Court of Appeal for Ontario
Date: 2019-07-24 Docket: C66098 Judges: Hoy A.C.J.O., Trotter and Jamal JJ.A.
Between
Jamshad Khan Respondent (Appellant)
and
Nalita Ramsingh Applicant (Respondent)
Counsel
Ingrid van Weert, for the appellant
No one appearing for the respondent
Heard
July 16, 2019
On Appeal
On appeal from the order of Justice Frederick L. Myers of the Superior Court of Justice, dated October 4, 2018, with reasons reported at 2018 ONSC 5901.
Reasons for Decision
Introduction
1This is a father's second appeal from an order denying him leave to bring a Motion to Change what is in effect a final order dated September 20, 2017 for the custody of and access to his two children and for child support.
2The mother was properly served but did not respond to this appeal.
Background
Events Leading to the Order Under Appeal
3The father and mother separated in December 2004. They are the parents of two children, a daughter, now 18 years of age, and an autistic son, now 14 years of age. The son requires assistance in dressing himself, reading, writing and with school generally.
4Until August 2013, the mother, who is a registered nurse, permitted the father to continue to live with her and the children because he had no other place to live. In August 2013, the police conducted a drug raid on the mother's home while the children were present. They arrested the father, who was subsequently convicted of narcotics offences and possession of a firearm. The father was incarcerated from 2013 to 2016.
5In September of 2016, the mother commenced an application for sole custody of the children, retroactive child support and s. 7 expenses since the father was arrested, and an order requiring the father to complete parenting and anger management courses, requiring any access by the father to the children to be supervised, prohibiting the father from speaking ill of her in the presence or hearing of the children or extended family, or discussing with the children the dispute between them, and restraining the father from, among other things, coming within 500 meters of her and the children.
6In her application, the mother asserts, among other things, that: she has been and continues to be the sole caregiver for the children; the father exposed the children to adult conflict and disparages her in the presence of the children; the father had been verbally and physically abusive to her during the relationship; the father has threatened to take the children to Pakistan so that she will never see them again; the father's lack of judgment and criminal activities are dangerous for the children; and the individuals the father hangs around with are dangerous.
7The father had difficulty in obtaining a Legal Aid certificate, and, as a result, difficulty in retaining a lawyer to respond to the mother's Application.
The Case Management Judge Makes a Temporary Order
8On March 16, 2017, the case management judge made a temporary order on consent that the mother would have sole custody of the children; restricting the father's access to the children to telephone access (to be initiated by the father only on Sundays between 5:00 and 6:00 p.m. or by the children at any time) and to commence only after the father provided stipulated disclosure about his criminal convictions; and that the father serve and file stipulated documents, including a current sworn financial statement (Form 13), at least seven days before the next court date. Without the parties' consent, she also ordered that the father pay child support based on an imputed minimum wage, serve and file his Answer by April 18, 2017, on a peremptory basis, and pay the mother costs in the amount of $2,500.
9The appellant served his Answer on a timely basis, but court staff would not let him file it because it was not accompanied by a sworn financial statement, as required by r. 13 of the Family Law Rules, O. Reg. 114/99. The father's position was that the case management judge had effectively waived that requirement by the provision in her March 16, 2017 order requiring him to file a current financial statement at least seven days before the next court date. The peremptory date for filing his Answer was more than seven days before the next court date. Accordingly, in his view, the March 16, 2017 order relieved him of the obligation under the Family Law Rules to file a sworn financial statement with his Answer.
The Case Management Judge Holds a Case Conference
10The case management judge did not agree with the father's interpretation of her order. At a case conference held on July 12, 2017, the case management judge noted that the father had not yet paid the costs that she had ordered and that the father was in default, because he had not filed his Answer as required by her order of March 16, 2017. In her endorsement, she noted that the mother might ask for final orders at the next court date and ordered the father to pay the mother a further $800 in costs.
The Next Court Date
11On the next court date, on September 20, 2017, the case management judge noted that both costs orders remained outstanding and the father had still not filed his Answer. She also noted that the father had been represented by a lawyer since at least March 16, 2017. She denied the father's request for a further extension. She also ordered that the father "shall not bring a Motion to Change without leave obtained in advance on a Form 14B motion, maximum 2 pp in support not to be served on the other side unless the court orders." She added: "The court shall take into account the payment of costs in determining whether permission should be granted."
The Father Seeks Leave to Bring a Motion to Change
12The father did not appeal any of the orders the case management judge made up to and including the September 20, 2017 order. Instead, he paid the outstanding costs orders and sought leave to bring a Motion to Change supported by a two-page affidavit, dated April 23, 2018.
13In paras. 1 through 4 of his affidavit, the father says why in his view the case management judge's orders were wrong. In doing so, he states in para. 2 that he had not been employed for over 12 years, does not speak, read or write English well, has no marketable skills, has a criminal record, and has health issues that prevent his employment. Para. 5 is as follows:
I have now borrowed money and paid the costs ordered by [the case management judge]. I would like to bring a Motion to Change so that there can be a hearing on the merits with respect to [the son's] care. He is severely autistic and his skills have been regressing. I do not believe that he is receiving appropriate care from the [mother]. I don't work and am available to give [the son] more attention and care than the [mother] can. It is critical for [the son] that the question of who should be his caregiver is decided on its merits. In addition, I cannot pay the support ordered by [the case management judge]. Support arrears are accumulating. I need a hearing regarding whether income should be imputed to me. [The case management judge's] Orders are extremely disadvantageous to [the son] and me. I wish to bring a Motion to Change so that there can be a hearing on the merits.
