Court File and Parties

CITATION: Dykstra v. Montreuil, 2015 ONSC 3941

COURT FILE NO.: FD 1480/14

DATE: 2015/06/18

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Jessica Yvonne Dykstra (Applicant)

AND:

Adam Hope Montreuil (Respondent)

BEFORE: Justice D. R. Aston

COUNSEL: Hamoody Hassan, for the applicant

Susan McGrath, for the respondent

HEARD: June 17, 2015

ENDORSEMENT

[1] Mr. Montreuil has added his father-in-law Calvin Dykstra as a party. Mr. Dykstra brings this motion to be removed as a party.

[2] Family Law Rule 7(3)(b)(ii) provides that the respondents in a proceeding are to include “every other person who should be a party to enable the court to decide all the issues in the case”. This rule does not mean that witnesses, however critical to the fact finding process, are to be made parties to the proceeding.

[3] Family Law Rule 7(1) limits the definition of parties to persons who make a claim or against whom a claim is made. A “claim” is more than an allegation. An allegation of “duress exerted by Calvin Dykstra” may be relevant to the determination of whether the separation agreement and the father’s underlying consent to the mother’s move with the children may be vitiated, but it is not a “claim” against Mr. Dykstra. Even if Mr. Montreuil’s claim for compensation for the costs of travel that he incurs to spend time with his children can be generously read in his pleading as a claim against Mr. Dykstra (and not merely a claim against the mother), there is no foundational cause of action pleaded. “Duress” is not a free-standing tort.

[4] The issue of the validity of the separation agreement or the father’s underlying consent to the relocation with the children only engages Mr. Dykstra in the capacity of a witness.

[5] Calvin Dykstra is therefore removed as a party respondent in the application. Mr. Montreuil is to pay Calvin Dykstra costs of the motion fixed at $1200 all inclusive.

“Justice D. R. Aston”

Justice D. R. Aston

Date: June 18, 2015