Court File and Parties

Court File No.: FC-18-1331 Date: 2018-11-29 Superior Court of Justice - Ontario

Re: Christiana Reeves, Applicant And: Faith Cooper, Respondent

Before: Justice Mark Shelston

Counsel: Erin Lepine, for the Applicant Faith Cooper, self-represented

Heard: November 1, 2018 (at Ottawa)

Endorsement

Overview

[1] Should the biological great aunt of a child whose father is deceased and mother has disappeared be permitted to be added as a party in a custody application brought by the child’s non biological caregiver?

[2] The child is Ellen Grace Cooper, born on February 13, 2017. Her father died on February 8, 2018. Her mother left Ottawa in September 2017 and has not returned or made any contact with the applicant since then. Her last known whereabouts are in Cambridge, Ontario, but her current address is unknown.

[3] On July 9, 2018, the applicant commenced an application seeking various claims for relief including, but not limited to, sole custody of the child and access by the natural mother to be supervised.

[4] On August 9, 2018, the applicant received permission to serve the court proceedings on the respondent by sending a direct message to the respondent’s Instagram accounts. Service was effected and the applicant proceeded to schedule an uncontested trial for November 1, 2018.

[5] On October 25, 2018, the great aunt of the child namely, Ms. Ellen Dennis, brought a motion to be added as a party in this matter and for the uncontested trial on November 1, 2018 to be vacated. On that date, Justice MacKinnon dismissed the motion and indicated that the proper procedure was for the motion to be heard on November 1, 2018, the date scheduled for the uncontested trial.

[6] On November 1, 2018, the parties appeared before me. At that time, I reserved on the decision as to whether or not Ms. Dennis would be added as a party. I adjourned the uncontested trial and ordered, on an interim and without prejudice basis, the applicant be granted temporary custody of the child pending further order of this Court.

Factual Findings

[7] The applicant alleges that she has been the main caregiver of the child since September 2017. She alleges that, during the mother’s pregnancy, the mother lived with her great grandmother and the applicant would come over every day to help because the great grandmother’s health was poor. After the birth of the child, the mother continued living with her great grandmother and the applicant went to the great grandmother’s home every day to help the mother care for the child and a disabled son, David.

[8] By September 2017, the father was in jail for a breach of the conditions of his release and the mother sought to go to Toronto for the Labor Day weekend. There is a dispute as to whether the mother left the child with the applicant or the great grandmother. In any event, the child is currently in the care of the applicant and has been since September 2017.

[9] The applicant seeks sole custody of the child. The child’s great maternal grandmother and paternal grandmother both live in Ottawa and the applicant states that she maintains regular contact with both of them and ensures that they have an opportunity to visit with the child.

[10] Ms. Ellen Dennis is the biological great aunt of the child. She was raised as an older sister of the respondent mother. She is 26 years of age, married and was living in Edmonton, Alberta working as a community support worker with people with mental and physical challenges. Her husband, a successful businessman currently in West Africa, will eventually move to Ottawa to join her. Once she became aware of this proceeding in mid-October 2018, she commenced a motion on October 22, 2018 to be added as a party and to vacate the trial.

[11] In addition, Ms. Dennis physically left her home and job in Edmonton, moved in with the great grandmother on a temporary basis, and found a full time job as a youth worker.

[12] Ms. Dennis’ position is that she seeks to be added as a party in this proceeding to advance a claim for sole custody. She states that, despite living in Edmonton, she flew to Ottawa to meet her niece after she was born in February 2017.

[13] She returned to Ottawa in November 2017 at which point she indicates that the child was left with the maternal great grandmother and not the applicant. At that time, Ms. Dennis wanted to return to Edmonton with the child and the natural father with the plan that the biological father would work on his parenting skills. Ms. Dennis alleges that the applicant was a paid caregiver to care for her brother David and the child.

