Court File and Parties
COURT FILE NO.: FS 19-146-AP DATE: 2020/05/08 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Alyssa Taylor, Appellant/Applicant AND: Justin Monette, Respondent
BEFORE: Nadeau, J.
COUNSEL: Edward Rae, for the Appellant/Applicant Michael Constable, for the Respondent
HEARD: February 13, 2020
Reasons on Appeal
There is a publication ban in effect with respect to these proceedings.
[1] There are five main grounds for this Appeal:
(a) First, the motions judge erred in law in making an interim order with significant change in interim access in a context where multiple settlement conferences had been held and the next step would be to set a date for a motion for summary judgement or for trial.
(b) Second, although both counsel and the motions judge missed this, since the motions judge presided over a settlement conference, gave an opinion at a case conference and/or saw an offer to settle on the issues of access, he was therefore precluded from presiding over an interim motion or a trial on the issue of access.
(c) Third, the motions judge erred in law by failing to realize that the parties define the dispute and only where exceptional circumstances exist, does he have the authority to make an order that goes beyond what was asked for in the notice of motion.
(d) Fourth, the motions judge made an order that was temporary ‘in name only’ when, in reality, it was a final order that effectively disposed of the access issue.
(e) Fifth, the motions judge’s actions would give the reasonable observer a reasonable apprehension that the motions judge may have been biased.
[2] Upon my review of the revised Factum of the Appellant mother and the Factum of the Respondent father for this Appeal of the Temporary Order made by Justice Bradley on September 19, 2019, and after hearing the oral submissions of their counsel on the hearing of this Appeal, for my proper determination of this matter I have considered the Overview and Concise Summary of the Facts and the revised Factum of Alyssa Taylor as well as the Concise Summary of the Facts and the Factum of Justin Monette. I have also reviewed and considered the Proceedings at Court before the Honourable Justice P. Bradley on September 19, 2019, as well as his Reasons for Decision commencing at page 76.
[3] The record discloses that this family matter commenced in August 2017, and has had numerous court appearances including mediation. Most importantly for the purposes of this Appeal is that, on January 22, 2019 these same counsel conducted a Settlement Conference before Justice Bradley, including on the issue of the father’s access. I have reviewed in detail the Settlement Conference Briefs filed by both the mother and the father, as well as the Family Settlement Conference Report completed by Justice Bradley on that date.
[4] On August 22, 2019, the father served and filed a motion and both these same counsel appeared before another judge to set a date. The father’s access to the child was one of the issues specified by that judge, and her Endorsement also stated the motion was to be argued on September 19, 2019 with Justice Bradley presiding.
[5] On both August 22 and September 19, 2019 there was no mention made of the fact that Justice Bradley had presided over a Settlement Conference, including the issue of the father’s access, barely seven months earlier. Neither of these same counsel that argued the motion on September 19, 2019 raised the issue, and the motions judge did not recuse himself. Justice Bradley, for oral reasons delivered that day, made the Temporary Order granting the father increased access to the child.
[6] On the September 26, 2019, one week later, that same counsel for the mother appealed the Temporary Order, indicating as the first of six grounds of appeal that;
“ The motions judge erred in hearing a matter over which he had presided as a settlement conference judge and where he had provided an opinion about access and its ultimate disposition, contrary to Rule 17(24) of the Family Law Rules (although neither counsel noticed this at the time and therefore neglected to point it out to the motions judge). ”
[7] Counsel for the Appellant mother submits that there are now five main grounds for this Appeal. With respect to the standard of my judicial review of this Order by Justice Bradley, in A.B. v. N.L.A., 2013 ONSC 2990 , [2013], O.J. No. 2861 Justice Czutrin stated the following:
“56 As a judge sitting on appeal, I am guided by the standard of appellate review as set out in Housen v. Nikolaisen, 2002 SCC 33 , [2002] 2 S. C. R. 235 (S. C. C.). The standard is as follows:
i. on pure questions of law, the standard is correctness;
ii. as to findings of fact, the standard is overriding and palpable error, and
iii. with respect to mixed fact and law, the standard is also overriding and palpable error unless it is clear the trial judge made an error in principle which may amount to an error in law and be subject to the standard of correctness.
