ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 3145/14
DATE: 2014-11-26
BETWEEN:
Christine Elaine Veenstra
Applicant
– and –
Robert Steven McCabe
Respondent
John Paul Paciocco , for the Applicant
E. McCooeye, for the Respondent
Moving Party – Batchewana First Nation
Jane Stewart
HEARD: October 30, 2014
reasons on motion
JUSTICE E. GAREAU
[1] Before the court is a motion at Tab 7 of the continuing record. That motion is brought by the Batchewana First Nation who seek an order adding Batchewana First Nation as a party to these proceedings. In oral argument on the motion, the Band sought, as an alternative, that it be granted intervener status in the proceedings.
[2] The motion was argued on October 30, 2014, with the court reserving its decision. The motion brought by the Batchewana First Nation is supported by the respondent father and opposed by the applicant, who is the maternal aunt of the children who are subject to this proceeding.
BACKGROUND:
[3] There are three children who the court is concerned about in this proceeding, namely, Christopher Colton McCabe and Kianna Rosslyn McCabe, both born on August 3, 2008 and Gracelyn McCabe born on March 15, 2010.
[4] The biological parents of the children are Sarah Boyle and the respondent, Robert Steven McCabe. The applicant in this proceeding is the sister of Sarah Boyle or the maternal aunt of the children, Christine Elaine Veenstra. The biological mother, Sarah Boyle, was tragically killed in a motor vehicle accident on July 19, 2014.
[5] Both the applicant and the respondent seek custody of Christopher, Kianna and Gracelyn. The applicant aunt commenced her proceedings by application dated September 12, 2014. In that application, it is alleged that the children were in the care of the applicant some time prior to the death of Sarah Boyle; were placed there by Sarah Boyle in December, 2013 so she could attend school and were being withheld by the respondent father who took the children for an access visit and refused to return them to the applicant’s care. This is denied by the respondent father.
[6] Against this background, the court dealt with the matter on an emergency basis on September 18, 2014. The respondent had been served on September 12, 2014 and had not had an opportunity to file a response with the court. The court ordered that on a temporary basis, the children be in the care and reside with the applicant and be enrolled in and attend St. Joseph Island Central Public School. The respondent was to have access weekly from Friday at 6:00 p.m. to Sunday at 6:00 p.m. commencing September 26, 2014, pending the adjournment. The matter was adjourned on October 2, 2014.
[7] In the intervening period between September 18, 2014 and October 2, 2014, the Batchewana First Nation brought the motion at Tab 7 of the continuing record. This motion had to be heard before the motion for custody could be heard on its merits. Accordingly, the motion at Tab 7 of the continuing record was adjourned to October 30, 2014 for argument and was argued on that date. The competing motions for custody are scheduled to be heard on December 4, 2014 at 2:00 p.m.
[8] The applicant resides in Richard’s Landing, St. Joseph Island, Ontario. She is not of First Nation’s heritage nor was her sister, Sarah Boyle, the biological mother of Christopher, Kianna and Gracelyn.
[9] The respondent father is of First Nation’s heritage and is a member of the Batchewana First Nation and resides on the First Nation’s Reserve near Sault Ste. Marie, Ontario. The respondent deposes that about 30 members of his family live in close proximity to him, either in or around the First Nations.
THE ISSUE BEFORE THE COURT:
[10] The proceedings before the court with respect to custody and access are brought under the Children’s Law Reform Act R.S.O. 1990, c. 12, as amended.
[11] Section 21(1) of the Children’s Law Reform Act provides as follows:
“A parent of a child or any other person may apply to a court for an order respecting custody of or access to the child or determining any aspect of the incidents of custody of the child.”
[12] Under the “procedure” section of the C.L.R.A., Section 62(3) sets out the parties to an application for custody and access to a child as follows:
“The parties to an application under this Part in respect of a child shall include:
(a) the mother and the father of the child;
(b) a person who has demonstrated a settled intention to treat the child as a child of his or her family;
(c) a person who had the actual care and upbringing of the child immediately before the application; and
(d) any other person whose presence as a party is necessary to determine the matters in issue.”
