



COURT OF APPEAL FOR ONTARIO

CITATION: R.G. v. K.G., 2017 ONCA 108

DATE: 20170209

DOCKET: C62369 and C62604 (M47156)

Gillese, Benotto and Roberts JJ.A.

BETWEEN

R.G.

Applicant

(Appellant)

and

K.G.

Respondent

(Respondent in Appeal)

and

O.G.

Applicant

(Respondent in Appeal)

AND IN THE MATTER OF

O.G.

Applicant

(Respondent in Appeal)

Gary Joseph and Ryan Kniznik, for the appellant

Christina Doris, for the respondent, K.G.

Jesse Mark and Emily Chan, for the respondent, O.G.

Heard: November 22, 2016

On appeal from the order of Justice M.R. Gibson of the Superior
    Court of Justice, dated July 18, 2016 and on appeal from the from the order of
    Justice F.P. Kiteley of the Superior Court of Justice, dated August 22, 2016.

Benotto J.A.:

[1]

This appeal concerns an application by a minor for a declaration that
    she has withdrawn from parental control.

[2]

The father of a now 17-year-old girl appeals a declaration that she has
    withdrawn from parental control. If his appeal is successful, he also appeals
    an order which held that, in light of the declaration, the issue of her custody
    is moot.

[3]

The parties are diametrically opposed with respect to the application
    process and the factors for the court to consider. The father submits that the
    parents must be parties to an application for a declaration, with full rights
    to object, file evidence and cross-examine. He submits that the application
    judges failure to add him as a party is a basis to overturn the declaration. The
    respondents (the child and her mother) submit that the parents are not required
    to be parties because the child has an absolute right to the declaration and
    the only function of the court on an application for a declaration is to verify
    that the child has reached the age of 16 in accordance with s. 65 of the
Childrens
    Law Reform Act
, R.S.O. 1990, c. C.12 (
CLRA
).

[4]

I would accept neither position. I have concluded, pursuant to basic
    principles of declaratory relief, coupled with the provisions of the
CLRA
,

that the parents must be parties to the application. However, the court
    has broad discretion to direct the extent of their participation. Further, the
    factors to be considered by the court go beyond the age of the child to include
    the reasons for, and the utility, of the declaration.

[5]

Although the application judge concluded that the father did not need to
    be named as a party, the process she followed achieved the same result. I agree
    with her conclusion  and would dismiss the appeal with respect to the
    declaration.

[6]

With respect to the ongoing custody application, I agree with the
    motions judge that the matter is rendered moot by the declaration and would
    dismiss this appeal as well.

BACKGROUND

[7]

The respondent O.G.
[1]
was born in 1999. Her parents separated when she was 18 months old. Their
    initial separation agreement provided for joint custody.  Under a 2006
    amendment, they agreed to live within a certain radius of Oakville, Ontario and
    not to move their daughters residence until she was 18 years old.

[8]

In 2013, the mother, by then remarried, moved to Fort Lauderdale,
    Florida. O.G. enjoyed frequent and extended visits with her in Florida. All was
    well until Mothers Day, 2014. O.G. was planning to visit her mother for the
    weekend. The day before she was to leave, her father drove her to school. During
    the drive, they discussed her trip. Later that morning, while she was in class,
    her father sent her a text saying the weekend was cancelled. Some months later,
    he told O.G. that her visit in late summer would be the last one for nearly a
    year. Six upcoming trips were cancelled. O.G. was devastated.

[9]

O.G. went to visit her mother as planned in the summer. She decided she
    wanted to stay. The father flew to Florida to convince her to return. She
    explained to him that she wanted to stay with her mother. The father returned
    to Ontario, claimed that the mother had kidnapped O.G. and, on September 3,
    2014, obtained an order for custody authorizing police enforcement. The father returned
    to Florida with the order for enforcement. O.G.s affidavit described her
    experience:

Eventually he came back to our house in Florida with the
    police. The police escorted me out of the house, put me into a taxi, and took
    me to the airport. I tried to hide in the womens washroom at the airport so
    that my dad couldnt take me onto the plane, but he threatened to use the
    police again. Out of fear, I got on the plane. Up until this point in my life,
    I had never felt so devastated and betrayed.