[14] In November 2017, Ms. Dennis alleges that the applicant and the great grandmother of the child agreed that the applicant would care for the child and allow the paternal grandmother contact with the child while awaiting the biological parents’ return to assume care of the child.

[15] Ms. Dennis returned to Ottawa on February 8, 2018 to prepare for the child’s first birthday. On February 9, 2018, the parties received news that the child’s natural father had died in a car accident. Consequently, the parties attended the funeral. Ms. Dennis indicated that she wanted to take the child back to Edmonton but did not do so as she felt it was inappropriate especially with the loss felt by the deceased father’s grieving mother.

[16] Many of the allegations made by both parties are disputed such as when Ms. Dennis alleges that the applicant manipulated the maternal great grandmother’s vulnerable state to take advantage to keep the child. All allegations are denied.

[17] Even though the only parties to the proceeding were the applicant and the mother, counsel for the applicant sent a letter to the great grandmother on October 9, 2018 and to the paternal grandmother on October 12, 2018 respectively, notifying them of this application, that there was an uncontested trial set to proceed on November 1, 2018 and indicating that if they would like to support the applicant in her application, they should contact counsel for the applicant.

[18] Instead, the maternal great grandmother contacted Ms. Dennis who brought her motion to be added as a party. She alleges that she has the support of the families of the biological parents.

[19] Ms. Dennis alleges that the family is shocked that the applicant is seeking sole custody of the child.

Parties’ Position

[20] The applicant opposes the motion that the great aunt be added as a party to these proceedings on various grounds including that the great aunt has never had care and control of the child, does not have a legal interest in the matter, her proposed plan of care is a dramatic change in the child’s life and her addition to the proceeding will further delay the proceedings.

[21] The respondent’s position is that she wishes to present a plan for the child as she is a biological relative. The child’s biological family, including the maternal great grandmother and paternal grandmother had no knowledge of the applicant’s application until they were advised in October 2018 as she understood that the applicant was a paid caregiver. She submits that the child’s best interests require a full hearing and that the matter will not be delayed by her intervention.

Legislative and Jurisprudential Framework

[22] Rule 7(4) (5) of the Family Law Rules, O. Reg 114/99 states:

7(4) in any of the following cases, every parent or other person who has care and control of the child involved, except a foster parent under the Child, youth and family services act, 2017, shall be named as a party, unless the court orders otherwise:

1. a case about custody or of access to a child
2. a child protection case
3. a secure treatment case

[23] Rule 7(5) of the Family Law Rules states 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.

[24] I agree with the applicant that, at this time, Ms. Dennis is not a parent to the child and has never had care and control of the child; and consequently, she does not have standing to be added as a party pursuant to rule 7(4) of the Family Law Rules unless this Court orders otherwise.

[25] The central question is whether or not I should exercise my discretion to add Ms. Dennis as a party in these proceedings pursuant to Rule 7(5) Family Law Rules.

[26] The discretion to exercise is to be used sparingly and only when necessary for the just determination of litigation as stated by Justice McSorley in Breen v MacArthur, 2016 ONSC 2454 at para. 5, Justice McSorley stated:

Rule 7(5) states that 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. This rule gives the court discretion with respect to whether a person is added as a party. The rule itself provides no criteria or direction as to how the court should exercise its discretion. There can be no doubt that the court has the discretion to add persons as parties to a case. However, that discretion should be used sparingly and only when necessary for the just determination of the litigation.

[27] In a child protection case, Justice Campbell in Children’s Aid Society of London and Middlesex v. S. H., [2002] O. J. No. 4491 set out the following principles to be considered before adding a party in a child protection proceeding:

1. whether the addition of the party is in the best interests of the child,
2. whether the addition of the party will delay or prolong proceedings and duly,
3. whether the addition of the parties is necessary to determine the issues, and
4. whether the additional party is capable of putting forward a plan that is in the best interests of the child.

