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Epstein’s This Week in Family Law | Litigation guardian

Minor found not to need litigation guardian in order to sue parent for child support in recent decision.

Epstein’s This Week in Family Law

By: Philip Epstein

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Does a Minor Child Need a Litigation Guardian to Sue a Parent for Support?

M. (C.M.) v. C. (D.G.), 2015 CarswellOnt 2151 (Ont. Div. Ct.): This unanimous court decision overturns a decision by Justice Darla Wilson and determines that a child may bring a support proceeding against a parent without first having to obtain a litigation guardian. Justice Wilson had ordered that this 15-year-old child be represented by a litigation guardian and stayed her proceeding until she had one. Had the Court found that a litigation guardian was required, the child argued that the Children’s Lawyer should be appointed as her litigation guardian. This case has extremely serious and important ramifications for the law of child support in Ontario. This decision has been set aside by the Divisional Court because of a problem that arose subsequent to the judgment (of which more will be said below). The child is the 15 years old daughter of the respondent who is her father. The mother and father entered into an agreement at the child’s birth that the father would pay a relatively small lump sum, but in return, he would have no further contact with the child. When the child was 14 years old, she retained her present lawyer. She initially had her grandfather as a litigation guardian, but he withdrew, likely, when he learned that he could be responsible for costs.

Justice Sachs, writing for the majority, finds that the Family Law Rules represent a deliberate departure from the regime established by the Civil Rules for the participation of children in legal proceedings. Justice Sachs determines that under the family law regime, when children commence their own proceedings, the focus must be on whether there is a need for those children to be represented, not on putting in place an adult to act as the instructing party instead of the child.

The Divisional Court was at pains to make it clear that the submissions before them were substantially different than those before the motion judge. In the Divisional Court case, the Attorney General of Ontario intervened, as did the Children’s Lawyer, and Justice for Children of Youth. The Divisional Court credits the interveners, particularly the Attorney General, who took the Court through the legislative background to the Family Law Rules and provided insight with helping the Court reach its conclusion.

Frankly, I doubt that the Family Law Rules committee thought that they were making a deliberate departure from the regime established by the Civil Rules about litigation guardians. I cannot envision that the Family Law Rules committee even considered the fact that a child, in the face of an agreement between her parents, can sue one of her parents without any risk of costs and with only her own counsel to guide him or her in the process. Nevertheless, the Divisional Court and Justice Sachs, a very experienced family law judge, carefully parsed the Family Law Rules and what they say about a child. Justice Sachs correctly points out that nowhere in the Family Law Rules is there any mention for the need of a litigation guardian, whereas Rule 7.01(1) of the Civil Rules does, in fact, require a litigation guardian.

The motions judge had found that the Family Law Rules did not provide sufficient framework for the conduct of litigation by minors and, therefore, she relied on Family Law Rule 1(7), which allowed her to look to the Civil Rules for guidance.

The Divisional Court looked at the Family Law Rules about a “special party” as defined in Rule 2(1). While they thought that the wording of Rule 2(1) was confusing and difficult, nevertheless, applying the modern rules of statutory interpretation they decided that the rule about special parties did not exclude children who have commenced proceedings on their own behalf. Thus, the Divisional Court found that the child is a special party for whom the Court has discretion to provide representation. Since the child already had a lawyer, there is no need for the Court to exercise its discretion in that regard, but she does not need a litigation guardian.

The Divisional Court, to some degree, anticipated the problems that such a ruling may create. Justice Sachs noted that to the extent that a concern arises, a young person’s lawyer may be driving the litigation in an unreasonable direction, the Family Law Rules provide a remedy under Rule 24(9), that is, that the court can order the lawyer to pay costs.

I accept that this is not the first time that children have appeared without a litigation guardian in both the Provincial Courts and Unified Family Courts. This issue has not been clearly settled before and it is likely not settled by this decision either. However, if this decision is upheld, there is the possibility that a child can sue her father for support, notwithstanding the fact that the father has made a support agreement with the mother. In very simple terms, that means that if the parties settle a child support issue, neither parent is insulated from a minor child’s claim for more support and, to compound the problem, the child can bring that claim without any risk of an adverse cost decision. This strikes me as fundamentally odd and requires a new look by the Rules Committee. If they actually intended this result, they ought to make it much clearer and, if they did not intend this result, they need to amend the rules accordingly. Now the real irony in all of this is that the judgment was set aside on March 16, 2015. It turns out that, by inadvertence, one of the judges had a conflict and no one noticed the conflict until weeks after the judgment. The Divisional Court has decided that the conflict is serious enough that the judgment must be set aside and a new panel struck to re-hear the appeal again. It is difficult to see at this point in time how three new judges will ignore the analysis that has taken place in this case but, at the moment, this decision technically does not exist. The motion has been reargued before a new panel and a decision is expected shortly.

As I said, this has enormous implications for how parties settle child support cases and in what circumstances children will succeed in claims against their parents who made agreements that did not comply with the Guidelines.

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