[10]

Back in Toronto, the relationship between O.G. and her father
    deteriorated.  By then the mother had responded to the outstanding custody
    action. Early in 2015, the parents attended mediation and settled the action on
    the basis that the father would have custody until their daughters 18th
    birthday, and the mother would have access. The agreement was incorporated into
    a consent order of Miller J. dated March 4, 2015 (the Miller Order).

[11]

The relationship between O.G. and her father was made worse when, for
    reasons that she did not understand, he insisted on changing her school. She
    was about to enter grade 11 and did not want to leave her school, teachers or
    friends. She was given no choice. She determined to increase her course load,
    do well, and apply to university a year early. Always a top student, she
    completed her required courses and obtained a scholarship to the University of
    Miami. Her father was furious. He insisted that she return to grade 12. Matters
    between father and daughter reached a pivotal point on April 13, 2016.

[12]

The father wanted proof that O.G. had confirmed her
    attendance at high school for the following year. He had repeatedly demanded
    that his daughter provide this proof. On April 13, 2016, he yelled at O.G. that
    if she did not provide this documentation she would fucking suffer, regret
    [her] choices and be fucking miserable. At this point, she decided to leave
    and withdraw from parental control.

[13]

O.G. left her fathers home that night, on April 13, 2016,
    and stayed with a family friend. The father sent the police to get her. She
    told the officers that she had withdrawn from parental control and the police respected
    her wishes. She told her school principal that she had withdrawn from parental
    control and the principal respected her wishes.

[14]

O.G. proceeded with her plans to attend university. Her
    father, however, began court proceedings in Florida seeking to obtain an order
    requiring the University of Miami to disclose the contents of his daughters
    application file. This prompted the university to request proof that O.G. was
    an independent minor.  As a result, O.G. applied for a declaration that she had
    withdrawn from parental control.

[15]

O.G.s application for a declaration was heard by Kiteley J.
    Meanwhile, the father brought a motion seeking a declaration that the mother
    was in breach of the Miller Order. This motion was heard by Gibson J. The
    orders of Kiteley J. and of Gibson J. are the subject of this appeal. I now
    turn to discuss the context of these orders.

First attendance before Kiteley J.

[16]

On April 28, 2016  two weeks after leaving her fathers home - O.G. 
    appeared before Kiteley J. requesting a declaration under s. 65 of the
CLRA
that she had withdrawn from parental control. She was represented by Jesse
    Mark, counsel for Justice for Children and Youth. Kiteley J. raised several
    concerns with Mr. Mark and invited him to provide a supplementary affidavit. He
    did so.

[17]

O.G. swore an affidavit outlining her academic achievements, her high
    school grades and her desire to attend the University of Miami. She indicated
    that her father consistently told her he will do everything he can to stop
    her attendance at the university. She explained the necessity for the
    declaration:

I have been further advised by the University of Miami that as
    a minor living in the custody of my father, my father is able to demand that
    the University of Miami withdraw my application and its corresponding
    acceptance and scholarship.

[18]

Kiteley J. was satisfied that O.G. had withdrawn from parental control
    and made the following endorsement:

[T]he evidence indicates that [O.G.] is a remarkable young
    woman. I have no hesitation in making the order. There are no respondents in
    this application because counsel takes the position that the parents are not
    entitled to notice either of the Application or of the order. I accept his
    submissions.

[19]

The formal order (the Declaration) provided as follows:

This Court Declares that
    pursuant to s. 65 of the
Childrens Law Reform Act
:

1.

[O.G., date of
    birth] has withdrawn from the parental control of her father [the appellant],
    and has withdrawn from the parental control of her mother [the respondent].

2.

O.G. is an
    independent minor with all of the statutory and common law rights and
    privileges of a minor who has withdrawn from parental control.

Fathers attendance before Fitzpatrick J.

[20]

The following day, on April 29, 2016, the father attended on an
ex
    parte
basis before Fitzpatrick J. Although the father had been represented
    in the multiple court proceedings to that point in time, he represented himself
    before Fitzpatrick J.  He sought an extension of the police enforcement clause 
    of the Miller Order.  Nothing in the record indicates that Fitzpatrick J. was
    told about the Declaration made the day before.
[2]
Fitzpatrick J. granted the order. Later that same day, the police went to where
    O.G. was residing. On being informed of the Declaration, the police took no
    action.

