Court File and Parties

COURT FILE NO.: 49578-14 DATE: 2017-11-24 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: A.C.V.P., Applicant AND: A.M.T., Respondent

BEFORE: The Honourable Mr. Justice D. J. Gordon

COUNSEL: Raymond Wrubel, Counsel for the Moving Parties, Barry Taylor and Marie Taylor William Clayton, Counsel for the Applicant/Responding Party No one appearing for the Respondent, A.M.T.

HEARD: November 22, 2017

Endorsement

[1] In their motion, the maternal grandparents seek leave to be added as parties and to serve and file material, pursuant to section 16(3), Divorce Act, and Rule 7(5), Family Law Rules. If successful on this motion, they intend to claim access to their grandchildren. The applicant father opposes the motion. Mr. Wrubel reported that Ms. Towlson, counsel for the respondent, took no position and would not be participating.

[2] This is a high conflict case involving parenting and other issues. The application was issued on November 17, 2014. The answer is dated November 19, 2014. Numerous temporary orders have been granted. At present, father has sole custody of the children while mother has supervised access. A trial management conference is scheduled for January 8, 2018. The trial, subject to this motion, should occur at the sittings in February 2018.

[3] The relief sought is discretionary. No guidance is provided in the legislation. Nor is such set out in Rule 7(5), Family Law Rules, unlike Rule 5.03, Rules of Civil Procedure.

[4] In Noik v. Noik, 2001 CarswellOnt 324 (Ont. S.C.J.), Nelson J. provides a helpful review of the relevant principles, summarized as follows:

(a) no party should be added unless an order could be made in favour of, or against, such person;

(b) a party should only be added if his/her presence would assist the court in resolving the issues in the case; and

(c) a party should not be added if the applicant’s claims against the current respondent can properly be adjudicated without the proposed added party.

[5] The grandparents cannot meet this latter requirement. The claims, as presently pleaded, are between the parents. The grandparents’ presence, as parties, will not assist the court. They may be witnesses at best.

[6] Rule 2, Family Law Rules, cannot be used as the basis to avoid procedural requirements and longstanding principles in the absence of specific legislative or regulatory amendment. Adding parties was never meant to allow individuals to join into existing litigation solely to advance their own claims.

[7] The correct procedure is an application.

[8] Regardless, I am of the view the request of the grandparents is too late. There has been considerable and unnecessary delay in this case. The children have an absolute entitlement to a resolution of their parents’ dispute. Such will occur, absent settlement, in three months. Adding new parties and new claims will delay the trial at least nine to twelve months. Additional conferences will be required. Motions are likely. The Children’s Lawyer will be asked for a fresh investigation as the view and preferences of the children, at minimum, must be ascertained. Such delay is not in the best interests of the children in this case.

[9] For these reasons the motion is dismissed. If counsel are unable to resolve the issue of costs, written submissions are to be exchanged and delivered to my chambers within 30 days of the release of this decision, failing which the issue of costs will be considered settled.

D. J. Gordon J. Date: November 24, 2017