A.A.: A narrow approach to the addition of parties under Rule 18(5)

On September 13, 2007, the SCC rejected an application for leave to appeal by the Alliance for Marriage and the Family (the “Alliance”) in the case of Alliance for Marriage and Family v. A.A. This case looks at whether an intervener has standing to be added as a party in order to qualify to apply for leave to appeal.

A.A. and C.C, two long-term lesbian partners, decided that C.C. would bear a child, but that both would play maternal roles. The biological father of the child, B.B., also wanted to act as father, leaving the child with three parents. After receiving permission from C.C. and B.B., A.A. sought a declaration under s. 4(1) of the Ontario Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”) that she too was a parent within the meaning of the CLRA.

In 2003, the Superior Court of Justice dismissed C.C.’s application, finding that it did not have the authority to grant her declaration, either under the CLRA or through its parens patria jurisdiction. At this point, the Alliance attempted to intervene, but its motion was rejected as the application was dismissed.

At the Ontario Court of Appeal, A.A.’s appeal was allowed and Superior Court’s decision was reversed. A.A.’s application was granted under the parens patriae jurisdiction of the court. A.A.’s appeal was opposed by the Alliance, which was granted leave to intervene; however, the Attorney General of Ontario did not play a role in the appeal and took no position. An amicus curiae was appointed by the Court of Appeal, who supported A.A.’s application.

At the SCC level, neither A.A., B.B., C.C. or the Attorney General of Ontario challenged the judgment by the Court of Appeal. Instead, the Alliance tried to bring the issue before the SCC using Rule 18(5) of the Rules of the Supreme Court of Canada, SOR/2002-156. According to the rule, “In any proceeding, the Court or a judge may order that a party be added or substituted where, in the opinion of the Court or the judge, such addition or substitution is necessary to enable the Court to adjudicate the questions in issue.”

The SCC dismissed the Alliance’s application, finding that it did not have standing to be added as a party. In coming to this decision, the SCC considered the interpretation and application of Rule 18(5). The SCC found that the Alliance was attempting to substitute itself for the Attorney General in order to voice its concern about the impact of the judgment and to address important legal questions regarding the advancement of the law. Its role as an intervener in the Court of Appeal was to defend its view of family law; however, it had “no specific interest in the outcome of the litigation.”

In coming to the decision, the SCC explained that it had never allowed a private applicant to “revive” litigation under Rule 18(5) where it had no specific, personal interest. Further, the SCC found that the applicant had not explained how it qualified for public interest standing according to the Canadian Council of Churches v. Canada (Minister of Employment and Immigration) test. Lebel J. explained for the court,

This Court’s procedure is flexible, but that flexibility has its limits . . . As we have seen, neither the Attorney General nor the immediate parties intend, for reasons of their own, to contest the Court of Appeal’s judgment. The applicant is concerned about the impact of that judgment. Nevertheless, it was merely an intervener in the Court of Appeal, there to defend its view of the development of family law, but it had no specific interest in the outcome of the litigation.

While the SCC did not speak to the issue of whether two lesbian partners can both be considered mothers to a child born to one of them, leaving the child with three parents, or if the Ontario Court of Appeal’s judgment was sound, this decision speaks clearly to the role of interveners and their standing as private applicants for party status under Rule 18(5). By requiring that applicants possess a specific “personal interest” to be added as a party in order to qualify to apply for leave to appeal, the SCC indicates that groups who wish to pursue leave to appeal for the purpose of the development and application of the law may not do so under Rule 18(5) unless they have a specific interest in the outcome of the actual case itself. If the parties to a case do not wish to seek leave to appeal, an interest group, such as the Alliance, which may have acted as interveners at the Court of Appeal level, cannot further pursue litigation under this Rule without a personal interest in the outcome of the case. With the narrow approach taken by the SCC to the standing and party status under Rule 18(5) of public interest groups acting as interveners, the SCC allowed the family involved in this case to finally move on with their lives. Further, had the SCC not required that a personal interest in the outcome of the litigation be necessary to qualify for party status under this Rule, they would have opened the door to potential misuse and unnecessary litigation, which is not only time-consuming for the courts, but costly to society as well.