Fathers motion before Gibson J.

[21]

The matter did not end there. The father moved for a declaration that
    the mother was in breach of the Miller Order. The mother brought a cross-motion
    to set aside the Miller Order. O.G. sought, and was granted, standing on the
    motion and cross-motion. She also sought to have the Miller Order set aside in
    light of her withdrawal from parental control.

[22]

The motions were heard by Gibson J. on May 12, 2016.  On June 2, 2016,
    he released his reasons, stating at para. 17:

I agree with [O.G.s] submission that her withdrawal from
    parental control makes the terms of the [Miller Order] now unenforceable.

[23]

Gibson J. set aside the Miller Order and the order of Fitzpatrick J. He
    also dismissed the fathers request for a declaration that the mother had
    breached the terms of the Miller Order. Even though the terms of the Declaration
    rendered the fathers request for custody academic, the father submitted that
    there should be a court record affirming his position about what happened and
    what the mother did.  Gibson J. disagreed, saying at para. 21:

[The fathers] persistence with the motion amounted to a
    self-absorbed attempt to have a judicial imprimatur validating his particular
    perspective. Not only was this unnecessary given what has now transpired, it
    was ill-considered. [The fathers] submissions are replete with exaggerated and
    pejorative language [] for example, his assertion, unsubstantiated by any
    expert or other evidence, that [O.G.] suffers from Stockholm Syndrome

[24]

The reasons of Gibson J. confirm that O.G. had voted with her feet and
    was capable of determining her own future. He ordered that no person shall have
    custody of O.G.

Second attendance before Kiteley J.

[25]

On July 28, 2016, three months after the Declaration, the father
    launched a motion before Kiteley J. seeking to set aside the Declaration and
    restore his sole custody of O.G. By then, O.G. was 17 years old. The hearing
    was held on Thursday, August 18, 2016. O.G. had moved into residence at the
    University of Miami and was scheduled to begin classes the following Monday,
    August 22, 2016.

[26]

The father submitted that the Declaration should be set aside because he
    was entitled to be a party to, or at least to have been given notice of, the
    application which led to the Declaration. He relied on s. 62(3) of the
CLRA
which provides that on an application under Part III in respect of a child,
    the parties shall include the parents. He also requested that Kiteley J. grant
    him custody so that O.G. would be returned to high school in Oakville.

[27]

O.G. submitted that she had an absolute right to withdraw from parental
    control and that her father was not entitled to be a party or to receive notice
    of her application.   The only consideration for the court, she submitted, was
    proof that she had attained the age of 16 in accordance with s. 65 of the
CLRA
.

[28]

Kiteley J. concluded that the motion before her was not a
request
by O.G. to withdraw from parental control but rather a declaration that her
    right to do so had been exercised. Since the hearing was not for custody,
    access or guardianship  the title of Part III of the
CLRA
- s. 62(3)
    did not apply and the father was not entitled to be named as a party or to
    receive notice.

[29]

Despite this conclusion, the application judge went on to review the
    extensive record containing more than a dozen affidavits in order to evaluate
    the best interests of O.G.  She concluded at paras. 35 and 36:

First, my impression of [O.G.] at the time of the hearing on
    April 28, 2016 is reinforced. She is articulate, thoughtful, and intelligent.
    Second, she has sound reasons for wanting to accelerate her university entrance
    and to attend a university in Florida. Third, at age 17, her wishes and
    preferences must be respected.



Alternatively, if I had found that the father should have been
    named as a respondent or was entitled to notice, I would dismiss the claim for
    custody.  [T]he issue of custody  has now been canvassed extensively in court
    twice: before Gibson J. and before me. The father has had the opportunity to be
    heard twice and no further opportunities are required in order to achieve
    procedural fairness.

[30]

Kiteley J. dismissed the motion to set aside the Declaration and
    dismissed the fathers request for custody.

ISSUES

[31]

The father appeals the orders of Kiteley J. and Gibson J.  He also seeks
    to admit fresh evidence with respect to both appeals. I will address the
    following issues:

1.