57 Palpable and overriding error has been defined by the Ontario Court of Appeal as”… findings made in the complete absence of evidence, findings made in conflict with accepted evidence, findings based on a misapprehension of evidence and findings of fact drawn from primary facts that are the result of speculation rather than inference” (Waxman v. Waxman, 2004 ONCA 39040 , [2004] O.J. No. 1765 , at para. 296 ). ”
[8] As Counsel have submitted in their respective Factum and in their oral submissions, my review must include whether the motions judge exceeded his jurisdiction or improperly applied the Family Law Rules so as to constitute an error in law. I have also considered, as submitted, whether the process was so procedurally unfair that I must set aside this Temporary Order made by the motions judge.
[9] As I indicated to counsel during the hearing of this Appeal, this one particular second ground of appeal appeared striking to me as I prepared by reviewing their respective Factum and the case authorities presented; the fact that the motions judge had conducted a Settlement Conference on the very issue of the father’s access to the child not even eight months earlier. I requested counsel’s submissions on that second ground of appeal first, knowing that being completely satisfied on that question alone, or in combination with the other four grounds of appeal, would require my setting aside the Order made on September 19, 2019. I note that the bulk of the grounds of appeal are concerns raised about the lack of procedural fairness in the Order made by Justice Bradley.
[10] For reasons which I am outlining, I find that procedural fairness was lacking and that there was no jurisdiction to make that Order in these circumstances; on that second ground of appeal alone I must set aside the Order of Justice Bradley. I make no findings on the substantive issue of the father’s access to the child as decided by the motions judge.
[11] Rule 17 of the Family Law Rules , under the heading SETTLEMENT CONFERENCE JUDGE CANNOT HEAR ISSUE, provides at subsection (24) “A judge who conducts a settlement conference about an issue shall not hear the issue.” I note the exception for a child protection case.
[12] In Gajda v. Canepa, 2018 ONSC 4534 , [2018] O.J. No. 4534 , the challenge was to determine what is meant by “issue” in subrule 17 (24). It was decided that an “issue” relates to the generic legal issue involved in the case and in the trial. “Issue” must be interpreted to mean a substantive issue such as custody or access, and not merely a procedural matter. On September 19, 2019, Justice Bradley as motions judge was therefore clearly deciding on an issue, the father’s access to the child, upon which he had presided and received offers to settle from both of the parties at the Settlement Conference on January 22, 2019.
[13] Rule 17 (24) appears mandatory on its face. In fact, a literal reading of the rule suggests that a judge who conducts a Settlement Conference on an issue cannot hear it, even with the consent of the family litigants. However, the leading authority on this question in this province is Brueske v. Brueske, 2016 ONSC 4903 , [2016] O.J. No. 4903 , where the Divisional Court indicated the following:
“15 Dealing with the first point, as a matter of principle, the judge that hears the settlement conference should not decide the issues between the parties without a clear consent from both parties, particularly when the settlement conference judge considers offers to settle, as happened in this case (see: B.(A) v. (N.L.) 2013 ONSC 2990 ; Afful v. Laing 2014 ONSC 74 ) . ”
[14] In the aforementioned Afful v. Laing , Justice Czutrin explains the rationale for Rule 17 (24) in the overall context as follows:
“105 Rule 17(10) requires that a case shall not be scheduled for trial unless, (a) a judge has conducted a settlement conference; or (b) a judge has ordered that the case be scheduled for trial.
106 Under Rule 17(24), a judge who conducts a settlement conference about an issue shall not hear the issue, except as rule 17(25) provides (re child protection). This however, by logical extension, must also apply to a judge who expresses views at any conference. If a judge expresses a view and then considers the conference briefs as evidence (unless there are unequivocal concessions) and thereafter disposes of substantive issues on a final basis in the absence of consent, this runs contrary to the objectives of the Rules. It undermines the ability of parties to come to conferences with resolution and compromise in mind and express settlement positions, for fear of their positions being considered evidence so as to dispose of the matter on a final basis.
