



COURT OF APPEAL FOR ONTARIO

CITATION: Foster v. West, 2021 ONCA 263

DATE: 20210423

DOCKET: M52387 (C68225)

Fairburn A.C.J.O. (Motion Judge)

BETWEEN

Rebecca Mae (Swirsky) Foster

Applicant (Appellant)

and

James John West

Respondent (Respondent)



Ken Nathens and Denniel Duong, for the appellant

Mackenzie Dean and Kirsten Hughes, for
the respondent

Jane Stewart and Mary Birdsell, for the
proposed intervener Justice for Children and Youth

Heard: April 22, 2021 by video conference



REASONS FOR DECISION

[1]

This is a motion for leave to intervene as a
friend of the court, pursuant to r. 13.02 of the
Rules of Civil Procedure
,
R.R.O. 1990, Reg. 194, in an appeal from an order of McLaren J., dated February
26, 2020, resolving a long-running, high conflict custody and access matter
involving two children of a former marriage. The two children are now 11 and 15
years of age.

[2]

The children were not represented by the Office
of the Childrens Lawyer at trial. Even so, the appellant mother presented
evidence from various professionals purporting to express the views and
preferences of the children. In contrast, the respondent father presented
evidence of various professionals who focussed upon the impact of conflict and
alienation on the children.

[3]

The trial judge found that the childrens views
and preferences [were] not helpful in arriving at the decision. The trial
judge did not put any weight on the views and preferences because she
considered them to be not reliable. Ultimately, the trial judge ordered equal
time sharing between the parties and custody (decision-making responsibility
under the recent March 1, 2021 amendments to the
Divorce Act
, R.S.C.
1985, c. 3 (2nd Supp.), s. 2(1)) to the respondent.

[4]

Justice for Children and Youth (JFCY) seeks
leave to intervene as a friend of the court in the appeal that is currently
listed to be heard on May 7, 2021.

[5]

JFCY is a specialty legal aid clinic that has
been in existence for almost 40 years. Its mandate includes the promotion and
protection of the rights of children. JFCY has significant expertise providing
direct legal representation to vulnerable youth, including in the area of
family law. JFCY was also involved in assisting with submissions made in
relation to the recent amendments to the
Divorce Act
, including those
that involve the determination of the best interests of the child: see
Divorce
Act
, s. 16. This court and others have benefited from JFCYs expertise as
an intervener in the past.

[6]

If granted leave to intervene, JFCY commits to
refrain from taking a position on the outcome of the appeal, instead focussing
its arguments upon the rights and interests of children at large. In broad
strokes, JFCY proposes to address: (1) the recent amendments to the
Divorce
Act
and how those amendments affirm and clarify existing components of
the best interests of the child analysis; (2) the need to ensure that children
have an opportunity to have their views and preferences heard by the court, which
includes children having an independent voice in family law proceedings,
appropriate to their age, stage of development, and maturity; (3) the fact
that expressions of alignment and allegations of alienation are an insufficient
basis upon which to dispense with childrens rights to be heard and to have
their own preferences and views expressed and meaningfully considered; and (4)
the need to keep the best interests of the child at the centre of all
decision-making regarding children, not just decisions related to parenting
time and contact. As it relates to the first argument, JFCY highlights that
this is the first time that this court will be called upon to interpret the
amendments to the
Divorce Act
.

[7]

While the appellant consents to the intervention,
the respondent is opposed to JFCYs motion to intervene.

[8]

The appellant filed no materials on this motion
and made limited oral submissions in favour of intervention, noting that JFCY
has an expertise that it can bring to the appeal that the appellant is unable
to advance. While the appellant argues that the interpretation of the new
provisions within the
Divorce Act
will be generally important on
appeal, in the sense that they inform how the trial judge should have
approached the consideration of the childrens best interests, the appellant
acknowledges that the amendments were not operative at the time of the trial
judges decision and, therefore, the trial judge did not err in failing to apply
the amendments.

[9]

The respondent argues that JFCY should be denied
intervener status for a number of reasons, including that: (1) this is an
entirely private dispute that should require a more onerous and stringent
standard before permitting an intervention; (2) the arguments of the proposed intervener
are not unique and there would be no need for the input of the proposed intervener,
as JFCY will be unable to make a useful contribution in this fact-specific
appeal; and (3) the lateness of this motion to intervene, being brought so
close to the hearing date, will prejudice the respondent, in the sense that it
will not give the respondent sufficient time to respond.

[10]

The test for intervention is well-established
and needs no amplification. As Dubin C.J.O. held in
Peel (Regional
Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd.
(1990),
74 O.R. (2d) 164 (C.A.), at p. 167:

Although much
has been written as to the proper matters to be considered in determining
whether an application for intervention should be granted, in the end, in my
opinion, the matters to be considered are the nature of the case, the issues
which arise and the likelihood of the applicant being able to make a useful
contribution to the resolution of the appeal without causing injustice to the
immediate parties.