Is the fresh
    evidence admissible?

2.

Are the parents required to be parties to the application for a
    declaration that a child has withdrawn from parental control?

3.

What factors are considered on an application for a declaration that a
    child has withdrawn from parental control?

ANALYSIS

Issue 1:  Is the fresh
    evidence admissible?

[32]

In order to appreciate the significance of the fresh evidence
    application, a bit of background is required.

[33]

As referred to earlier, the father raised the issue of Stockholm syndrome
    before Gibson J. The motion judge characterized this as a belief by the father
    that the mother continues to illegally influence [O.G.] in disastrous ways
    such that the child is continually acceding to [the mothers] perverse will. The
    motion judge commented that these allegations were unsubstantiated by any
    expert or other evidence.

[34]

The father raised the issue again before Kiteley J. on August 18, 2016.
    He asserted that O.G. is the victim of a trauma bond imposed by the mother.
    He submitted a letter from a physician in Michigan which describes trauma
    bond and situations of Stockholm syndrome. The application judge attached no
    evidentiary value to the letter or the fathers reliance on it.

[35]

This letter, now in the form of an affidavit from Dr. Frank M. Ochberg,
    a Michigan psychiatrist, sworn November 7, 2016, is the proposed fresh
    evidence. The psychiatrist indicates that he could not previously provide sworn
    testimony due to medical issues and reiterates the contents of his previous
    letter. He has never met O.G.

[36]

The father seeks to have this evidence admitted to establish that O.G.
    is not acting of her own free will but rather has been brainwashed by her
    mother, who is essentially her captor.

[37]

The principles governing the admissibility of fresh evidence on appeal
    are outlined in
R. v. Palmer
, [1980] 1 S.C.R. 759 at p. 775.
    The
Palmer
test requires the applicant to satisfy four
    criteria: (i) the evidence could not have been adduced at trial; (ii) the evidence
    must be relevant in that it bears on a decisive or potentially decisive issue;
    (iii) the evidence must be reasonably capable of belief; and (iv) the evidence
    must be such that, if believed, it could reasonably, when taken with the other
    evidence adduced at trial, be expected to have affected the result.

[38]

These criteria are more flexible where an appeal involves the best
    interests of a child; it is important to have the most current information
    possible when determining the childs best interests [g]iven the inevitable
    fluidity in a childs development:
Childrens Aid Society of Owen
    Sound v. R.D.
(2003), 44 R.F.L. (5th) 43 (Ont. C.A.), at para. 21,
    per Abella J.A.

[39]

The proposed evidence does not meet the test set out in
Palmer
.
    It is not fresh but the reiteration of a theory already raised and rejected
    twice.   In the face of the extensive record regarding O.G., the affidavit from
    a psychiatrist who has never met her could not reasonably have affected the
    result.

[40]

In my view, the fathers continued pursuit of this issue confirms O.G.s
    position that he is obsessed with controlling her and that this has blinded him
    to the reality that it is
he
, not her mother, who is the reason that
    she withdrew from parental control. It also reinforces the strength of the
    findings in the courts below.

[41]

I would not admit the fresh evidence.

[42]

I turn to consider the legal basis for the withdrawal from parental
    control.

A childs right to withdraw from parental control

[43]

It has always been a rule of common law that a parents right to custody
    will not be enforced against a childs will once the child has reached the age
    of discretion:
Rex v. Greenhill
(1836), 4 A. & E. 624 (K.B.);
Reg.
    v. Howes
(1860), 3 E. & E. 332 (Q.B.). Historically, this meant that
    the child had the right to withdraw from parental control and the court would
    not force the child to return to a custodial parent, but would allow the child
    to live where he or she chose. The age at which a child has the right to
    withdraw from parental control is codified in s. 65 of the
CLRA
:

Where child is sixteen or more
    years old

Nothing in this Part abrogates
    the right of a child of sixteen or more years of age to withdraw from parental
    control.