[28] The criteria set out in the Children’s Aid Society of London and Middlesex has been applied in non-child protection proceedings as in Santilli v. Piselli, 2010 ONSC 2874, 87 R.F.L. (6th) 135 and Worrall v. Worrall, 2012 ONSC 4388. I agree with the analysis of Justice Mitrow in the Worrall decision where he stated at para. 32 the following:

32 By way of summary, the following criteria, which are not exhaustive, can be applied to determine when a person should be added as a party pursuant to sub- rule 7(5) of the Family Law Rules:

a. is the person a “necessary” party to determine all issues in the case; b. in determining “necessity”, it will be unlikely that necessity can be established if the proposed party has no “legal interest” in the case, meaning that no order can be made for or against, the proposed party; c. in a circumstance or a proposed party has no legal interest in the case, the court may exercise his discretion to add the proposed party in situations (in this list is not meant to be exhaustive) where there are unusual facts, there is evidence of some collusion between the parties in the matrimonial proceeding or the case is egregious. The exercise of the discretion to had parties in the circumstances should be exercised very sparingly.

Analysis

[29] This is an unusual case. Custody of this young child is being sought by a non-biological caregiver. The father is deceased and the mother has disappeared. In Ottawa, there is the maternal great grandmother, a paternal grandmother and a great aunt. The great aunt seeks custody of the child with the support of the families of the biological parents.

[30] There is evidence that neither of these grandmothers were aware that the applicant was applying for custody of the child. Ms. Dennis has, on two occasions, considered taking the child back to Edmonton.

[31] Ms. Dennis has been with the child three times since the child’s birth while the applicant has been the main caregiver of the child since at least early September 2017.

[32] The applicant’s plan is that she will be the main caregiver for the child. She will maintain her routine and ensure regular contact with the great grandmother and the paternal grandmother. She proposes a plan that will maintain consistency and stability in the child’s life. She also proposes the child attend a Catholic school with French immersion when she is old enough and she will facilitate a relationship between the child and her mother, if the mother ever returns to Ottawa.

[33] The aunt’s plan is that she has moved to Ottawa where she has obtained employment and wishes to care for the child with her husband. The aunt also alleges that, while she is 26 years of age, the applicant is in her fifties, and this factor must be considered by the court when the child is so young.

[34] She submits that, as a blood relative, and with the support of the biological families of the parent’s, she could offer a viable alternative to the applicant and that her plan should at least be considered in accordance with the provisions set out in the Children’s Law Reform Act, R.S.O. 1990, c. C.12.

[35] The custody decision to be made for this child is of the utmost importance. The child’s best interests are to be considered. While the child has currently been residing with the applicant, there is conflicting evidence as to who the mother left the child with. The biological family of the child was not aware that the applicant had decided to apply for sole custody of the child. While the applicant is not a biological relative and Ms. Dennis is, that is only one factor to be considered in determining the best interests of this child.

[36] I find that the circumstances in this case are unusual and that the court should have all relevant information before it prior to adjudicating on the best interests of this child. I do not find that the intervention of Ms. Dennis will delay this matter.

[37] I exercise my discretion to add Ms. Dennis as a party in these proceedings. I order that Ms. Dennis serve and file her Answer and Affidavit in support of a claim for custody or access on the applicant and the respondent mother by December 28, 2018. I also order the applicant to file any Reply by January 11, 2019 with the same order for service on the respondent mother.

[38] I order that service on the respondent mother shall be effected by sending a direct message to the respondent’s Instagram account “baddiedagreat.”

[39] Currently, there are trial dates available in September 2019. I have placed this matter on the September 2019 trial sittings. The parties will have to proceed to a case conference and a settlement conference. There may be motions for temporary relief.

Costs

[40] Ms. Dennis is the successful party on this motion. While the normal rule is that costs are to be assessed at every step, I exercise my discretion and order that costs will be reserved to the judge making the final order in this matter.

Shelston J. Date: November 29, 2018