[13] Rule 7 of the Family Law Rules sets out who should be named as parties in family law proceedings. Section 7(3) sets out persons who should be named as parties in such a proceeding as follows:
“A person starting a case shall name:
(a) As an applicant, every person who makes a claim;
(b) As a respondent,
(i) every person against whom a claim is made; and
(ii) every other person who should be a party to enable the court to decide all the issues in the case.”
[14] Section 7(3)(b)(ii) of the Family Law Rules, essentially reiterates the same test as set out in s. 62(3)(d) of the Children’s Law Reform Act, namely, that a person should be named as a party if their involvement is necessary for the court to determine the issues before it.
[15] The court is given wide discretion under Rule 7(5) of the Family Law Rules in the adding of a party, but very little guidance as to what factors to consider in the exercise of its discretion. Rule 7(5) reads as follows:
“The court may order that any person who should be a party shall be added as a party, and may give directions for service on that person.”
[16] The Batchewana First Nation is not asking that it have custody of Christopher, Kianna and Gracelyn. The Band is not making a claim for custody and is not asking that it be added as a party on that basis. Although it is doubtful that the Band has standing as a “person” under the provisions of s. 21(1) of the C.L.R.A. to make a claim for custody, it is not necessary for the court to decide this issue, as it is not on this basis that the Batchewana First Nation is seeking to be added as a party.
[17] The Band seeks to be added as a party on the basis of s. 62(3)(d) of the C.L.R.A. and Rule 7(3)(b)(ii), that its involvement is necessary to enable to court to determine the issue of custody of Christopher, Kianna and Gracelyn.
[18] In the case of J.A. v. J.B. 2010 ONCJ 767, [2010] O.J. No. 6169, the Children’s Aid Society of Brant requested to be added as a party pursuant to Rule 7(5). Thibodeau, J. indicated at paragraph 18 of his Reasons, that “any jurisdiction to add a non-directly interested party, if such jurisdiction exists, should be used sparingly.”
[19] The court goes on at paragraph 19 to state:
“It appears to be correct law that for a party to be added to a family law proceeding pursuant to Rule 7(5), the party must be necessary for the proper adjudication of the issues between existing parties. Alternatively, for a party to be added, the added party must be a necessary party, such as:
where the question between existing parties requires the necessary addition of the proposed party to effectively and completely settle the matter; or
where it can be demonstrated the relief sought by the existing litigants will detrimentally affect the legal rights of the added party.”
[20] Thibodeau, J. goes on to state at paragraph 19 of his decision:
“In this case to be decided, it is not clear that the addition of the Society would be necessary to determine the issues. It is clear that the Society is not putting forth a separate and distinct alternative, adverse to the existing parties, for the court to consider. Neither is the Society legally interested in the case.”
[21] In the case of Children’s Aid Society of London & Middlesex v. P. (J.) 2000 20732 (ON SC), [2000] O.J. No. 745, Justice Marshman of the Ontario Superior Court discussed at paragraph 4 of her decision, how the power to add a party under s. 7(5) of the Family Law Rules should be used sparingly when an order cannot be made for or sought against the individual or corporation seeking to be added as a party. Madam Justice Marshman notes:
“The former rule and case law suggests that a person ought to be made a party if that person’s presence is ‘necessary to determine the matter in issue.’”
Justice Marshman goes on to observe:
“If Rule 7(5) is intended to give the court broad discretion to add parties who have no legal interest in the issues before the court, then that discretion ought to be exercised very sparingly. Family law cases would become unwieldy if courts exercise a broad discretion to add parties who have an interest in the outcome, but who are not legally affected thereby.”
