Court File and Parties

COURT FILE NO.: FS-16-20779 DATE: 20160525 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Raquel Bernadette Grand et al, Applicants AND: The Attorney General of Ontario and Deputy Registrar General for the Province of Ontario, Respondents

BEFORE: Chiappetta J.

COUNSEL: Martha McCarthy and Joanna Radbord for the Applicants Hart Schwartz and Sara Weinrib for the Respondents

HEARD: May 24, 2016

Endorsement

[1] By endorsement dated May 19, 2016, Justice Kiteley noted that as of 1:40pm, there were three 14B motions before the court, all relating to the expiration of time within which the Respondent was required to file an Answer and the impact of the case conference scheduled for May 30, 2016. Her Honour ordered that counsel attend on May 24, 2016 at 2:30pm before me at which time I would hear submissions in open court with respect to the issues raised in the Form 14B motions. The following is my endorsement upon hearing the submissions as contemplated.

Background

[2] The Applicants commenced this proceeding by Application dated April 8, 2016. They seek the assistance of the court on behalf of nine families who currently have seven children amongst them, with a baby due any day now. The Applicants have different family configurations and personal circumstances but all are LGBTQ parents or intended parents who seek relief which includes a declaration that 12 sections of the Children’s Law Reform Act, R.S.O. 1990, c. C. 12 (CLRA), and 7 sections of the Vital Statistics Act, R.S.O. 1990, c. V.4 (VSA) are unconstitutional and of no force and effect, with a suspension of the remedy for no more than six months, and an order that this court maintain jurisdiction until the correction of the impugned provisions. Named as Respondents are the Deputy Registrar General for the Province of Ontario and the Attorney General for Ontario Constitutional Law Branch (collectively the Respondent).

[3] On April 8, 2016, the Applicants served the Deputy Registrar General for the Province of Ontario, who is represented by the Attorney General for Ontario Constitutional Law Branch with the Application, a Notice of Constitutional Question, Affidavits in support of the Application and a notice that a case conference in this matter is scheduled for April 15, 2016 at 3:30pm. The Attorney General for Ontario Constitutional Law Branch was served directly on April 11, 2016.

[4] On April 13, 2016, the Respondent’s counsel wrote to the Registrar and requested that this matter be removed from the case conference list on April 15, 2016, as “the Respondent will not be able to review the materials and obtain instructions in the few days since first receipt of the materials.” Counsel noted therein that “the case conference has not been set down in accordance with applicable rules which are meant to ensure that parties are in a position to have instructions to move the case forward.” The Applicants consented to an adjournment of the case conference to the Respondent counsel’s first available date following the deadline for delivery of the Respondent’s Answer. The case conference was adjourned to May 30, 2016.

[5] On April 13, 2016, by e-mail at 5:16pm, the Respondent’s counsel advised the Applicants’ counsel “to ensure that there is no misunderstanding, I do not yet have instructions in this matter and that includes instructions as to the position that will be taken in response to the Applications, what material may or may not be filed and the timing of any such material.”

[6] On April 13, 2016, by e-mail at 10:33pm, the Applicants’ counsel advised the Respondent’s counsel that:

[C]ontrary to your letter to the Registrar today the Rules do not require an Answer to be filed prior to a case conference… I consented to an adjournment of the conference to a date following the filing of your Answer. You were not available for the conference on May 20 and you declined to proceed on the other available dates of May 25 or May 27… having given your office the courtesy of a lengthy adjournment, we expect your Answer and conference brief on the timeline required by the Rules… one of the Applicant families has a baby due in May, and many of the Applicants’ children do not have secure parental recognition… this case requires your client’s prompt attention.

[7] On May 10, 2016, one day prior to the expiry of its time to file an Answer, the Respondent filed a 14B motion seeking directions under r. 1(7) of the Family Law Rules, O. Reg. 114/99 (the Rules) to set a schedule for the filing of materials in relation to the constitutional challenge, including an order under r. 3(5) of the Rules extending the time to file its Answer. The Respondent asked that the motion be heard at the case conference scheduled for May 30, 2016. The Respondent did not file any evidence in support of this motion. Rather, it submitted as argument that “this case is not an ordinary Family Court application but a major constitutional challenge”…”it is imperative that Ontario take the time to get its position right”….”Ontario must consider all of the potential situations that can arise when assisted reproduction is used”…”changes to the Children’s Law Reform Act would have far reaching implications throughout Ontario”.... and “is interrelated with a number of other statutes and regulations in Ontario.” Therefore, “specific instructions on Ontario’s position will require more time to obtain than would be the case with an ordinary respondent in family proceedings.”

[8] On May 13, 2016, the Applicants filed their own 14B Motion wherein they seek that the Respondent’s motion not be heard as it is not entitled to participate in the case pursuant to r. 10(5)(b) of the Rules, and that the Respondent’s time to file an Answer be extended to May 24, 2016 to permit a meaningful and productive case conference. In the alternative, the Applicants ask the court that should the Respondent’s 14B motion be argued, that it be done so by oral motion in open court, in advance of the case conference scheduled for May 30, 2016. In furtherance of their motion the Applicants relied upon the affidavit of Leigh-Anne Yawlak sworn May 13, 2016, the affidavits previously filed in support of the Application and the affidavit of Dr. Lori Ross, dated May 10, 2016.

