COURT OF APPEAL FOR ONTARIO

DATE: 2006-10-05 DOCKET: C44404

BEFORE: GOUDGE, SHARPE and ROULEAU JJ.A.

BETWEEN:

MICHAL MOUDRY Applicant (Respondent in Appeal)

• and -

SHELLEY ANN MOUDRY Respondent (Appellant in Appeal)

COUNSEL: Thomas R. Hunter for the appellant Barbara J. Puckering for the respondent

HEARD: September 8, 2006

On appeal from the final order of Justice Lorna-Lee Snowie of the Superior Court of Justice dated June 23, 2005, with reasons reported at 2005 ONSC 22220, [2005] O.J. No. 2655.

ROULEAU J.A.:

[1] The appellant mother appeals from the trial judgment granting the petition for divorce, awarding the respondent father custody of their now four year old daughter with liberal access to the appellant, finding the appellant in contempt of three court orders, settling the property issues and awarding the respondent costs on a substantial indemnity basis.

[2] At the opening of trial, appellant’s counsel requested a short adjournment to give time for her client to attend. The trial judge refused the request and proceeded in the absence of the appellant. The appellant argues that, in the circumstances of this case, by doing so, the trial judge denied her the opportunity to be heard contrary to the principles of natural justice. The appellant further submits that the trial judge misconstrued the evidence and ought not to have changed the de facto custody of a child of tender years from the appellant mother, the primary caregiver, to the respondent as there were insufficient grounds to do so. For the reasons that follow, I would, upon proper terms, order a new trial on the issues of custody and contempt.

Facts

[3] The appellant and respondent were married on February 5, 2000. They have one child born May 2, 2002. They separated on March 31, 2003, when the appellant advised the respondent that she was not returning from a visit to her parents’ home in Gatineau Quebec.

[4] On April 11, 2003, the respondent commenced the divorce proceeding claiming, among other things, custody and the return of his daughter. On May 16, 2003, the parties were ordered to jointly parent their daughter. The appellant, however, was the primary caregiver. The respondent was to have access every other weekend from Friday evening to Tuesday at noon in Mississauga.

[5] The proceedings in this matter disclose that the respondent faced ongoing problems in obtaining the access ordered by the courts. The parties attended half a dozen motions, including one motion for leave to appeal in order to set the terms of access. Included among these are two motions for contempt that were adjourned to trial following the making of interim orders.

[6] As of May 13, 2004, the respondent was to have access about four days out of fourteen with the appellant dropping the child off in Mississauga and the respondent delivering the child to Aylmer, Quebec. As of February 2005, the appellant ceased bringing the child to Mississauga for the father’s access. The appellant initiated proceedings in the Province of Quebec on the basis that as the child’s principal residence was in Quebec, Quebec was the appropriate forum despite the fact that the matter was set for trial in Brampton. The trial was to last eight days commencing May 9, 2005. The date was peremptory to both parties. Despite a further court order, by the date of trial the appellant had yet to resume delivering the child to Mississauga in accordance with the access order.

[7] On Thursday, May 5, 2005, counsel for both parties were advised by the court that there was no judge available to commence the trial on Monday, May 9, but that one may become available later in the week. The parties and their counsel were told to attend, without witnesses, on Monday afternoon at 2:00 p.m. for a “mini pre-trial.”

[8] The appellant’s solicitor advised the appellant that the trial would not commence on the Monday as previously ordered, served the appellant with materials seeking to be removed from the record and advised her of the need to attend the mini pre-trial. On the morning of Monday, May 9, appellant’s counsel’s secretary spoke with the appellant and the appellant advised that she would not be attending and that her counsel had better attend. The appellant’s only instruction to her solicitor at that point was that she should get the matter put off.

[9] Counsel appeared in court Monday afternoon. The judge commenced by asking: “Does somebody want to tell me what’s going on? This is supposed to be a pre-trial. Both clients are supposed to be here.” Appellant’s counsel advised that she was moving to be removed from the record and that her client would not be there and had asked to have the matter put off. The judge then heard submissions from the respondent’s solicitor concerning the difficulties encountered in obtaining the court ordered access. Upon receiving this information, the court responded: “Well, there may not be a judge for a pre-trial, a last minute pre-trial, but maybe I’ll sit as the trial judge.” She then commenced the trial, dismissed the appellant’s solicitor’s request to be removed from the record and refused the appellant’s counsel’s request to have the matter adjourned until the next morning in order to give her client an opportunity to attend the trial. With respect to the length of the trial, the trial judge revised the eight-day estimate and stated: “[I]t won’t be eight days if the other side isn’t appearing.”