[22] The comments of Madam Justice Mary Marshman in the above-noted case are cited with approval by Nelson, J. in the case of Noik v. Noik 2001 27970 (ON SC), 14 R.F.L. (5th) 370. In paragraph 32 of the Noik decision, the courts states:
“Justice Marshman also held – and I agree – that, if there is jurisdiction to add individuals or corporations as parties in circumstances where no order could be made in favour of, or against them as parties, then such jurisdiction should be exercised sparingly.”
[23] Counsel for the Batchewana First Nation describes the approaches by the court in the aforementioned cases as “restrictive” and invites the court to take a more “expansive” approach to the request to add the Band as a party and the application of Rule 7 of the Family Law Rules and s. 62(3) of the Children’s Law Reform Act. The basis for this is the Band can provide a unique perspective and input to assist the court in determining the best interest of Christopher, Kianna and Gracelyn against the competing custody claims given the First Nation heritage of the children. It is argued by the Band that the care and upbringing of a First Nations child is in the collective interest of the community and accordingly, the Batchewana First Nation has an interest in the litigation and can provide a perspective which would assist the court in determining the issues of custody and access.
[24] I am sympathetic to the Band’s collective community interest in where Christopher, Kianna and Gracelyn will reside. In fact, the children’s background and their heritage will be one of the factors ultimately to be considered by the court in the application of s. 24(2) of the Children’s Law reform Act. The Band obviously has an interest in the outcome of the custody proceeding, although my view is that it goes too far to suggest that the rights of the Band are directly affected by the outcome of this custody litigation.
[25] Having said that, is the Band’s participation as a party necessary to determine the matters in issue in these proceedings; necessary to determine what is in the best interest of Christopher, Kianna and Gracelyn with respect to the competing custody claims of the applicant aunt and the respondent father? In my view, the Band’s participation is not necessary, or even at the lower spectrum, required, to determine the issue of custody and access.
[26] This is a private litigation matter between two individuals. It is not a matter where the state is involved, such as in a child protection proceeding. There is no statutory right for the Band to take part in a private litigation matter as there is in a child protection matter. Section 39(1) of the Child and Family Services Act, R.S.O. 1990, c. 11, provides that in a child protection proceeding, “where the child is an Indian or a native proceeding, a representative chosen by the child’s bank or native community” is, by statute, a party to the proceeding. There is no such provision in the Children’s Law Reform Act. It was clearly not the intention of the Legislature of Ontario to mandate that the Band be a party in every litigation matter involving the custody and access of a child of First Nation heritage. If that was the intention of the Legislature, it would have been provided for in the Children’s Law Reform Act, as it is provided for in the Child and Family Services Act. The issue of whether the Band should be a party in custody and access disputes must be decided by the application of the provisions of the Children’s Law Reform Act, the Family Law Rules and the jurisprudence. A consideration under the legislation, rules and jurisprudence reduces itself to the court being satisfied that the Band’s participation as a party in the litigation is necessary to determine the custody and access issue before the court.
[27] In answering this question, it is important for the court to distinguish between the necessity of party status and the ability to provide the court with information as a witness in the proceeding. As noted in the case of Gonzalez v. Ross [2007] O.J. No. 529, “the fact that persons sought to be added as parties will have relevant evidence necessary to enable the court to make a final determination with respect to orders sought, does not elevate them to party status from that of potential witness.”
[28] The Batchewana First Nation may very well have evidence to provide to the court as to the First Nations heritage of Christopher, Kianna and Gracelyn, the community interest in their care and community programs available through their Band for the children’s assistance, but this information can be brought before the court through witnesses called by the respondent father. The Band’s participation in the litigation is not necessary or required for this information to be provided to the court. The court must not lose sight of the fact that the respondent father is a person of First Nation heritage and an active member of the Batchewana First Nation who resides on Reserve lands. The father has a vested interest to see that the Native culture of his children is fully understood by the court and an important aspect to be considered by the court in the application of s. 24(2) of the Children’s Law Reform Act.
[29] This is not a case where neither of the parties seeking custody of the children are of First Nation’s heritage. Had this been a case where neither of the parties seeking custody were of First Nation’s heritage and the children were of First Nation’s heritage, this may have been a case where the discretion of the court, even when exercised sparingly, favoured adding the Band as a party to the litigation to ensure that all necessary evidence concerning the children’s First Nation heritage was before the court.
