] The Network submits and I accept that it is able to make submissions that consider the implications of this case for numerous family configurations and which include the experiences of children of LGBTQ parents, parents who choose to conceive using known sperm donors, non-biological co-parents and single parents.
[24] A friend of the court need not be impartial, objective or disinterested (Childs v. Desormeaux (2003), 2003 47870 (ON CA), 231 D.L.R. (4th) 311, 67 O.R. (3d) 385 (C.A.) at para 13). The Network aligns itself with the position of the respondent as to the interpretation and impact of the Donor Agreement. However, since I have found that it can make a useful contribution that is distinct from the parties, this identification with the position of one of the parties does not disqualify it from participating as a friend of the court.
[25] The parties did not identify any prejudice or injustice to them that would flow from an order granting the Network leave to intervene, nor do I see any such prejudice.
Conclusion and Terms
[26] I am satisfied that it is in the interests of justice for the LGBTQ Parenting Network to participate in this case as an intervenor and leave is granted for it to intervene as a friend of the court.
[27] The Network proposed terms of their participation. I am mindful of the caution articulated in Halpern v. Canada (Attorney General), [2001] O.J. No. 879 at para 2, that the court must be careful not to permit the addition of intervenors to cause prejudice or delay to the determination of the issues between the parties, and that such concerns may be heightened at the trial level.
[28] Among other things, these proposed terms protect the parties as much as possible from any additional costs or complexities arising from the participation of the intervenor. I also order that there be no costs against the intervenor. See CanWest Media Works Inc. v. Canada (Attorney General) [2006] O.J. No. 4403 at para. 14.
[29] Although there has been considerable delay in scheduling a hearing on the main question, the current timetable was set on consent and this motion proceeded independently of the timetable and without any impact upon it. A number of personal and family issues of the parties and counsel contributed to the delay.
[30] I conclude that the consent of the parties to this motion includes consent to the proposed terms. I adopt those terms as part of the order allowing their intervention. Therefore, the participation of the Network in this proceeding is subject to the following terms:
• The LGBTQ Parenting Network will not seek to supplement the record, nor will the Network challenge any factual findings.
• The Network will not seek to expand the issues beyond those identified by the parties.
• The Network will make all reasonable efforts to avoid duplication of arguments.
• The Network will neither seek costs nor have costs awarded against them in respect of this motion for leave to intervene and in respect of its eventual intervention.
• The Network may file a factum up to 30 pages in length or such other length as this court deems appropriate, and may appear at the trial hearing and make submissions as directed by the court at a trial management conference.
Madam Justice Patricia C. Hennessy
Released: March 19, 2013
COURT FILE NO.: 17412/11
DATE: 20130319
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
W.W.
Applicant
– and –
X.X. and Y.Y.
Respondent
DECISION ON MOTION TO INTERVENE
Hennessy J.
Released: March 19, 2013