107 The requirement of a settlement conference before a trial and that the settlement conference judge should not hear the trial speak to procedural fairness and the need for clarity as to process. ”
[15] Given my determination on the second ground of appeal, and although I need not therefore necessarily address the remaining four grounds of appeal, nor for that matter the preliminary substantive issue raised by the mother’s counsel that there was not an explicit finding by the motions judge that there had been a material change in circumstances since the date of the last Order, I note the following guidance from the Divisional Court in Mudry v. Danisch, 2014 ONSC 3419 , [2014] O.J. No. 3419 :
“135 In Goslin v. Goslin , 1986 CarswellOnt 320 (C.A.) , the Ontario Court of Appeal reversed an order of a trial judge, [1985] O.J. No. 669 , where neither party had asked for the relief given.
136 In Bellefontaine v. Slawter, 2012 NSCA 60 , 2012 CarswellNS 327 (C.A.) , the Nova Scotia Court of Appeal overturned a decision of a trial judge, [2011] N.S.J. No. 621 , on the grounds of denial of procedural fairness where neither party had requested the relief granted.
141 The June 12 Order had the effect of varying a previous final Order, yet the June 12 endorsement contained no express finding of a material change, the effect of which would vary a previous final order. With no finding of material change, Justice Paisley had no jurisdiction to vary the final Order of June 12, 2012.
142 In Persaud v. Persaud-Garcia, 2009 ONCA 8851 , 2009 CarswellOnt 8851 (C.A.) , the reasons of the court contain the following at para 3:
The motion judge was without jurisdiction to make the Order in question. As this court has made clear, jurisdiction to vary a custody access order is dependent on an explicit finding of material change in circumstances since the previous order was made.
143 A material change must be substantial, unforeseen and long lasting. There has been no significant and continuing change such as to permit a variation. The Court did not specify any material change in circumstances to permit a variation. Marinangeli v. Marinangeli, 2003 ONCA 27673 , 2003 CarswellOnt 2691 (S.C.J.) at para. 49 ; Smith v. Helppii, 2011 NSCA 80 , 2011 CarswellNS 465 (N.S.C.A.) at para. 21 ; D. (K.) v. D. (N.), 2011 BCCA 440 , 2011 CarswellBC 3325 (B.C.C.A.) at para 22 .
144 In a motion seeking leave to appeal an interim custody and access decision, the Divisional Court in Wiedrick v. Lemesurier , 2006 CarswellOnt 281 (Div. Ct) stated at para 15 :
A decision granting custody or determining access will frequently establish a status who, which is almost impossible to alter at trial …… The responsibility of making such decisions is a heavy one. It is therefore extremely important that parties be provided with an explanation for a decision, which may well determine the course of their family life on a permanent basis.
145 In McEachern v. McEachern , 1994 CarswellOnt 408 (OCJ – Gen. Div) at paras. 8 and 9, the court granted leave to appeal an interim custody and access Order that changed the status quo on the basis of the wishes of the young children expressed through an assessment report. The court stated that the interim Order “went contrary to the generally accepted principle that the status quo ought not to be changed on an interim basis in the absence of evidence that the existing arrangement is harmful to the children.” The court further stated that “maintaining the status quo may not be, in every case, in the best interests of the child but I think there should be some compelling evidence to justify a change. ”
[16] Accepting that the motions judge was bound by the above guidance from these authorities on September 19, 2019, as I have indicated previously I make no findings in this Appeal on the substantive issue of the father’s access to the child as decided by the motions judge.
[17] This Appeal is therefore allowed and the Temporary Order of Justice Bradley dated September 19, 2019 is set aside. The matter is remitted for a new hearing before a different judge. As submitted by both counsel, this is not an appropriate case to award costs.