[30] However, with respect to the case at bar, my view is that the respondent can call the evidence necessary on the issue of the children’s First Nation heritage without the necessity of adding the Batchewana First Nation as a party. Mr. McCabe is able to call evidence to correct biases and misconceptions and to provide the point of view as to how the children would be raised as part of the Batchewana First Nation community living on the Reserve. Mr. McCabe does not need the Batchewana First Nation to be a party to do this or to adduce this evidence. To add the Band as a party would only serve to unduly delay and complicate the proceedings before the court, as well as create added expense to the applicant and the respondent, which they both can ill-afford to bear.
[31] For the Reasons set out above, the motion brought by the Batchewana First Nation at Tab 7 of the continuing record to be added as a party in these proceedings, is dismissed.
[32] Although this relief was not formally claimed in the notice of motion at Tab 7 of the continuing record, counsel for the Band suggested in oral argument that if the court would not permit the Band to be a party, that, in the alternative, the Band should be granted intervener status in the application.
[33] Although this request was not formally made in the motion, the court, in my view, has the inherent jurisdiction to consider this request as ancillary to the relief request by the Band in its motion.
[34] The first starting principle is that neither the Children’s Law Reform Act or the Family Law Rules provide for interveners to be appointed by the court. This does not prevent the court from appointing the Band as amicus curiae, or friend of the court, if the circumstances warrant such an appointment.
[35] The role of amicus curiae is not defined by legislation. It is in the discretion of the court guided by jurisprudence. In Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada (1990), 1990 6886 (ON CA), 74 O.R. (2d) 164, Mr. Justice Dubin, speaking for the majority of the Ontario Court of Appeal, noted:
“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.”
[36] With respect to the nature of the case factor noted above, in Childs v. Desormeaux (2003), 2003 47870 (ON CA), 67 O.R. (3d) 385 (Ont. C.A.), Chief Justice McMurtry observed that much litigation falls in between the private and constitutional or public spectrum. The closer a case is to the purely private end of the spectrum, the higher the burden will be on those seeking to intervene as amicus.
[37] A further consideration in deciding whether to appoint amicus curiae is whether or not the parties to the litigation have representation through legal counsel. One of the roles of amicus curiae is to help the court if no one responds to an appeal or a party is unrepresented. R. v. Lariviere 2001 SCC 93, [2001] 3 S.C.R. 1013 (S.C.C.).
[38] In my view, the fact that the case at bar is a private matter that does not have any public issues, the onus on the Band to satisfy the court that it is necessary for it to intervene, is much more onerous than if the matter was one of a public nature.
[39] In my view, the contribution that the Band can make as a friend of the court is outweighed by the resulting prejudice to the parties to the litigation by the additional complexity, inherent delay and increased costs associated with such intervention. It is always in the best interest of children involved in litigation that the matter is adjudicated as quickly as possible and as cost-effectively as possible.
[40] The Batchewana First Nation can accomplish more in advancing the importance of the children’s aboriginal heritage through the evidence that the Band members can provide than it can by participating in the proceedings by intervener status or amicus curiae.
[41] Accordingly, the alternative relief sought by the Batchewana First Nation is dismissed.
[42] If costs of the motion at Tab 7 of the continuing record are in issue, the applicant, respondent and Batchewana First Nation are to deliver written submissions, no longer than five typed pages in length, including attachments, by December 15, 2014. These submissions shall have attached to it a bill of costs and any written offers to settle exchanged.
Justice E. Gareau
Released: November 26, 2014
COURT FILE NO.: 3145/14
DATE: 2014-11-26
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Christine Elaine Veenstra
Applicant
– and –
Robert Steven McCabe
Respondent
Moving Party – Batchewana First Nation
REASONS ON MOTION
Justice E. Gareau
Released: November 26, 2014