Top 5 Civil Appeals From The Court Of Appeal (March 2017)

1. R.G. v. K.G., 2017 ONCA 108 (Gillese, Benotto and Roberts JJ.A.), February 9, 2017

   A 16 year old minor successfully brought an application for a declaration that she had withdrawn from parental control. Her father's appeal of the declaration was essentially a dispute over the application process: while he submitted that a minor's parents must be parties to an application for a declaration, with full rights to object, file evidence and cross-examine, the child and her mother argued that the parents were not required to be parties because a child has an absolute right to the declaration.

   Due to a problematic relationship with her father, O.G. applied for a declaration under s. 65 of the Children's Law Reform Act, R.S.O. 1990, c. C.12 (CLRA) that she had withdrawn from parental control. Kiteley J. granted the application, declaring that "O.G. is an independent minor with all of the statutory and common law rights and privileges of a minor who has withdrawn from parental control". Notably, Justice Kiteley made the following endorsement:

   [T]he evidence indicates that [O.G.] is a remarkable young woman. I have no hesitation in making the order. There are no respondents in this application because counsel takes the position that the parents are not entitled to notice either of the Application or of the order. I accept his submissions.

   O.G.'s father made several attempts to have the declaration set aside and restore his sole custody of his daughter. He argued that he was entitled to be a party to, or at least to have been given notice of, the application which led to the declaration - relying on s. 62(3) of the CLRA which provides that on an application under Part III in respect of a child, the parties shall include the child's parents. O.G. meanwhile asserted that she had an absolute right to withdraw from parental control and that her father was not entitled to be a party or to receive notice of her application. The only consideration for the court was proof that she had reached the age of 16 in accordance with s. 65 of the CLRA.

   Kiteley J. dismissed the motion to set aside the declaration, holding that since the hearing was not for "custody, access or guardianship", s. 62(3) did not apply and O.G.'s father was not entitled to be named as a party or to receive notice. She framed O.G.'s application not as a request to withdraw from parental control but rather a declaration that her right to do so had been exercised.

   O.G.'s father repeated his arguments before the Court of Appeal, submitting that the application judge's failure to add him as a party was a ground to overturn the declaration. The respondents, O.G. and her mother, claimed that a child has an absolute right to a declaration that she has withdrawn from parental control.

   The Court of Appeal rejected both positions.

   Writing for the court, Benotto J.A. noted that pursuant to basic principles of declaratory relief and the provisions of the CLRA, parents must be parties to a minor child's application for a declaration that she has withdrawn from parental control. As the Supreme Court explained in R. v. Solosky, 1979 CanLII 9, declaratory relief involves "persons sharing a legal relationship" in respect of which the "relative interests" of each are to be determined. In this case, the legal relationship shared was that of parent and child, and the relevant interests were the independence of the child and the custodial interests of the parent. Moreover, s. 62(3) of the CLRA provides that the parents must be before the court in an application "in respect of" a child. Although the heading under Part III states "Custody, Access and Guardianship", the language of s. 62(3) does not limit applications to those issues.

   Although she concluded that parents are to be parties to the application, Justice Benotto emphasized that the court retains discretion "to direct their involvement and participation" in the application. The judge hearing the application will determine, based on the unique facts of the case, what degree of participation is appropriate. Benotto J.A. also noted that Rule 1(7.2) of the Family Law Rules gives the court authority to make orders for directions and conditions respecting procedural matters as it deems just.

   Benotto J.A. found that while the application judge incorrectly rejected the appellant's submission that he should be a party to the application, her error was cured by her conduct of the hearing. The appellant was permitted to file material and make submissions, and the application judge "fully and thoroughly" considered all of the evidence before her.

   Turning to the factors that ought to be considered on a minor's application for a declaration that she has withdrawn from parental control, Justice Benotto rejected O.G.'s submission that the court should consider nothing but her age, automatically granting the declaration if the child is at least 16. She emphasized that when declaratory relief is sought, the court should canvass "the reasons why the declaration is sought, the utility of the remedy and whether, if it is granted, it will resolve the issue between the parties".

   In Benotto J.A.'s view, it was clear that the declaration was necessary to resolve the dispute between O.G. and her father and allow O.G. to move forward with her life. The application judge considered the extensive record and based her conclusions on O.G.'s best interests.

   The court dismissed the appeal with respect to the declaration, rendering the custody issue moot.

2. Jarbeau v. McLean, 2017 ONCA 115 (Simmons, LaForme and Pardu JJ.A.), February 13, 2017

   Darren and Lillian Jarbeau purchased a home from Thermolith Homes Limited. The home was defective, failing to meet the standards set by Ontario's building code. Unfortunately, the Jarbeaus' problems did not end there: the lawyer they retained to sue those responsible for building and selling them the home was also negligent.

   The Jarbeaus hired Ian McLean, who sued Thermolith, the City of North Bay and Tarion Warranty Corporation on their behalf. He did not, however, sue Larry Nelson, the engineer who had negligently certified the design and construction of the home, advising his clients - incorrectly - that they did not have a...