The Ontario Divisional Court recently unanimously reversed the Ontario Superior Court’s decision in CMM v DGC 2015 ONSC 2447, finding that a child seeking child support from a parent should be required to have a litigation guardian in the proceeding.
This decision is important because it protects access to justice for children in family law proceedings, allowing minors to have a voice and protect their own rights in family court.
The appellant, CMM, was a 16 year old child who sought child support from her biological father, the respondent DGC. The child’s mother was not involved in the daughter’s claim. The parents had a short relationship that resulted in an unexpected pregnancy. They negotiated and executed a written agreement providing that the father would pay a lump sum of $37,500 the mother and that the father would have no contact with the child.
However, in 2013, the appellant wrote to DGC’s mother request financial support. In December 2013, the motion judge held that the appellant had to be represented by a litigation guardian. The motion judge relied on Rule 7 of the Rules of Civil Procedure, having found that the Family Law Rules, did not address the issue.
Using the standard of correctness, the Divisional Court found that the motion judge erred in her decision and that the Family Law Rules did adequately cover the situation and there was no need to refer to the Rules of Civil Procedure. The Court found that “the rationale for having separate rules governing family law proceedings is that there is a distinct difference between the issues raised in family law matters and those raised in general civil proceedings” (at para 16). Under rule 2(1) of the Family Law Rules, children are exempt from litigation guardians where they are involved “in a custody, access, child protection, adoption or child support case”. As the appellant in this case was involved in a child support case, she was therefore exempt from the requirement.
The Court noted that “there is a legitimate concern that the requirement that a child must always have a litigation guardian in such matters may effectively disenfranchise many children from the very relief that the Family Law Act … accords to them” (at para 24). As a result, the appellant is permitted to continue to proceed in her application for child support against her father without a litigation guardian and is able to directly instruct counsel of her choice.
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To read the full decision click here.