“J.B. seeks leave to intervene as an added party on the appeal. The mother opposes the motion. A motion of this kind is highly unusual in a custody dispute. Typically, if the child is to be heard, an application would be made for the appointment of the Children’s Lawyer to represent the child. That was not done here, and we can only presume that the reason was tactical.
A motion for leave to intervene as an added party is governed by rule 13.01(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194:
13.01(1) A person who is not a party to a proceeding may move for leave to intervene as an added party if the person claims,
(a) an interest in the subject matter of the proceeding;
(b) that the person may be adversely affected by a judgment in the proceeding; or
(c) that there exists between the person and one or more of the parties to the proceeding a question of law or fact in common with one or more of the questions in issue in the proceeding.
J.B. satisfies all three elements of rule 13.01(1), any one of which would be sufficient. He obviously has an interest in the subject matter of the proceeding: his custody. He may be adversely affected by the judgment of the trial judge or of this court in the sense that he may object to the terms of his custody and may not obey one or more of those terms. Finally, the questions of fact and law in the proceeding are common to his parents and to him.
However, even if one or more of the elements of rule 13.01(1) is made out, the court still has discretion to refuse to make the intervention order. Ordinarily, in a custody case we would think an order permitting a child who is the subject of the dispute to be added as a party would rarely be made.
But this is not an ordinary case. In our view, granting the intervention motion is justified for two reasons. First, J.B. is [page 800] now 16 years of age. Even accepting the expert evidence at trial that he has the emotional maturity of a 13 year old, he is an intelligent young man and has reached the age where his voice is entitled to be heard by this court. Moreover, the trial judge’s order has the potential to dramatically change J.B.’s life. In the light of that potential, he ought to be able to participate in the proceeding that will determine with whom and under what terms he lives, independently of either the alienating or alienated parent.
Second, the trial judge’s order raises important and difficult issues. We think it would benefit the panel to hear J.B.’s perspective on these issues through the submissions of his own counsel. We therefore grant the motion to intervene, but on terms, which we discuss below.”