P.-S. v. S.N., 2013 ONCJ 201

COURT FILE No.: 253/12 DATE: 2013-04-18 Citation: P.-S. v. S.N. , 2013 ONCJ 201 ONTARIO COURT OF JUSTICE BETWEEN: L. P-S. Applicant — AND — S. N. and R. P. Respondents Before Justice Barry M. Tobin Heard on April 15, 2013 Sarah A. Weisman ............................................................................................. for the Applicant Daniel Ableser ............................................................................................. for the Moving Party TOBIN J.: ENDORSEMENT [ 1 ] The moving party, C. M., seeks an order that he be added as a respondent to this proceeding.

He brings this motion following the release of a report by a child psychiatrist that describes disclosures of sexual abuse carried out him made by the child who is the subject of this case. 1: THE PARTIES [ 2 ] The respondents, S. N. and R. P. ("mother” and "father" respectively), are the parents of the child, S. D. P. (the "child") born …, 2003. [ 3 ] The applicant, L. P-S., is the paternal grandmother of the child (the "grandmother"). Ms. P.-S. commenced an application issued May 18, 2012 in which she seeks custody of the child. [ 4 ] The mother filed an answer seeking the dismissal of the grandmother's claim.

In her Answer, she pleads that she already has a custody order dated April 7, 2008 [1] in her favour. [ 5 ] The father filed an answer in which he agrees with the claim made by the grandmother and wants access with the child. 2: FACTS [ 6 ] The moving party and the mother cohabit and together have a child who is now six months of age. [ 7 ] The moving party also has custody of his 8 year old son, Q.

There were custody proceedings between the moving party and Q.'s mother which were resolved in his favour in 2010. [ 8 ] Appended to the moving party’s affidavit as an exhibit is a document dated January 21, 2013 and entitled Medication Review signed by Dr. Claire Stroker, a child and adolescent psychiatrist. The document states that the child told the doctor the moving party touched her in a manner that would constitute sexual abuse.

The document contains the following statement: "Based on [the child's] presentation during this interview, [her] allegations of being sexually molested appear to be credible assertions." [ 9 ] The moving party denies any conduct which could possibly be interpreted as a sexual assault or molestation of the child. [ 10 ] The moving party has not been contacted by the local children’s aid society nor police with respect to this allegation. 3: POSITION OF THE PARTIES

[11] The moving party is supported in his request for party status by the mother. Her counsel did not file any material orattend at the argument of the motion. [12] Through counsel for the grandmother, the father advises he takes no position with respect to the relief sought. [13] The grandmother is opposed to the moving party being added as a party. 4: LEGAL CONSIDERATIONS [14] Counsel for the moving party argued that this motion is governed by r. 13.01(1) of the Rules of Civil Procedure. Thisrule is formulated as follows: A person who is not a party to a proceeding may move for leave to intervene as an added party if the person claims, (

a) an interest in the subject matter of the proceeding; (

b) that the person may be adversely affected by a judgment in the proceeding; or (

c) that there exists between the person and one or more of the parties to the proceeding a question of law or fact in common with one ormore of the questions in issue in the proceeding. [15] In support of this position, he relies upon S.G.B. v. S.J.L., 2010 ONCA 578 , [2010] O.J. No. 3738. In the S.G.B.case, a motion was brought before a panel of the Ontario Court of Appeal, by a child, for leave to intervene as an added party to theappeal brought by his father, S.G.B.

The Court of Appeal held that a motion for leave to intervene as an added party is governed by r.13.01(1). [16] With respect, I disagree with the moving party's submission. The Court of Appeal decision makes it clear the motion wasfor leave to intervene as an added party on the appeal. (See S.G.B. v. S.J.L. supra, para. 12.) The Family Law Rules do not directlyapply to the Court of Appeal.

Rule 1(2) of the Family Law Rules provides that these are the rules that apply to family law cases in theFamily Court of the Superior Court of Justice, the Superior Court of Justice and the Ontario Court of Justice. (See Family Law Rules, r.1(2) and Ireland v. Ireland (2011), 2011 ONCA 623 , 11 R.F.L. (7th) 278, at para. 25). In this court the Family Law Rules areto be applied. [17] It is r. 7 of the Family Law Rules that sets out who are to be parties in a case.

Subrule 7(5) provides: "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 thatperson." [18] Subclause 7(3)(b)(ii) provides that a person starting a case shall name: "every other person who should be a party to enable the court to decide all of the issues in the case." [19] There are also statutory provisions prescribing who are to be parties to a case dealing with custody of and access to achild. The parties to a case, brought in respect of a child under

Part III of the Children's Law Reform Act, include "any other personwhose presence as a party is necessary to determine the matters in issue." (See Children's Law Reform Act, clause 62(3)(d)) [20] The test to be applied in determining whether to add a party was set out in Noik v. Noik, (ON SC),2001 CarswellOnt 324 (Ont. S.C.J.) at para. 30 as follows: [30] In Peigan Indian Band v. Alberta (1998), 1998 ABQB 850 , 231 A.R. 201, 26 C.P.C. (4th) 357 (Alta. Q.B.), Chief JusticeWilliam K.

