C.M.M. v. D.G.C., 2015 ONSC 1816

Court File and Parties

COURT FILE NO.: FS-13-18928

DATE: 20150319

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: C.M.M., Applicant

AND:

D.G.C. and J.M., Respondents

BEFORE: C. Horkins J.

Counsel

Jeffery Wilson and Jessica Braude, for the applicant

Valois P. Ambrosino, for the respondent D.G.C.

No one appearing for the respondent J.M.

HEARD at Toronto: March 11 and 12, 2015

ENDORSEMENT

[1] This endorsement is being released together with my reasons arising from the applicant’s (“the child”) two-day motion. Additional facts are set out in the companion reasons and should be read together with this endorsement.

[2] In addition to the child’s motion, there were two other motions before me at the same time. A motion brought by the respondent and a motion brought by the respondent’s partner who is not a party to this application.

[3] The respondent brought a motion for summary judgment against the respondent J.M. (“JM”). On consent, the summary judgment motion was adjourned sine die.

[4] The respondent and his partner each brought a motion to adjourn the child’s motion. I refused the request for an adjournment. These are my reasons for doing so.

[5] The dates for the child’s motion were set at a case conference that the respondent and his partner attended on March 11 and 12, 2015. The dates were chosen to accommodate everyone’s schedule. No one expressed the need to delay the motions to some later date. It was clear to the respondent and his partner at the case conference that the child was seeking a variation of the Wilson order.

[6] The respondent served a cross-motion on March 10, 2015 and asked that the child’s motion be adjourned until the following was completed:

(1) The file of Linda Dranoff was delivered pursuant to the order of Justice D. Wilson

(2) The child delivered “a properly sworn financial statement and supporting documents”.

(3) Questioning is completed.

[7] Linda Dranoff was counsel for JM when the Agreement was signed on March 25, 1999. Justice D. Wilson ordered that the file be produced. Since the child is not bound by the Agreement, the absence of Ms. Dranoff’s file was irrelevant to the respondent’s ability to proceed with the child’s motion. In any event, the respondent has had ample time to take steps to secure this file and has not done so.

[8] The child has complied with her obligation to deliver a sworn financial statement along with documents. By contrast the respondent has failed to do so. His disclosure is seriously deficient and he is in breach of the order of Justice D. Wilson (“the Wilson order”) directing him to make disclosure. The respondent seems to complain about the lack of financial disclosure from JM and he seeks to blame the child for same. If he needs disclosure from JM, he could have questioned her since the Wilson order granted this right. As well, I gave him the opportunity to do so. He did not question JM. In any event, this alleged lack of disclosure from JM is not a defence to the child’s right to receive interim child support and did not justify adjourning the child’s motion.

[9] The respondent has had ample time to conduct questioning and has not done so. There was no reason why the child’s dire need for interim child support should be delayed because he now claims he needs to conduct questioning.

[10] The respondent’s partner delivered a motion to the court late on March 10, 2015. Such a motion was not raised at the case conference, when the motions were scheduled. The partner refers to herself as I.W. (“IW”). There is no order in this application that directs her name to be initialized. I will refer to her as IW because she has not provided the court with her full name.

[11] IW seeks an order adding herself and her three children as parties to the child’s application, an order that she be permitted to act as their litigation guardian for her children and an order adjourning the child’s motion so that she can consult with counsel. She says that the relief materially affects her daughters and this is why she brought her motion. The respondent is the father of the three children.

[12] Seeking to bring this motion at the last minute is contrary to the Family Law Rules and prejudicial to the child who had no opportunity to respond. IW addressed the court at the start of the first day and asked that I hear her motion. I advised IW that if time allowed after the hearing of the child’s motion, I would consider her request. I had already denied the adjournment.

[13] After the child’s motion concluded, IW again raised the request that I hear her motion. Based on what she told the court it was apparent that she wanted the court to hear from her directly concerning the child’s motion to vary the restraining order. The respondent and the child had already agreed to vary the restraining order and, in effect, replace it with a no contact order.

[14] If IW had relevant evidence to add to this issue, the respondent could have filed an affidavit from her on the child’s motion. It appears that IW takes an active interest in this application since she has attended court with the respondent on every occasion since my appointment as case management judge. Assuming she needs to consult with a lawyer, she has had ample opportunity to do so.

[15] Adding IW as a party to allow her to offer her evidence is unnecessary. At best, she is a potential witness (assuming she has something relevant to offer concerning the issues in the child’s application). She is not a proper party to the child’s application.

[16] It is inconceivable why any court would add her children as parties to this application. Clearly, they are not proper parties. The respondent obtained an order initializing the names of the parties because he and IW were concerned with the impact on their children if they discovered that their father, the respondent, has another daughter. The court questions how serious this concern can be, when IW is asking to add the children as parties. Such concern, real or not, is not relevant to the child’s right to claim child support from the respondent, who I have declared to be her father. IW’s children are not proper parties.

[17] I dismiss IW’s motion.

C. Horkins J.

Date: March 19, 2015