Court File and Parties
Zadeh v Poorsina, 2020 ONSC 4164
ONTARIO Superior Court of Justice
at 393 University Avenue, 10th Floor Toronto, ON M5G 1E6
Applicant(s): Arman Khorasani-Zadeh Counsel: Michelle Sample
Respondent(s): Sania Poorsina (deceased) Counsel: William H. Abbiot and Vivian Li
Before: Mr. Justice Diamond
Endorsement
Order to go in accordance with minutes of settlement or consent filed.
Introduction
By Endorsement dated June 25, 2020 of Justice Shore, I was designated to conduct a telephone hearing on July 2, 2020 to address a motion brought by the parents of the deceased respondent Gholamreza Poorsina and Mahvash Jahangirvand (“the maternal grandparents”) seeking an order adding the maternal grandparents as parties to this proceeding, and “an order that the maternal grandparents shall continue this litigation.” The maternal grandparents are ultimately seeking an order granting them access to the parties’ daughter, whom they have apparently not seen since mid-February 2020. In accordance with the Chief Justice’s Notice to the Profession dated March 15, 2020 and subsequently updated on April 2, 2020 and May 13, 2020 (“the Notice”), Justice Shore reviewed the maternal grandparents’ motion materials and found that the relief sought therein, specifically the issue of whether the material grandparents should be added as parties to this proceeding to “continue this litigation for the respondent”, presumptively fit the urgency requirement as set out in the Notice. In my view, and consistent with the position taken by the applicant since the respondent’s tragic death on February 18, 2020, this motion is ill-conceived.
Analysis
To begin, the Court is bound by the contents of Rule 11.01 of the Rules of Civil Procedure which provides as follows: “Where at any stage of a proceeding the interest or liability of a party is transferred or transmitted to another person by assignment, bankruptcy, death or other means, the proceeding shall be stayed with respect to the party whose interest or liability has been transferred or transmitted until an order to continue the proceeding by or against the other person has been obtained.” The respondent passed away with a will, and counsel for the maternal grandparents advised during the telephone hearing that the respondent’s brother was named under the will as the respondent’s executor and estate trustee. There is no evidence in the maternal grandparents’ motion materials relating to the respondent’s will, or the status of the administration of her estate. What is clear is that until an Order to Continue is obtained (and no such relief was sought before me), this proceeding is stayed and no active steps can be carried out. A request for the issuance of an Order to Continue by the registrar in accordance with Rule 11.02 of the Rules of Civil Procedure may be brought on proper evidence, and nothing in this Endorsement precludes such a step from being pursued. However, until then this proceeding is and remains stayed.
However, even if an Order to Continue had been obtained, this motion cannot succeed. Rule 7(5) of the Family Law Rules provides that the Court’s power to add a person as a party to a family proceeding is discretionary. As noted by Justice Greer in Linett v. Linett, 2012 ONSC 6894, that discretion ought to be exercised very sparingly unless the proposed parties have a legal interest in the issues joined in the proceeding. The principles upon which the Court should exercise its discretion under Rule 7(5) are set out in the decision of Justice Gordon in Pinnell v. Pinnell, 2017 ONSC 7031: 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.
The difficulty with the maternal grandparents’ argument is that during a case conference before Justice Horkins on August 2, 2019, the parties settled all issues in this proceeding. The parties executed a formal Consent with the preamble clearly stating “the parties hereby consent to resolve all issues in the herein proceeding on a full and final basis in accordance with the following terms”. Thereafter, the Consent set out 19 specific paragraphs resolving all issues between the parties including equalization, child support, spousal support and custody/access. Accordingly, there is nothing that the maternal grandparents could add to this proceeding if they were made parties at this late stage. The maternal grandparents argue that the proceeding was never formally settled as no consent Order was taken out, and the issue of holiday access was still unresolved which resulted in a further case conference being scheduled. This is a distinction without a difference, as the Consent did in fact resolve the issue of holiday access, requiring both parties to share their holiday access equally. The fact that the parties could not agree upon how to divide up their 2019 Christmas holiday schedule (a fact which is unfortunately now moot) does not detract from the fact that this proceeding was settled. The maternal grandparents cannot assist the Court in resolving any outstanding matters between the parties, as no such outstanding matters exist. The maternal grandparents are seeking to advance their own claim for access to the parties’ daughter, and just as in Pinell, they must do so by commencing their own application.
The maternal grandparents rely upon the unreported decision in Schmeler v. Schmeler (September 24, 2018, Parry Sound Court File FS-15-09-000) which granted party status to grandparents after the father (the grandparents’ son) died intestate, for the purpose of permitting the grandparents the opportunity to advance claims for custody and/or access to the children of the marriage. The Court in Schmeler made no mention, or perhaps was not advised, of the consequences of Rule 11.01 of the Rules of Civil Procedure, nor was the test as set out in Pinnell considered or applied. In my view, the Schmeler decision ought not to be followed and is not binding upon me in any event.
Disposition
The maternal grandparents’ motion is thus dismissed without prejudice to their right to commence their own application for access. With a view to ensuring efficiency, I am ordering that the maternal grandparents’ application may be issued in Toronto (even though the applicant has apparently relocated to Holland’s Landing) without prejudice to the applicant’s position that the trial of this action proceed in another jurisdiction. I am also ordering that counsel for the applicant shall either agree to accept service of the maternal grandparents’ application, or provide counsel for the maternal grandparents with the applicant’s address for service.
Costs
I would urge the applicant and the maternal grandparents to try and resolve the issue of the costs of this motion. If those efforts prove unsuccessful, they may serve and file written costs submissions totaling no more than five pages (including a Costs Outline) in accordance with the following schedule: (a) the applicant shall serve and file his costs submissions within 7 business days of the date of the release of this Endorsement; and (b) the maternal grandparents shall serve and file their responding costs submissions with 7 business days of the receipt of the applicant’s costs submissions.