[10] When asked by the judge whether she was ready to proceed, the respondent’s solicitor said that, although the parties had been told that the trial would not commence that day and were not to bring their witnesses, she had her client present and could call him as the first witness.

[11] The trial commenced, the respondent gave evidence and was cross-examined. Appellant’s counsel had understood that the trial judge would complete the matter that day and, therefore, had closed her cross-examination of the respondent. Upon being advised by the court that the matter was going to be continued the next day and that the reexamination of the respondent would be put over to then, counsel for the appellant sought permission to continue the cross-examination of the respondent the next day. This, she explained, would allow her the opportunity to review her file which, because the matter was not to proceed to trial that day, she had left in her office. The trial judge refused. The appellant’s counsel then requested a short one-hour adjournment to allow her to review the court file to determine whether any further cross-examination of the respondent was necessary. The court refused this short adjournment and advised counsel that if she was unhappy with this, “the Court of Appeal is always looking for work.”

[12] At the opening of the second day, counsel for the appellant advised the court that, after leaving court the previous day, she had called her client just before 5:00 p.m. and left a message for her at work and had not been able to reach her at home. She had also left a message on a cell phone number that she had. She had yet to communicate with her client and, therefore, again requested an adjournment. It was denied.

[13] The trial therefore continued. The respondent was reexamined at length and the respondent’s mother gave evidence. Counsel for the respondent closed her case in the course of the morning and, in the circumstances, appellant’s counsel advised that she had no evidence to call. At this point, appellant’s counsel advised the court that upon returning to her office the previous evening she had been able to retrieve and review her file. There was an outstanding motion to change the venue or stay the proceedings on the basis that the Quebec court had jurisdiction in this matter. The judge agreed that it ought to have been heard before the matter proceeded. The judge asked for submissions on the motion. The balance of that day and part of the next day were devoted to arguing this motion and making final submissions with respect to the trial itself.

[14] At the close of the second day of proceedings, appellant’s counsel indicated that she had understood that the matter would be completed that day. She had not anticipated that it would go into a third day and would make arrangements to cancel her commitments for that day.

[15] At the beginning of the third day, appellant’s counsel advised that, upon returning to her office the previous evening, she had received a fax letter from her client sent at 1:48 p.m. that day. The letter asked that several issues be raised in the course of the trial. It also stated:

I just received your voicemail of yesterday. You know that I leave the office between 4:00 and 4:30 p.m. Your message was incomprehensible; I don’t understand how a trial can proceed when you have not called any witnesses and had just asked to be removed from the record… It has taken two years to get to trial and now I will not be having a proper trial. This is completely unacceptable.

The trial evidence having been completed the prior morning, there was little appellant’s counsel could do to follow up on the requests set out in the appellant’s letter.

[16] At the end of the third day the trial judge took the matter under reserve. The decision was issued several weeks later. Custody of the child was awarded to the respondent and the appellant was ordered to have access at least every other week from Wednesday to Sunday. The appellant was also held in contempt of three previous court orders and ordered to pay costs on a substantial indemnity basis as well as a fine of $5,000.

Position of the parties

[17] The respondent submits that the trial judge was correct to proceed with the trial in the absence of the appellant and not grant any adjournments. The appellant had made it clear that she wished the matter put off and would not be attending.

[18] In support of that position, the respondent refers to:

(a) the appellant’s message to her counsel that she would not be attending and that she should get the matter put off;

(b) a message left with the court office by the appellant that she would not be attending that day;

(c) the fact that the appellant did not appear for the mini pre-trial despite the fact that she knew she was required to attend;

(d) the fact that the appellant did not appear on the second or third day of the trial;

(e) the parties knowing that, although no trial judge was available on the Monday, a trial judge might become available later that week;

(f) the urgency in the matter proceeding because the appellant had been obstructing the respondent’s access since February 2005; and

(g) the record of proceedings which discloses a history of obstruction and non-respect of court orders.

[19] The appellant concedes that she ought to have been present on the Monday afternoon for the mini pre-trial but submits that the sanction for her failure to appear ought not to have been to convert the scheduled pre-trial into a trial and to proceed with it in her absence. Both parties had been advised that no judge was available to commence the trial on Monday, May 9, and that the parties and their solicitors were to attend that afternoon for a mini pre-trial without witnesses. Both counsel clearly understood that the trial would not start that day although it could possibly start later that week if a judge became available. Neither party’s counsel was gowned. No witnesses were present and the appellant’s counsel did not in fact have her file with her that day.

