“This is preliminary issue that must be addressed before delving into the law with respect to grandparent access. As noted, the Respondent mother raised the fact that the court could not order contact for the Applicant grandmother in absence of a 35.1A affidavit.
Section 35.1 of the Family Law Rules (“the Rules”), reads as follows:
35.1 (1) If an application, answer or motion to change a final order contains a claim respecting decision-making responsibility, parenting time or contact with respect to a child, the party making the claim shall serve and file with the document that contains the claim,
(a) an affidavit in Form 35.1 and, if the child or any party to the case has been involved in a child protection case or has received services from a child protection agency, an affidavit in Form 35.1A; and
(b) any other documents required by this rule. O. Reg. 42/21, s. 17.
Under the Rules, parties with child welfare involvement are required to file a Form 35.1A affidavit. The Applicant grandmother appears not to have filed this form, or if she did, it was not included in the continuing record transferred from Barrie. The form is not normally included in the continuing record.
While the Rules mandate filing, they do not explicitly prohibit a judge from granting parenting time or contact due to an inadvertent omission of the form. Courts are encouraged to prioritize the child’s best interests, and procedural errors may be remedied if they do not prejudice the other party or compromise child safety.
My own research did not find any discernible case law directly addressing whether a missing Form 35.1A bars the court from making a contact. It was not provided by the Respondent mother either. Rule 1(7), however, does allow for judicial discretion in procedural matters, which suggests that a court could potentially allow the affidavit to be filed late or make directions to cure the defect.
Although this issue is not about pleadings, an area in which case law is available, it can be analogous. Family law proceedings allow for more flexibility than civil litigation. As affirmed in Frick v. Frick, 2016 ONCA 799, the Rules are designed to reflect the unique nature of family cases, emphasizing active case management, early disclosure, and proportionality in resolving disputes.
In Jamieson v. Jamieson, 2020 ONSC 6935, it was held that courts may grant relief that was not explicitly pleaded if two conditions are met:
(1) It is clear that the relief is warranted; and
(2) No prejudice arises from the failure to plead the request.
In Khamis v. Noormohamed, 2011 ONCA 127, the Court upheld a trial decision allowing an unequal equalization claim, noting that the opposing party had sufficient notice of the issue.
Where the best interests of a child are at stake, courts are especially inclined to overlook deficiencies in pleadings. This approach was supported in Sleiman v. Sleiman, 2002 CanLII 44930 (ON CA) and Olubowale v. Morgan, 2011 ONCJ 353.
In this case, there is no need to cure the deficiency, seeing a trial has been completed. The Applicant grandmother did complete a 35.1 affidavit. She is a self-represented party and while that comes with rights and obligations, it also comes with some accommodations. This is not a case where the Applicant grandmother attempted to hide any involvement with child welfare agencies. While she did not provide a 31.1A Affidavit, she completed and obtained her Report on Records from every child welfare agency in the jurisdictions she has resided in. We are aware that she had involvement with only one child welfare agency. The report was provided, and the investigator was cross-examined at trial. There is no prejudice.
Normally the lack of information in a 35.1 and 35.1A affidavit would speak of risk to the child, but that has been mitigated through the information already provided and made an exhibit at trial. Moreover, this particular issue should have been addressed at the trial management conference. Child welfare involvement was known to the parties from the start of the proceedings. It cannot be used at this stage to prevent a decision on the merits. I find that a decision on contact can proceed in the absence of a 35.1A affidavit, where particulars of the Applicant grandmother’s involvement with child welfare agencies have been provided for consideration on the child’s best interests.”