Alliance for Marriage and Family v. A.A., 2007 SCC 40, [2007] 3 SCR 124

                                                 SUPREME COURT OF CANADA

Between:

Alliance for Marriage and Family

Applicant

and

A.A., B.B., C.C. and D.D.

Respondents

‑ and ‑

Family Service Association of Toronto

and Melissa Drake Rutherford

Interveners

Coram: LeBel J.

______________________________

Alliance for Marriage and Family v. A.A., [2007] 3 S.C.R. 124, 2007 SCC 40

Alliance for Marriage and Family                                                                                     Applicant

v.

A.A., B.B., C.C. and D.D.                                                                                              Respondents

and

Family Service Association of Toronto

and Melissa Drake Rutherford                                                                                      Interveners

Indexed as:  Alliance for Marriage and Family v. A.A.

Neutral citation:  2007 SCC 40.

File No.:  31895.

2007: September 13.

Present:  LeBel J.

motion for an order to add parties

Civil procedure — Addition of parties — Supreme Court of Canada — Intervener in Court of Appeal requesting to be added as a party to bring an application for leave to appeal — Parties in Court of Appeal not wishing to continue litigation — Motion dismissed  — Rules of the Supreme Court of Canada, SOR/2002‑156, r. 18(5).

Cases Cited

Referred to: Canadian Pacific Ltd. v. Montreal Urban Community, [2001] 3 S.C.R. 426, 2001 SCC 74; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27;  Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; Canadian Council of Churches v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 236.

Statutes and Regulations Cited

Children’s Law Reform Act, R.S.O. 1990, c. C.12, s. 4(1).

Rules of the Supreme Court of Canada, SOR/2002-156, Rule 18(5).

MOTION for an order to add a party to bring an application for leave to appeal a judgment of the Ontario Court of Appeal (McMurtry C.J.O. and Labrosse and Rosenberg JJ.A.) (2007), 83 O.R. (3d) 561, 220 O.A.C. 115, 150 C.R.R. (2d) 110, 35 R.F.L. (6th) 1, [2007] O.J. No. 2 (QL), 2007 ONCA 2, reversing a judgment of Aston J. (2003), 225 D.L.R. (4th) 371, 38 R.F.L. (5th) 1, [2003] O.J. No. 1215 (QL).  Motion dismissed.

Robert W. Staley, Ranjan K. Agarwal and Michael A. Menear, for the applicant.

Peter R. Jervis and Jennifer C. Mathers, for the respondent A.A.

Alfred A. Mamo, for the respondent B.B.

Clare E. Burns and Katherine Kavassalis, for the respondent D.D.

Bradley E. Berg, for the intervener the Family Service Association of Toronto.

Martha McCarthy and Joanna L. Radbord, for the intervener Melissa Drake Rutherford.

The following are the reasons delivered by

1                                   LeBel J. — The Alliance for Marriage and Family (the “Alliance”), a coalition of five organizations that support traditional forms of marriage and family, seeks to be added as a party under Rule 18(5) of the Rules of the Supreme Court of Canada, SOR/2002-156.  It intends to ask for leave to appeal a judgment of the Ontario Court of Appeal in which that court held that two lesbian partners could both be considered as mothers of a child born to one of them (A.A. v. B.B. (2007), 83 O.R. (3d) 561, 2007 ONCA 2).  As a result of that judgment, the child, D.D., has two mothers, C.C. (the biological mother) and A.A. (C.C.’s partner), and a father, B.B. (the biological father).

2                                   The proceedings in this Court began with an application for leave to appeal by the Alliance, which was an intervener in the Court of Appeal.  One of the respondents challenged the Alliance’s standing, hence its application under Rule 18(5).

3                                   Before turning to the merits of the application, I will summarize the background of the matter.  A.A. and C.C. are long-time partners.  They decided that one of them would have a child, but agreed that both of them, not just the biological mother, should be the child’s mothers.  The father, B.B., wished to be recognized as the father of the child, who would therefore have three parents.