[20] The appellant was from out of town, residing in Gatineau, Quebec and working in Ottawa. Her decision not to attend on the Monday and her request that the matter be put off should, the appellant submits, be considered in context. She knew that the trial would not proceed that day, that her counsel was moving to be removed from the record and that there was an outstanding motion to have the Ontario proceedings stayed pending the outcome of the Quebec proceedings. Although she ought to have attended the mini pre-trial, there was no suggestion that she would not attend the trial.

Analysis

[21] The record does not disclose precisely when the appellant first became aware of the fact that the trial was proceeding. The only clear indication is that by 1:40 p.m. on the second day of trial, after the respondent’s evidence had been completed, the appellant was aware of the trial, as she transmitted some instructions to her counsel. She likely became aware of the trial proceedings sometime earlier that day. Her counsel had left a voice mail at her office after she had left for the day on Monday. The content of that message was not made part of the record, but one might have expected it to contain privileged communication such as an assessment of the first day’s proceedings and counsel’s expectation as to the next day’s proceedings, including counsel’s understanding that the trial would be completed on that second day. In any event, the appellant referred to the message as being “incomprehensible.”

[22] In my view, the trial judge may well have misunderstood the information she was given and believed that the appellant’s advice to her solicitor that the matter should be put off and that she would not attend related to the trial and not to the mini pre-trial. This is apparent from the statement in her reasons that the appellant “chose not to personally attend trial” and from comments made by the trial judge, such as the comment made on the second day that “[s]he [the appellant] knew that this was going ahead. She actually knew that you were briefly in court yesterday and advised you to delay it”. From my review of the record, the appellant’s comments that she would not attend and that she wished to have the matter put off likely related to the mini pre-trial scheduled for the Monday. This and the motion by her solicitor to be removed from the record would be the only things she would have known were going ahead on the Monday. Had the appellant been advised that the trial would be proceeding the next day or later that week, there is no suggestion in the record that, given the opportunity and time necessary to travel from Ottawa to Brampton, she would not have attended. The tone of the letter to her solicitor sent on the second day suggests to me that she was in fact intent on participating at the trial.

[23] Further, I disagree with the trial judge’s characterization of the two motions (the motion by the appellant’s solicitor to be removed from the record and the request for an adjournment of the trial to the following day) as being made by the appellant for “tactical reasons” to frustrate and delay the trial. The appellant was not the author of the motion by her solicitor to be removed from the record and her inability to pay her solicitor’s fees is in no way tactical. The motion to adjourn the trial to the next day would, if granted, have had minimal impact in terms of delay and, given that the court had advised the parties that the trial would not start that day, the motion could hardly be seen as tactical.

[24] In the circumstances, the trial judge ought not to have commenced the trial on the afternoon of May 9. Further, having decided that she would proceed with the trial, she ought to have granted the appellant’s request for an adjournment at least to the following morning.

[25] There clearly would have been no harm or prejudice to either party if the trial judge had granted the requested adjournment to the following day. Having come to argue a motion to be removed from the record and knowing that no judge was available to commence the trial that day, appellant’s counsel was clearly unprepared for trial. The short adjournment would have allowed the appellant’s counsel the afternoon to contact her client, retrieve her gown and file from her office and obtain clear instructions. Also, assuming contact could be made that afternoon, this would have given the appellant the opportunity to travel to Brampton to attend trial the next day. Instead, the trial commenced and the crucial evidence of the respondent was heard, including cross-examination, before appellant’s counsel could access her file or leave a message with the appellant that the trial was proceeding.

[26] The trial judge’s refusal of appellant’s counsel’s request to carry over the cross-examination of the respondent to the following day, in order to allow her time to review her file and communicate with her client, gave rise to additional concern. Although appellant’s counsel had closed her cross-examination of the respondent, she explained that she had done so only because of her understanding that the trial judge had determined that the matter would be completed that day. Again, no harm or prejudice would have been suffered by the respondent if the cross-examination had been carried over into the following day or, at a minimum, the one hour adjournment requested by appellant counsel to review the court file had been granted.