[44]

Once a child declares an intention to withdraw from parental control,
    her independence may  as it was here  be recognized by the police and the
    schools. There is no formal court process for a child to withdraw. This was
    recognized by the application judge at para. 13 when she said of O.G:

She did not require a court order or a declaration permitting
    or enabling her to withdraw from parental control. She did not require a court
    order to protect her privacy at her school in Oakville because, after informing
    the principal in writing by letter dated April 22, 2016, the principal respected
    her instructions and did not provide information to her father. She did not
    require a court order to prevent the police from apprehending her and taking
    her back to her fathers home because she informed the police that she had
    withdrawn from her fathers control and the police respected her right to do
    so.

[45]

Unlike jurisdictions such as Quebec which have procedures for
    emancipation, Ontario law does not have a formal process for withdrawing from
    parental control. The child simply has to take control of the incidents of
    custody which include decision making regarding residence and education. No
    court process is required.

[46]

However, there is a distinction between the fact of withdrawing from
    parental control and an application to court for a declaration that a child has
    withdrawn from parental control. The former is a right that is exercised
    unilaterally.  The latter engages the courts jurisdiction with respect to
    declaratory relief.

Nature of declaratory relief

[47]

A declaratory judgment is a formal statement by a court pronouncing
    upon the existence or non-existence of a legal state of affairs: Zamir &
    Woolf,
The Declaratory Judgment
, 3rd ed. (London: Sweet & Maxwell,
    2002) at para. 1.02. Courts have jurisdiction to grant declaratory relief under
    their inherent jurisdiction and pursuant to s. 97 of the
Courts of Justice
Act,
    R.S.O. 1990, c. C.43. The nature of the relief was articulated in detail by the
    Supreme Court of Canada in
R. v. Solosky
, [1980] 1 S.C.R. 821. There,
    Dickson J. said at pp. 830-832:

Declaratory relief is a remedy neither constrained by form nor
    bounded by substantive content, which avails persons sharing a legal
    relationship, in respect of which a real issue concerning the relative
    interests of each has been raised and falls to be determined.

The principles which guide the court in exercising jurisdiction
    to grant declarations have been stated time and again. In the early case of
Russian
    Commercial and Industrial Bank v. British Bank for Foreign

Trade Ltd
,

[[1921], 2 A.C. 438]

in which parties to a contract sought
    assistance in construing it, the Court affirmed that declarations can be
    granted where real, rather than fictitious or academic, issues are raised. Lord
    Dunedin set out this test (at p. 448):

The question must be a real and not a
    theoretical question, the person raising it must have a real interest to raise
    it; he must be able to secure a proper contradictor, that is to say, someone
    presently existing who has a true interest to oppose the declaration sought.

In
Pyx Granite Co. Ltd. v. Ministry of Housing and Local
    Government
, [[1958] 1 Q.B. 554], (revd [1960] A.C. 260, on other
    grounds), Lord Denning described the declaration in these general terms (p.
    571):

.. if a substantial question exists
    which one person has a real interest to raise, and the other to oppose, then
    the court has a discretion to resolve it by a declaration, which it will
    exercise if there is good reason for so doing.



As Hudson suggests in his article, "Declaratory Judgments
    in Theoretical Cases: The Reality of the Dispute" (1977), 3 Dal.L.J. 706:

The declaratory action is
    discretionary and the two factors which will influence the court in the
    exercise of its discretion are the utility of the remedy, if granted, and
    whether, if it is granted, it will settle the questions at issue between the
    parties.

[48]

These principles inform both issues in this appeal with respect to the
    declaration: who the parties should be and what factors the court should
    consider.

Issue 2:  Are the parents
    required to be parties to the application for a declaration that a child has
    withdrawn from parental control?

[49]

O.G. submits that the parents are not to be parties to the application. She
    submits that she has an absolute right to withdraw from parental control. She
    does not need their consent to do so. Therefore, she submits there is no
    position the parents could take which would affect the result. This submission
    ignores the distinction between withdrawing from parental control and seeking a
    declaration from the court.

[50]

The father relies on s. 62(3) of the
CLRA
to support his
    position that the parents must be parties to the application. As it stood at
    the time, this section provided:

Parties

(3)
The parties to an application
    under this Part in respect of a child shall include,

(a) the mother and the father of the child[.]
[3]


[51]

Part III of the
CLRA
is entitled Custody, Access and
    Guardianship.  Sections 62 and 65 are located in Part III of the
CLRA
under a subheading named Procedure. The application judge determined that,
    since the application for a declaration was not for custody, access or
    guardianship, s. 62(3) did not apply.  With respect, I come to a different
    conclusion for two reasons.

