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by Daniel Gloade on May 12, 2014

The Divisional Court of Ontario’s Superior Court of Justice is dealing with a very interesting case called C.M.M. v. D.G.C, 2014 ONSC 2356. In this case, one child resulted from a brief relationship.  Mother and Father retained lawyers and signed a Separation Agreement.  The Mother got custody and the Father paid to the Mother a lump sum child support amount of $37 500.00.  The Child, now 14, has brought an Application for more child support.

There have been past cases where underaged children have sued for child support. In those cases the child (about 16) was no longer under parental control.  This case is unique because the Child still resided with the custodial parent (Mother).  Although the custodial Mother was added as a party, she clearly wanted nothing to do with this litigation one way or another.

The Child wanted to appeal two decisions from the motions court judge.  First, the Child wanted to set aside the order that she be appointed a litigation guardian.

A litigation guardian is appointed when a vulnerable party is unable to give instructions to a lawyer, usually due to youth or mental incapacity. A litigaition guardian helps the vulnerable party by preventing his or her exploitation.  The courts ensure that the rigor of an adversarial system is maintained by the competent advocacy of a vulnerable party’s position.  Even the opposing parties are protected.  A vulnerable party may escalate the legal costs for all parties with needless litigation or delay.  Vulnerable parties usually have no money so they don’t fear the threat of having to pay part of the opposing parties’ legal costs.  Cost awards can be levied against a litigation guardians, however.

The problem with litigation guardians, however, is finding someone willing to be one.  A litigation guardian assumes all of the responsibility and stress of going to court but does not get a  court award even if successful.  In most cases, a parent usually acts as a litigation guardian. What happens when a child bring a suit against both parents for child support?

The Honourable Mr. Justice Harvison Young of the Divisional Court gave the Child permission to appeal the motions court judge on this issue.  The issue was sufficiently important and the law was unsettled.  It furthered the interests of justice if this issue was examined more carefully.

The second issue was the motion court judge’s restraining order against the Child that prevented her from contacting members of the Father’s family.  The Child engaged in online discussions about her Father’s activities.  The Father argued that his other children would be harmed if they knew of  their Father’s past.  The Child argued that there should be no restraining order because no one feared for his or her safety.  Justice Young held that the harm to the Father’s other children was sufficient to impose a restraining order.

I have diarized following up on this case one year from now.  This will be a very good case to watch!

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