CITATION: Clayson v. Martin, 2014 ONSC 7506
DIVISIONAL COURT FILE NO.: 607/14
DATE: 20141224
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
CATHY LEE CLAYSON
Applicant
(Appellant)
– and –
PAUL MARTIN
Respondent
(Respondent in Appeal)
Philip Michael Epstein, for the Applicant (Appellant)
No One Appearing
HEARD at Toronto: December 24, 2014
D. L. CORBETT J. (orally)
[1] The parties have conducted a lengthy trial before Timms J. over a period of some 20 days in court ending June of 2014. Justice Timms indicated at the conclusion of the evidence that he had considerable prior demands upon his schedule in terms of reserve judgments and that the parties regrettably could expect a long period of reserve before he would be in a position to release his decision and reasons on the trial.
[2] I pause parenthetically to note that, in the province of Ontario, there was a notorious and critical shortage of judges in the Superior Court in 2014 which materially, significantly, and in some cases such as this one, grievously affected the ability of the courts to administer timely justice. Justice Timms, like others in the Central East Region were labouring under continually increasing demands on their time to be in court and were unable to spend the time that they needed to turn around decisions in cases such as this one.
[3] In criminal cases when delay becomes a factor, there can be dramatic results; cases may be stayed and persons accused of crimes may be released without having a trial on the merits. In civil and family cases, the results are not so dramatic as they are in criminal cases. There is a drag, a delay, that takes place that is wearing on the parties in the case but never makes the front page of the paper. This case is an excellent example in point. It cries out for a decision on the merits, and the experienced trial judge, who has spent 20 days in the courtroom with the parties, is the only person who can deliver that decision, and it is most regrettable that he has not been able to deliver by now.
[4] Indeed, under provincial legislation, the parties are entitled to take their matter to trial within six months where the custody and access of children is concerned. How unfortunate is it that it takes more than six months after the trial was concluded to get the reasons out. And yet, as I have already indicated, I do not fault the trial judge in any way for the delay in releasing his decision, knowing, as I do, the extraordinary burdens that civil and family judges have faced over the past year because of the critical shortage of judges in Ontario.
[5] Those exigent circumstances, however, are not a basis on which to disregard the most fundamental principles of natural justice in order to address the consequences of delay. In the circumstances of this case, the order that is the subject matter of the appeal was made without any request by the parties for the order, without any hearing in front of the judge in respect to whether the order should be made, without any evidence before the judge on the issue decided, without evidence of intervening events up to December 2014, without any reasons that are susceptible to appellate review, and without any meaningful opportunity for appellate intervention.
[6] In short, I accept the submission made by Mr. Epstein that the decision appears to be, regrettably, unfortunately, a profound violation of the principles of natural justice. I say this with hesitation because I am acutely aware that the learned trial judge, very experienced in family law matters, highly respected in the field, has been immersed in the factual matrix of this case for a period of 20 days and no doubt has a strong view of the merits of the case that are reflected in his endorsement. I would not be inclined to interfere with his assessment of the merits were it not for the profound violation of natural justice that is patent on the face of the record.
[7] The two children, ages six and nine, have not had unsupervised access or overnight access with their father for some four years. The paramount principle to be applied when making an interim custody and access order is the best interests of children. I cannot conceive of how it could possibly be in the best interests of the children for them to be told out of the blue, without any warning, a day and a half before Christmas, that for the first time in four years they will be spending a week with their father without supervision.
[8] It is certainly not in best interests of the children to have these kinds of orders made without some opportunity for both parents to manage the expectations of the children and to explain the circumstances and what is going to happen. Any good faith efforts by the parents in these circumstances to try to shield their children from the underlying conflict between them to the greatest extent possible would be impossible in these circumstances.
[9] The interests of the parents here are secondary to the best interests of the children but are also matters to be taken into account, and I cannot conceive of how it could possibly be good for either the applicant or the respondent to have this decision unilaterally dropped upon them on the 23rd of December without warning, without notice, without any opportunity for either of them to make any arrangements. Mr. Epstein advises me, and it is in the record, that the parties have been communicating over the issue of access and have agreed that there will be supervised access on the 26th and the 31st of December.
[10] Justice Timms, in his endorsement, says in para. 1:
Unless the parties have already come to a mutually satisfactory arrangement, which has been reduced to writing, his order is that the children shall be in the care of the respondent from the 26th of December at noon to 31st of December at noon.
[11] I cannot conclude that the access that has been agreed between the respondent and the applicant would fit within that paradigm of “mutually satisfactory arrangement”, although it goes part of the way towards establishing such an arrangement. That also adds as a level of uncertainty of course in interpreting and applying the order of Timms J. for the parties. Of course, if there had been notice and an opportunity to put evidence in front of the learned trial judge, he would have known what arrangements had been agreed between the parties and he could have fashioned an appropriate remedy for them had they been unable to agree on any matters regarding the Christmas period.
[12] The fundamentals of due process in this, as in all matters, are notice, an opportunity for the parties to file evidence, an opportunity for the parties to make argument, a duty on the court to give reasons that are amendable to appellate review. Whatever order is made in respect to an issue such as Christmas access, there is every chance that one side or the other and often in many cases both sides will disagree, will feel the Court has made a mistake. The defence that our system has to the grievances of parties is that they have had a fair opportunity to participate, they have received a reasoned decision, and they have had their meaningful appellate rights, so that no party would be put in a position of feeling that they have lost on the basis of the unfettered discretion of a single person who makes a decision affecting their fundamental lives without giving any reasons at all.
[13] Those are the process concerns I have about what happened here, which I believe render the underlying order unsafe. Given the circumstances in which it was made and the manner which was expressed, I say nothing whatsoever about the underlying merits of the dispute between the applicant and the respondent, and nothing I have said in my reasons should be seen as casting doubt one way or another on the substantive wisdom on the order that was made. My decision is based purely upon the process.
[14] Finally, I am aware that today’s motion is heard and decided without meaningful notice to Mr. Martin. He will no doubt feel aggrieved by the process that has taken place here. I proceed in his absence, without meaningful notice, solely because of exigency – an exigency that did not exist in the court below, and which was created entirely by the timing of the decision below. Stay granted pending appeal; motion for leave to appeal to be brought in due course on proper notice.
D. L. CORBETT J.
Date of Reasons for Judgment: December 24, 2014
Date of Release: December 31, 2014
CITATION: Clayson v. Martin, 2014 ONSC 7506
DIVISIONAL COURT FILE NO.: 607/14
DATE: 20141224
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
D. L. CORBETT J.
BETWEEN:
CATHY LEE CLAYSON
Applicant
(Appellant)
– and –
PAUL MARTIN
Respondent
(Respondent in Appeal)
ORAL REASONS FOR JUDGMENT
D. L. CORBETT J.
Date of Reasons for Judgment: December 24, 2014
Date of Release: December 31, 2014