[27] As far as we can tell, by the time the appellant received the message, the trial had commenced and the respondent’s evidence was complete. As set out earlier, the content of the message she received was not made part of the record but it likely included an assessment of what happened on the first day and that her counsel expected that the trial would finish on the second day. There would have been little point in the appellant making arrangements to travel to Brampton in an attempt to attend before the trial ended. The appellant should, however, have written to the court explaining her absence and clearly stating that she had been willing to appear at her trial whenever scheduled. Given how this matter unfolded, this probably would have been seen as self-serving and as asking the judge to turn back the clock. In the end, the appellant simply attempted to give last minute instructions to her solicitor and expressed her frustration with the situation.

[28] The issues involved in this trial were very significant. There were three allegations of contempt and the respondent proposed changing the custody of a child of tender years. The issues involved went beyond the interest of the two parties. Because the issues required an analysis of the best interest of the child, the need for procedural fairness was amplified. (See Catholic Children’s Aid Society of Metropolitan Toronto v. O. (L.M.) (1996), 1996 ONSC 7271, 139 D.L.R. (4th) 534 (Ont. Ct. Gen. Div.) aff’d (1997), 1997 ONCA 4445, 149 D.L.R. (4th) 464 (Ont. C.A.).) In determining the appropriate child custody arrangement, the court should have been cautious before proceeding in the absence of the primary caregiver.

[29] Although the appellant clearly had an obligation to attend the mini pre-trial scheduled for the afternoon of May 9, her failure to do so should not have resulted in her losing the right to be present at the trial. There were other sanctions available to the judge that could have been applied other than proceeding with a trial on the merits in her absence. With respect to the access issues and alleged failure to comply with prior court orders, the court could, if so inclined, have dealt with these matters on an interim basis.

[30] In my view, by proceeding in the manner that she did, the trial judge denied the appellant procedural fairness with the result that the rules of natural justice were undermined. The appellant was, in effect, denied the right to be heard, a right which is fundamental to our justice system, as she could not participate at the trial or give evidence. (See Supermarchés Jean Labrecque Inc. v. Flamand, 1987 SCC 19, [1987] 2 SCR 219 at para. 46.)

Conclusion

[31] In conclusion, I would, upon proper terms, set aside those portions of the trial judge’s order dealing with custody and contempt. The appellant is not asking that the other aspects of the order be set aside. In light of this result, I would also set aside those portions of the judgment dealing with costs. Costs, other than those for the trial itself, which I will address, would be determined at the new trial. Given my reasons on the procedural fairness issue, I need not address the other grounds of appeal.

[32] There would probably be no need to repeat the trial in this matter were it not for the appellant’s conduct and her unexplained failure to appear on May 9, as required. The respondent is a Mississauga Transit driver earning about $48,000 per year. He is of limited means and has incurred substantial costs and expenses in the course of the proceedings. His conduct cannot be faulted and he ought, therefore, to be restored to his pre-trial position in so far as it is within the power of this court to do so. Accordingly, I would allow the appeal, set aside paragraphs 2, 6, 7, 10 and 16 of the order and order a new trial of the custody and contempt issues upon the following terms:

1. the appellant is to pay the respondent’s costs thrown away at the former trial fixed at $9,000;
2. paragraph 11 of the order is amended to provide that the costs specified in paragraph 1 of this order are to be paid from any amount currently remaining of the appellant’s share of the proceeds of sale of the matrimonial home; and
3. the costs specified in paragraph 1 of this order shall be paid within sixty days hereof, failing which, paragraphs 2, 6, 7, 10 and 16 of the order are reinstated and the order for a new trial is revoked.

[33] I am concerned, however, that disruption to the child be kept to a minimum. The respondent has had custody of the child for over a year. The appellant asks that custody be changed to the situation in effect before the trial judge’s order. In my view, that is not in the best interest of the child. Assuming that the above-noted condition is met, it is in the interest of the child that the present custody and access arrangements be continued on an interim basis pending the new trial on the custody and contempt issues. I would so order, and provide that nothing in these reasons is intended to interfere with the jurisdiction of the Superior Court to vary as if the order were an order of that court.

[34] With respect to costs in this court, this is, in my view, one of those exceptional cases where the losing party should not be required to pay the costs of the appeal. As set out earlier, it is the appellant’s failure to appear as required at the pre-trial that triggered the events that ensued. In light of this fact and taking into account the circumstances of this case, I would not award costs of the appeal.

“Paul S. Rouleau J.A.”

“I agree S.T. Goudge J.A.”

“I agree Robert J. Sharpe J.A.”

RELEASED: October 5, 2006