[52]

First, as explained in
Solosky
,

declaratory relief
    involves persons sharing a legal relationship in respect of which the
    relative interests of each are to be determined. Here, the relationship
    shared is that of parent and child. The relevant interests are the independence
    of the child and the custodial interests of the parent. The parent may have an
    interest to oppose the declaration. As noted in
Solosky,
(relying on
Russian
    Commercial
,) the person requesting the relief must secure a proper
    contradictor, that is, someone [] who has a true interest to oppose the
    declaration sought.

[53]

Second, s. 62(3) of the
CLRA
provides that the parents must be
    before the court in an application in respect of a child. Although the heading
    under Part III states Custody, Access and Guardianship, the provisions of s.
    62(3) state that, in an application under Part III in respect of a child, the
    parents are to be parties. It is not limited to custody, access and
    guardianship issues.

[54]

Although I have concluded that the parents are to be parties to the
    application for a declaration, the court retains discretion to direct their
    involvement and participation in the application. The father suggests that he
    should have all the usual rights including introducing and cross-examining on
    affidavits. This, however, is not automatic. The judge hearing the application
    will determine, based on the unique facts before her, what degree of
    participation is appropriate. Courts maintain an inherent jurisdiction to
    control their process:
R.(C.) v. Childrens Aid Society of Hamilton
(2004), 70 O.R. (3d) 618 (S.C.);
Re Stelco Inc.
(2005), 75 O.R. (3d) 5
    (C.A.), at para. 35.

[55]

Also, r. 1(7.2) of the
Family Law Rules
, O. Reg. 114/99 gives
    the court the authority to make orders for directions and conditions respecting
    procedural matters as the court considers just. Each case must turn on its own
    facts and is subject to the discretion of the application judge.

[56]

Here, the application judge did not accept the fathers submission that
    he should be a party. However, to the extent that this was an error, it was
    cured by her conduct of the hearing. The father was permitted to file material
    and make submissions. The application judge fully and thoroughly canvassed all of
    the evidence before her and made findings based on that evidence.

Issue
    3:  What factors are considered on an application for a declaration that a
    child has withdrawn from parental control?

[57]

O.G. submits that, because she has the unfettered right to withdraw from
    parental control, she has an unfettered right to the declaratory relief that
    she sought. She submits that the court should consider nothing but that she is
    over the age of 16. She says that there is no consideration of the mental
    capacity or circumstances of the child. There are no-pre-conditions,
    qualifiers, or exceptions to this right.  Indeed, the
only
consideration is the age of the
    child.

[58]

I do not agree with this broad proposition. As already articulated, when
    declaratory relief is sought, the court should inquire into the reasons why the
    declaration is sought, the utility of the remedy and whether, if it is granted,
    it will resolve the issue between the parties. The reasons of the application
    judge are clear that the Declaration was necessary to allow O.G. to attend
    university and resolve the dispute with her father. It is also significant that
    the application judge considered the extensive record and grounded her
    conclusions based on the best interests of O.G.

[59]

This court recently addressed a request for declaratory relief by a
    child who wished to withdraw from parental control. In
N.L. v. R.R.M
,
    2016 ONCA 915, the judge of first instance made no order as to custody. This
    court dismissed the childs request for declaratory relief concluding that
    there was no practical utility to such an order.

[60]

Weiler J.A. said this at paras. 49-51:

[The child] agrees with the motion judges order insofar as it
    does not grant any person custody of or access to him. Nonetheless, he seeks,
    A declaration that [he] has withdrawn from parental control and has all of the
    statutory and common law rights of an independent minor.

In support of his submission [the child] relies, in part, on
    the decision of Kiteley J. in [
O.G.
]
, Re
, 2016 ONSC 5292,
    granting similar declaratory relief. That decision is under appeal to this
    court and the reasons are yet to be released.

