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CHILDREN DON’T NEED A LITIGATION GUARDIAN IN FAMILY LAW CASES

by Daniel Gloade on February 26, 2015

The Divisional Court heard an interesting appeal that is both interesting and may have profound consequences.  It is the case of C.M.M. v. D.G.C., 2015 ONSC 39.

In this case, the Mother and Father signed a Separation Agreement. Separate counsel represented each party at the time.  In the Agreement, the Father agreed to refrain from communicating with either the Mother or his Daughter.  If he did initiate contact, he would be required to pay child support as per the Child Support Guidelines (far more than $37 500).

If the Mother later made a claim for child support as per the tables, then she would need to pay back the $37 500.00 lump sum payment.

The Separation Agreement also stated the parent’s acknowledgement that the law does not permit either party to release their Daughter’s right to financial support.

The Daughter brought a claim for child support.  Specifically she wants funding to attend a private school.  The school not only admitted her but also gave her a $5000.00 scholarship.  She wants the Father to contribute to the shortfall.

The lower court held that she needed a Litigation Guardian to represent her in these proceedings.  A Litigation Guardian is someone who makes decisions regarding another person’s litigation.  Usually, it is an adult family member making decisions for a family member unable to handle a legal proceeding cognitively by either age or illness.

An interesting aspect of being a Litigation Guardian is that a judge may make him or her personally responsible for paying some of the opposing party’s legal costs if the Litigation Guardian made unreasonable decisions that needlessly prolonged the case.

In the matter before the courts, the Daughter signed an Affidavit stating that no one is willing to be her Litigation Guardian.  All of her friends and relatives either are a potential party or are afraid of being sued.

The Honourable Madame Justice Harriet Sachs held that the Family Law Rules is a complete code and that it does permit the Daughter (now 15 years old) to be a party to a legal proceeding without a Litigation Guardian.

Justice Sachs acknowledged that there is a danger that a child may make unreasonable decisions because of an immature mind or because the child knows that his or her lack of wealth makes it unlikely that he or she will be responsible for paying a portion of the opposing party’s legal costs.

Although impecunious and unreasonable litigants are undesirable, the courts still allows them to make their case.  Also, the Family Law Rules gives judges a wide discretion to control the litigation process to ensure that there is a fair and expeditious resolution to disputes.

 

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