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.
Reasons for
Order (paras. 1 to 13)
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______________________________
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.