14On April 27, 2018, the case management judge dismissed the father's motion for leave, writing as follows:
All the evidence provided addressed the issue of why the father thinks the orders made on September 20, 2017 are wrong. That is not a matter for a Motion to Change. This is a matter for an appeal. As the father has a lawyer the Court should not have to point this out. No evidence was provided as to any change in circumstances since the orders were made.
The Father Appeals the Denial of Leave to Bring a Motion to Change
15The father appealed the case management judge's April 27, 2018 order to the Superior Court of Justice. The Superior Court of Justice appeal court judge dismissed the appeal. He rejected the father's argument that since he had paid the outstanding costs awards he was entitled to a hearing on the merits on the questions of custody and access.
16The father did not provide submissions on the nature of the legal test for leave to proceed where a leave requirement has been imposed in cases of default.
17The appeal court judge wrote as follows:
I am prepared to assume that in considering whether to grant leave to proceed, [the case management judge] was required to consider whether [the father] had cured his defaults and whether he advanced a prima facie basis to conclude that there has been a material change in circumstances so as to give an air or reality to his proposed Motion to Change. While he appears to have done the former, he did not do the latter.
18The appeal court judge noted that while there was no trial decision, there was evidence before the case management judge in the form of the affidavits in the continuing record on which she could base her custody, access and support orders. Further, because it entailed the exercise of discretion, the decision of the case management judge was entitled to deference.
Analysis
19We agree with the father that the appeal court judge erred in deferring to the case management judge's decision in the face of an almost complete absence of evidence about the child's best interests. In our view, the case management judge erred in denying the father leave to bring a Motion to Change after he had cured his default and based only on an affidavit that she had limited to two pages.
20In order to make custody and access orders in the best interests of the children, the court generally needs the participation of both parties: King v. Mongrain, 2009 ONCA 486, 66 R.F.L. (6th) 267, at paras. 23 and 31. In some cases, that may not be possible. In this case, it was.
21Appellate courts should give considerable deference to first instance decisions relating to custody and access. And r. 2(3) of the Family Law Rules appropriately gives judges flexibility in how to deal with family law cases, including taking steps to save expense and time – so long as they deal with them "justly". The problem here, in our view, is that as matters evolved, custody and access orders were made for this child in the face of almost a complete absence of written evidence upon which to ensure that the orders were, and continued to be, in the child's best interests: King v. Mongrain, at paras. 34-35. In this case, only the mother's Application and presumably her Form 35.1 Affidavit in Support of Claim for Custody or Access had ever been considered by the court in making what would amount to a final order about custody and access. And, given the two-page limit placed on any request for leave to bring a motion to change, it would be difficult, if not impossible, to make even a prima facie case that a different order was needed in the child's best interests.
22As the father submits, the case management judge's September 20, 2017 order effectively made her temporary order of March 16, 2017 into a final order, without a determination on the merits, and her decision of April 27, 2018 effectively foreclosed a hearing on the merits.
23In her endorsement of September 20, 2017, the case management judge specifically indicated that the court would take into account the payment of costs in determining whether permission should be granted to bring a Motion to Change. Given that there had been no determination on the merits, the father reasonably inferred that if he paid the outstanding costs, the court would grant him leave to bring a Motion to Change, permit him to file his Answer, and proceed on the Motion to Change to determine the issues on the merits.
24The father borrowed money to pay and has paid the outstanding costs. Further, in the two-page affidavit, dated April 23, 2018, that he filed with the case management judge, he deposed that his son's skills had been regressing – a factor clearly relevant to the child's best interests and requiring some further inquiry. It appears that the only court-ordered access at the present time is the telephone access ordered in the temporary order on March 16, 2017.
25The father's Answer, dated April 18, 2017 – which he included in his appeal materials, although it was not admitted by either the case management judge or the appeal judge and, like the mother's application, is as yet untested – suggests that increased access may, in fact, be in the son's best interests. Significantly, counsel for the father advises that the father now has access to the son well beyond the court-ordered single hour of telephone access each week. Instead, we are advised that the father has been seeing the son each week from Thursday evening until Sunday. If this is true, this may be a tacit acknowledgement by the parties that increased access is desirable and certainly suggests that the court should reconsider whether the current access order is in fact in this child's current best interests.
26All of this leads us to conclude that leave should be granted to the father to bring a Motion to Change the parenting terms of the existing order.
Disposition
27Accordingly, the appeal is allowed. The matter is returned to the Ontario Court of Justice so that the father may bring a Motion to Change the parenting order before a different judge.
"Alexandra Hoy A.C.J.O."
"G.T. Trotter J.A."
"M. Jamal J.A."