4                                   After the child was born, A.A. with the consent of C.C. and B.B., applied under s. 4(1) of the Ontario Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”), for a declaration that she was a parent within the meaning of the CLRA.  Despite the consent of the biological father and mother, the Superior Court of Justice dismissed the application ((2003), 225 D.L.R. (4th) 371), holding that it had no power to grant such a declaration, either under the CLRA or under its parens patriae jurisdiction.  The Alliance had sought to intervene in the Superior Court, but its motion for leave to intervene was dismissed in light of the dismissal of A.A.’s application.

5                                   A.A. appealed to the Ontario Court of Appeal, which reversed the Superior Court’s judgment.  The Court of Appeal granted A.A.’s application, but solely under the parens patriae jurisdiction of the courts. The Alliance was granted leave to intervene in the Court of Appeal, where it opposed A.A.’s appeal.  The Attorney General of Ontario took no part in the appeal and declined to take a position in the proceedings.  As a result, the Court of Appeal appointed an amicus curiae, who supported A.A. in respect of the scope of the inherent parens patriae jurisdiction of the court.

6                                   None of the three parents is challenging the Court of Appeal’s judgment.  Neither is the Attorney General of Ontario doing so.  In these circumstances, the Alliance is relying on Rule 18(5) to try to bring the matter before this Court and to avoid a situation in which the Court of Appeal’s judgment would, to use the Alliance’s word, be “unappealable”.

7                                   In my opinion, the Alliance’s application must fail.  Under a proper interpretation of Rule 18(5), the Alliance does not have standing to be added as a party in order to qualify to apply for leave to appeal.

8                                   The question raised by the application under Rule 18(5) is not whether the underlying application for leave to appeal involves issues worthy of consideration by this Court or whether the Court of Appeal’s judgment is well founded.  Neither of these issues is before me and I do not intend to be understood to be expressing any views on these aspects of the litigation.  I will limit my comments to the procedural issue of the interpretation and application of Rule 18(5).

9                                   This Court’s procedure is flexible, but that flexibility has its limits.  What the applicant is attempting to do is to substitute itself for the Attorney General in order to bring important legal questions relating to the development and application of the law before this Court.  As we have seen, neither the Attorney General nor the immediate parties intend, for reasons of their own, to contest the Court of Appeal’s judgment.  The applicant is certainly concerned about the impact of that judgment.  Nevertheless, it was merely an intervener in the Court of Appeal, there to defend its view of the development of family law, but it had no specific interest in the outcome of the litigation.

10                               This Court has never allowed a private applicant under Rule 18(5) to revive litigation in which it had no personal interest.  None of the precedents relied upon by the applicant involved the substitution or addition of a party that did not have a specific personal interest in the outcome of the litigation.

11                               For example, in Canadian Pacific Ltd. v. Montreal Urban Community, [2001] 3 S.C.R. 426, 2001 SCC 74, the applicant presented the opposing position in the courts below, and was granted respondent party status in order to fully inform this Court on the issues raised in an already existing application for leave to appeal, where none of the respondents below wished to debate the merits of that application.  In Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, the applicants were former employees who had a direct interest in the outcome of the litigation discontinued by the Ontario Ministry of Labour.  In Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554, the Canadian Human Rights Commission had been a full party in the proceedings before the Canadian Human Rights Tribunal and the issues engaged the interpretation of the Commission’s enabling statute.

12                               In addition, the applicant does not explain in its application how it meets the test for public interest standing from Canadian Council of Churches v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 236.  It merely states that the judgment will be otherwise “unappealable”.

13                               For these reasons, in the circumstances, I am dismissing the application without costs.

Motion dismissed.

Solicitors for the applicant: Bennett Jones, Toronto; Menear Worrad & Associates, London.

Solicitors for the respondent A.A.: Lerners, Toronto.

Solicitors for the respondent B.B.: Mamo & Associates, London.

Solicitor for the respondent D.D.: Office of the Children’s Lawyer, Toronto.

Solicitors for the intervener the Family Service Association of Toronto: Blake, Cassels & Graydon, Toronto.

Solicitors for the intervener Melissa Drake Rutherford: Martha McCarthy & Co., Toronto.