[11]

I start with the proposition that this is a
private dispute. Where intervention is sought in a private dispute of this
nature, as opposed to one involving the state, the standard to be met by the
proposed intervener is more onerous or more stringently applied:
Jones v.
Tsige
(2011), 106 O.R. (3d) 721 (C.A.), at para. 23.

[12]

Looking at the matter through that lens, I note the
appellant acknowledged in oral submissions that this court will not be asked to
apply the amendments to the
Divorce Act

in this case, as the
trial judge did not err in failing to apply the amendments. Rather, the appellant
argues that the interpretation of the
Divorce Act
as it existed at the
time that the trial judge gave her decision should be informed by the amendments
regarding the best interests of the child. Therefore, in my view, this appeal
does not bring the interpretation and application of the amendments of the
Divorce
Act

as squarely into focus as the proposed intervener suggests.

[13]

Further, I note that the appellant is
represented by senior counsel and, to the extent that the amendments to the
Divorce
Act
might

shed some light on the trial judges approach to the best
interests of the children in this case, I have no doubt that the appellant can
articulate that position without the assistance of an intervener.

[14]

As for the balance of the issues that JFCY
wishes to raise, none of them are novel, in the sense that this court will be
called upon to weigh in on something of first impression. While I have no doubt
that JFCY could make a useful contribution on these issues, this would be the
case on many similar appeals heard by this court, including those arising from
public disputes.

[15]

Regardless, what really tips the balance against
the intervention in this case is the timing of the application and the
prejudice that will arise to the respondent if intervener status to JFCY is
granted. The order appealed from is dated February 26, 2020:
Swirsky v.
West
, 2020 ONSC 1213. The appellants notice of appeal was filed in this
court on March 25, 2020. JFCY first put the respondent on notice of their
intention to seek leave to intervene on March 26, 2021. The earliest motion
date available to hear this matter was April 22, 2021. At the same time that
the matter was set down for the April 22, 2021 hearing, the court communicated
with the proposed intervener and parties about a filing schedule, including
that the proposed intervener file their materials no later than April 12,
2021.

[16]

At the hearing of the motion yesterday, April
22, 2021, inquiries were made as to whether the proposed intervener, if granted
intervener status, could file their factum by today, April 23, 2021, two weeks
before the hearing of the appeal. That was not possible. The earliest date
possible was said to be April 28, 2021. I note that the court has since
received a letter that the proposed intervener could file a factum one day
earlier, that is by April 27, 2021. Assuming this earlier filing date were to
be granted, that would still only leave seven court days before the hearing of
the appeal.

[17]

While the appellant takes no issue with the
proposed filing date, the respondent argues that they will be prejudiced by
this late filing. Counsel for the respondent have obligations over the week of
April 26, 2021, which I accept to be the case, that would prevent them from
considering the new factum until the week of May 3, 2021. This would be the
same week of the scheduled appeal. The respondent would need a proper
opportunity to reply to JFCYs factum. Even the appellant said that they may
wish to reply. In any event, for the respondent, working toward a reply could
not commence until the Monday of the week of the hearing of the Friday appeal. Furthermore,
in a letter sent to the court following oral submissions, counsel for the
respondent reiterated their inability to respond to JFCYs factum if it were to
be filed on April 27, 2021.

[18]

In my view, the respondent has a very strong
position when it comes to prejudice. This is not to mention that an
intervention of this nature is meant to assist the court, yet that assistance
can be significantly diminished when the materials are being filed at the last
minute.

[19]

Although the proposed intervener was under no
obligation to do so, it is often the case that when a motion to intervene is
brought, and especially when it is brought on such short notice, a draft
proposed factum is provided with that application. While the proposed
intervener provided a very high-level overview of their main arguments,
bringing a draft proposed factum would have permitted the parties to know the
proposed interveners precise position and would have allowed for an immediate
filing should the motion be granted. The date of the hearing of the appeal has
been known for some time, certainly prior to JFCYs first notice to counsel of
their wish to seek intervener status.

[20]

None of these comments should be taken as
criticisms of JFCY or as a failure to appreciate the very important work done
by the organization. I do not question JFCYs expertise, which has been of
assistance to this court in the past. Even so, when I balance the nature of
this appeal against the nature of the contribution that could be made to the
issues in dispute, and the nature of the prejudice that could arise from
allowing perfection of such a late intervention, I conclude that the motion
must be dismissed.

[21]

JFCY is a publicly funded, public interest
organization. This was a brief motion involving the application of well-known
principles of law regarding an intervention pursuant to r. 13.02 of the
Rules
of Civil Procedure
. The motion was well motivated. Therefore, costs will
not be awarded to the respondent.



Fairburn A.C.J.O.