[9] Dr. Ross is an Associate Professor in the Division of Social and Behavioural Health Sciences, Dalla Lana School of Public Health, University of Toronto. She deposed that her two main areas of research specialization are mental health during pregnancy and the postpartum period and mental health of LGBT people. She is one of very few scholars to combine these interests to investigate mental health among LGBT parents. In her 48-paragraph affidavit, Dr. Ross describes the potential adverse psychological impact in delaying legal recognition of intended parents at the time of birth, and the ways in which legal recognition and the ability to use their preferred label regardless of gender would promote the health of LGBT families.

[10] On May 19, 2016, the Respondent filed a second 14B motion wherein it seeks an order dismissing some of the relief sought by the Applicants on their above noted 14B motion. Further, it asks that its motion for directions be argued by oral motion in open court or in the alternative at a case conference on or after May 30, 2016. In support of this motion the Respondent relied upon the affidavit of Sallie Narayan, legal assistant with the Respondent, dated May 19, 2016, attaching various correspondence between counsel. The correspondence demonstrates an intention by the Respondent’s counsel to use best efforts to have instructions in time for the May 30, 2016 case conference and that without instructions, the Respondent is not in a position to provide an Answer.

Analysis

[11] The Deputy Registrar General for the Province of Ontario was served with the Application on April 8, 2016. The Attorney General for Ontario Constitutional Law Branch was served directly on April 11, 2016. The Respondent had 30 days after being served with the Application to serve and file an Answer (r. 10(1) of the Rules). To date, the Respondent has not filed an Answer. By its motion dated May 10, 2016, the Respondent asks for an open-ended extension of time to file its pleading, and not for an extension to a particular date. The Respondent asked that the motion be heard on May 30, 2016, knowing that at best it would only have instructions by that day and not a completed Answer. Finally, the Respondent asked that on May 30, 2016, the court provide directions, presumably in the hope that it would have received instructions by that date and would be in a position to commit to a future delivery date for its pleading.

[12] While I appreciate the Respondent’s position that the Application raises a complex constitutional question, this does not excuse its complete disregard for r. 10(1), designed in part to promote the primary objective of the Rules, as stated in r. 2(2): to enable the court to deal with cases justly. The procedure must be fair to all parties. There cannot be different Rules for different people, depending on the substantive issues raised in a specific case. Rather, the court promotes the primary objective by active management of all cases, including cases such as this one wherein the substantive issues raised by the Application are both fundamentally important and significantly complex: see rr. 2(4) and 2(5).

[13] It is not acceptable that the Respondent filed its motion to extend the r. 10(1) timeline and for directions on the eve of the expiry of the 30-day period, with a return date 49 days after receiving the Application. Any such motion is properly returnable within the 30 days. To do otherwise renders the mandatory Rules meaningless and is disrespectful to the Applicants and the court.

[14] The Applicants ask that the Respondent’s 14B motion not be heard because the Respondent is not entitled to participate in the case in any way pursuant to rr. 10(5) and 1(8.4)(2). I decline to make such an order, although as will be set out below, the Respondent’s conduct is not without its sanctions. The Respondent’s motion, while untimely, raises important issues that warrant the court’s adjudication. I agree with the Respondent that this is a case wherein it is advisable for the court to set timetables and otherwise control the litigation progress: r. 2(5)(d). I am also of the view that extending the time for the Respondent to file an Answer will enable the court to deal with the substantive issues fully and justly, with the benefit of the Respondent’s position, evidence and argument.

[15] The Respondent advised the court today that it has now received instructions “up to a point” and has prepared a draft pleading. The Respondent intends to make a concession therein that at least 1 of the 19 sections raised by the Application is unconstitutional and request that it be given 12 months to correct the impugned provision. Further, the Respondent advised of its intention to bring a motion to adjourn the resolution of the Application for 12 months to await the legislative process. Both parties advised the court that setting a timetable for delivery of the Respondent’s Answer is the preferred way forward.

[16] In my view, the best resolution of the three 14B motions before me is to vacate the May 30, 2016 date for a case conference and use our remaining time today to conduct a case conference, with the intention of setting a date for delivery of the Respondent’s Answer and a date for a further attendance to set a timetable for the litigation, shortly after delivery of the pleading.

Costs

[17] The Respondent was primarily successful on his motions. He will be granted an extension to file an Answer and the court will set a timetable and control the process of the proceeding. It cannot be ignored, however, that the Respondent failed to file an Answer in accordance with r. 10(1) of the Rules. The Respondent failed to bring a motion to extend the time for filing an Answer until the eve of the expiry of the timeline, returnable 19 days after the expiry of the timeline. The Respondent’s counsel advised the Applicants’ counsel that at best the Respondent would have instruction on the day of the motion, and not an Answer. I have considered r. 24 of the Rules. In my view, the Respondent’s conduct preceding the motion was unreasonable. Further, the Respondent’s conduct warrants sanction under r. 1(8)(a) of the Rules, as a consequence of not serving and filing an Answer in accordance with the Rules. Costs of the motions are therefore fixed at $2,000 and made payable by the Respondent to the Applicants within 30 days.

Order to go:

1. The case conference scheduled for May 30, 2016 is vacated.
2. The case conference shall proceed today before Justice Chiappetta, who is the case management Judge.
3. The Respondent’s motions dated May 10, 2016 and May 19, 2016 and the Applicants’ motion dated May 13, 2016 are dismissed.
4. Costs of the motions are fixed at $2,000 and made payable by the Respondent to the Applicants within 30 days.

Chiappetta J. Date: May 25, 2016