Moore of the Court of Queen's Bench, in determining whether to add Canada as a party, reviewed the relevant rule in Albertaand stated, at page 360 [C.P.C.]: The test under this Rule is generally phrased in one of two ways. First, under Bernhart v. Umisk Farms Ltd. (1982), 40 A.R. 549 (Alta.Q.B.), a defendant will not be added if the plaintiff's claims against current defendant can be properly adjudicated without the proposeddefendant. Amoco Canada Petroleum Co. v. Alberta & Southern Gas Co. (1993), (AB KB), 10 Alta. L.R. (3d) 325(Alta. Q.B.), adds a second question to the test (at 329).

The test whether Canada is a necessary defendant can then be framed as follows:

(1) Can the question between the Band and Alberta be effectually and completely settled without the addition of Canada? And

(2) Will the relief sought by the Band directly affect Canada, not in its commercial interests but in the enjoyment of its legal rights? At page 361 [C.P.C.], the Chief Justice, citing the case of Amon v. Raphael Tuck & Sons Ltd. (1955), [1956] 1 Q.B. 357, [156] 1 All E.R.273, 2 W.L.R. 372 (Eng. Q.B.), held that "necessary party" is not one that merely has relevant evidence. The Chief Justice cited withapproval a statement in Amon v.

Raphael Tuck & Sons Ltd. that makes it clear that it is unlikely that a potential defendant will be"necessary" if the plaintiff has no cause of action against that potential defendant. As the band had made no claim against Canada,Alberta's claim to have Canada added as a party failed as the information that the province sought could be obtained from Canada as awitness. 4: APPLICATION OF LEGAL CONSIDERATIONS [21] The moving party requests that he be added as a party for two reasons:

1) To protect his reputation as a prominent businessman; and 2) The report of Dr. Stroker is "...likely to provide Q.'s mother with a reason to renew her attempt to get custody of him." [22] The issue in the case between the applicant and the respondents concerns custody of the child. The applicant seeks norelief against the moving party. The moving party is not seeking custody of or access to the child. He seeks no relief with respect to thischild whatsoever. [23] The decision to add a party is a discretionary one.

This discretion, to allow a person to become a party where no order isbeing sought in their favour or against them, should be exercised very sparingly. The rationale for this is “[f]amily court cases wouldbecome unwieldy if courts exercise a broad discretion to add parties who have an interest in the outcome but who are not legally affectedthereby." (See Children's Aid Society of London & Middlesex v. J.P., (ON SC), [2000] O.J. No. 745 at para. 4) [24] The dispute arising in this case between the applicant and the respondents can be adjudicated without the moving partybeing added as a party.

Any evidence the moving party has that is relevant and admissible can be given by him as a witness. As statedabove, a "necessary party" is not one who merely has relevant evidence. [25] One of the purposes of the Children's Law Reform Act is to ensure that applications to court in respect of custody andaccess are decided on the basis of the best interests of the child. (See Children's Law Reform Act, s. 19(a)) [26] Whether the moving party abused the child will be one of a number of issues to be addressed by the court.

The motherwill be able to call all the evidence and make all of the arguments the moving party could without him being a party. She will be able tocross-examine Dr. Stroker if called as a witness. [27] It is not a sufficient reason to add the moving party as a party in circumstances where the purpose of being added is toprotect his reputation and not claim any substantive relief. It would divert the focus of the trial to something other than a determinationof the best interests of the child. [28] As was stated in Frontenac Children's Aid Society v. E.K., (ON SC), [2000] O.J.

No. 3854, at para.11: [11] To grant the [moving party] party status so that he may 'clear his name' is not the proper focus for this matter and wouldundoubtedly delay and prolong the matter unduly. That is clearly not in the best interests of the child.... [29] The moving party also argues that if a finding is made in this case that he sexually abused the child he will be precludedfrom denying that it happened in any potential case brought by Q.’s mother. He argues that the finding once made may give rise to issueestoppel.

Counsel for the moving party and grandmother did not develop this argument any further. [30] Issue estoppel is a complex area of law. It is not clear or certain that issue estoppel would apply as submitted by counselfor the moving party. A leading case on the law of issue estoppel is Angle v. Minister of National Revenue, (SCC),[1975] 2 S.C.R. 248. The majority of the court (3:2, per Justice R.G.

Brian Dickson) quoted the following rule from English authorities: “. . . whether the determination on which it is sought to found the estoppel is "so fundamental" to the substantive decision that the lattercannot stand without the former. Nothing less than this will do.” [31] The issue of whether the moving party acted inappropriately with the child will be one of a number of issues to be dealtwith in determining the custody dispute between the grandmother and the mother.

At this point in the litigation it is not clear that the testas set out above in the Angle case would be met in a case which may be brought by Q.’s mother. [32] It is not necessary that the moving party be made a party so as to advance his position.

His reasons for wanting to beadded as a party, that is, protecting his reputation and anticipating an issue estoppel argument can be advanced through the mother’scase. [33] The need for this case to remain focused on the best interests of the child must take precedence over the moving party’sdesire to be added as a party so as to clear his name or address a potential issue estoppel argument in another case. [34] For these reasons, the moving party's motion is dismissed. [35] If the applicant seeks costs of this motion brief written submissions are to be filed within seven days.

The moving partyshall respond five days thereafter. Released: April 18, 2013 Barry M. Tobin Justice