9.2: Preparation of judgments and orders
Rule 510: Service

Case Summary

The Director of Child Services had removed four children who had the same mother but two different fathers from their home; permanent guardianship was subsequently granted to the Director in four separate Orders. The parents were dissatisfied and each appealed in separate Actions to the Court of Queen’s Bench. The mother won her Appeal, but the fathers’ Appeals were dismissed.

The Director of Child Services appealed the mother’s Action to the Court of Appeal and one of the fathers applied to be added as a party or to intervene. Justice Côté observed that the Application was a contradiction: in form it was an Application to add a person who was not a party to the Appeal as a Respondent, or alternatively for leave to intervene; but, in substance, it was a late Application to adjourn the Appeal. The Applicant father argued that he had a right to be added as a party to the Appeal, and his delay in making his Application was due to irregularities in the guardianship Order process. Justice Côté disabused the Applicant of this notion, stating that the Orders were properly signed under Rule 9.2(2)(c), and that the Applicant’s Counsel did not reply or object to the draft Order in time.

Justice Côté also noted that Rule 510(1) provided that a Notice of Appeal to the Court of Appeal must be served on the parties affected. Justice Côté opined that, due to the circumstances, it was difficult to understand how the Applicant was or would be affected. Justice Côté explained that the substance of the Application was to adjourn the Appeal because Applicant’s Counsel was not ready to argue the Appeal, a Factum had not been filed, and the Applicant’s Counsel was scheduled to be away on the hearing date. Adding the Applicant as a party was therefore pointless or nearly pointless unless the Appeal was adjourned.

Justice Côté set out the test for adding a party on Appeal stating that the main criteria of protecting a legal interest had two possible sub-parts: whether it is just and convenient and necessity. Justice Côté concluded that the Applicant had not shown a right to be added as a party, and it would be harmful to the children as well as procedurally to add the Applicant at such a late stage. The Appellant’s request to intervene in the Appeal was similarly denied.

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