Rule 7(5) of the Family Law Rules states as follows:
The court may order that any person who should be a party shall be added as a party, and may give directions for service on that person.
I agree with the applicant that, at this time, [the child’s great-aunt] Ms. Dennis is not a parent to the child and has never had care and control of the child; and consequently, she does not have standing to be added as a party pursuant to rule 7(4) of the Family Law Rules unless this Court orders otherwise.
The central question is whether or not I should exercise my discretion to add Ms. Dennis as a party in these proceedings pursuant to Rule 7(5) Family Law Rules.
The discretion to exercise is to be used sparingly and only when necessary for the just determination of litigation as stated by Justice McSorley in Breen v MacArthur, 2016 ONSC 2454 (CanLII) at para. 5 of the decision, Justice McSorley stated:
Rule 7(5) states that the court may order that any person who should be a party shall be added as a party and may give directions for service on that person. This rule gives the court discretion with respect to whether a person is added as a party. The rule itself provides no criteria or direction as to how the court should exercise its discretion. There can be no doubt that the court has the discretion to add persons as parties to a case. However, that discretion should be used sparingly and only when necessary for the just determination of the litigation.
In a child protection case, Justice Campbell in Children’s Aid Society of London and Middlesex v. S. H., 2002 CanLII 46218 (ON SC), [2002] O. J. No. 4491 set out the following principles to be considered before adding a party in a child protection proceeding:
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- whether the addition of the party is in the best interests of the child,
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- whether the addition of the party will delay or prolong proceedings and duly,
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- whether the addition of the parties is necessary to determine the issues, and
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- whether the additional party is capable of putting forward a plan that is in the best interests of the child.
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The criteria set out in the Children’s Aid Society of London and Middlesex has been applied in non-child protection proceedings as in Santilli v. Piselli, 2010 ONSC 2874 (CanLII), 87 R.F.L. (6th) 135 and Worrall v. Worrall 2012 ONSC 4388 (CanLII). I agree with the analysis of Justice Mitrow in the Worrall decision where he stated at para. 32 the following:
32 By way of summary, the following criteria, which are not exhaustive, can be applied to determine when a person should be added as a party pursuant to sub-rule 7(5) of the Family Law Rules:
a) is the person a “necessary” party to determine all issues in the case;
b) in determining “necessity”, it will be unlikely that necessity can be established if the proposed party has no “legal interest” in the case, meaning that no order can be made for or against, the proposed party;
c) in a circumstance or a proposed party has no legal interest in the case, the court may exercise his discretion to add the proposed party in situations (in this list is not meant to be exhaustive) where there are unusual facts, there is evidence of some collusion between the parties in the matrimonial proceeding or the case is egregious. The exercise of the discretion to had parties in the circumstances should be exercised very sparingly.”