Insofar as declaratory relief is concerned, I note that the
    jurisprudence is to the effect that the Superior Courts jurisdiction to grant
    declaratory relief is not to be exercised in a vacuum; a court must have a
    reason to exercise its discretion to grant declaratory relief; where
    legislation exists dealing with the subject matter, the court should consider
    whether a legislative gap exists that would give rise to a jurisprudential
    reason for exercising the courts discretion to grant declaratory relief. See,
    for example,
Danso-Coffey v. Ontario
, 2010 ONCA 171, 99 O.R. (3d) 401,
    at paras. 30-32; Donald J. M. Brown, Q.C. & the Honourable John M. Evans,
Judicial
    Review of Administrative Action in Canada
, loose-leaf (2016-Rel. 3),
    (Toronto: Thomson Reuters Canada Ltd., 2013), at p. 1-77. A declaration can
    only be granted if it will have practical utility in settling a live
    controversy between the parties: see
Daniels v. Canada
, 2016 SCC 12,
    395 D.L.R. (4th) 381, at para. 11,
Khadr v. Canada (Prime Minister)
, 2010
    SCC 3, [2010] 1 S.C.R. 44, at para. 46; Brown and Evans, at p. 1-73. None of
    this jurisprudence was the subject of submissions before us.

[61]

Unlike the child in
N.L.,
O.G. was the subject of a custody
    order and was embroiled in a live controversy about her attendance at
    university. There was a practical utility achieved by the Declaration.

[62]

To summarize, when asked to make the Declaration, the application judge fully
    considered O.G.s best interests and satisfied herself that the Declaration was
    necessary and appropriate in all the circumstances. There was no procedural
    unfairness and her findings were supported by the evidence. The declaratory
    relief was not exercised in a vacuum. There was a clear reason for it.

[63]

I see no reason for appellate intervention with respect to the Declaration.

Order of Gibson J.

[64]

The fathers appeal of the order of Gibson J. is premised on overturning
    the order of Kiteley J. Since I would uphold her order, it is not necessary to
    consider the submissions in relation to Gibson J.s order.

[65]

I do comment, however, that the conclusions of Gibson J. reinforce those
    of Kiteley J. who concluded that O.G.s best interests were indeed served by
    the Declaration confirming that she had withdrawn from parental control.

Initialization

[66]

The parties joined in a request that this court anonymize its reasons. The
    issue was raised before Kiteley J., who did not have proper submissions and
    made no decision. She noted, however, that the identity of the parties was
    already in the public domain. During oral submissions before this court, the
    parties stated their position to be that the Declaration would not be
    anonymized but the reasons of this court would be. We have been advised by
    counsel that the reporting service LexisNexis Quicklaw has been notified, takes
    no position and will abide by any order made by the court. I would therefore
    grant the motion to anonymize the reasons of this court.

CONCLUSION

[67]

This appeal demonstrates the importance of the emerging movement to
    incorporate the voice of the child in all matters concerning minors. The degree
    to which the court will follow the wishes of the child will depend upon the age
    and level of maturity of the child and will be subject to the judges
    discretion as she seeks to determine the childs best interests. When, as here,
    the child is months away from her eighteenth birthday, a continuation of
    litigation involving her indicates more about the parents needs than the
    childs.

DISPOSITION

[68]

I would dismiss the appeal from the orders of Kiteley J. dated
    August 22, 2016 and Gibson J. dated August 22, 2016, with costs payable to the
    respondent O.G. in the amount of $11,000 and the respondent mother in the
    amount of $10,000. These amounts are inclusive of disbursements and HST.

Released: EEG  FEB 9 2017

M.L. Benotto J.A.

I agree. E.E.
    Gillese J.A.

I agree. L.B.
    Roberts J.A.





[1]
I have initialized the name of the young person in response to the request of
    all parties. Brief reasons for doing so appear at the conclusion of these
    reasons.



[2]
It is unclear when the father received actual notice of the declaration by
    Kiteley J. Formal notice appears to have been given on May 2, 2016.



[3]
Note:  as of January 1, 2017, clause (a) refers to the childs parents rather
    than the mother and father of the child: 2016, c. 23, s. 14. Nothing in this
    appeal turns on the amendment.


