COURT OF APPEAL FOR ONTARIO

CITATION: D.G. v. A.F., 2014 ONCA 436

DATE: 20140528

DOCKET: M43734 M43752 C57829

Lauwers J.A. (In Chambers)

BETWEEN

D. G.

Applicant

and

A. F.

Respondent

D. G., acting in person

A. F., acting in person

Heard: May 8, 2014

On application for an extension of time to move to set aside the order of Doherty J.A. dated March 14, 2014.

ENDORSEMENT

[1] The applicant moves under rule 3.02 of the Rules of Civil Procedure for an order extending the time within which she may pursue a motion before a panel of this court, under s. 7 of the Courts of Justice Act, to set aside the order of Doherty J.A. dated March 14, 2014. The time for such a motion is limited by rule 61.16 of the Rules to four days. As a result of faulty legal advice, the appellant was of the mistaken view that she had 30 days to bring the motion.

[2] The respondent brings a cross-motion for an order: “that any further litigation from the appellant regarding myself and the children be done through a new application to request leave to do so.”

A. Overview

[3] This is a bitterly contested family law case. Justice A.J. Goodman heard the trial over 16 days and issued a decision on February 3, 2012, reported as 2012 ONSC 764. The decision, at 89 pages, is thorough. The trial judge issued a detailed order, under which the respondent obtained exclusive custody of the couple’s children, X. F. F., born March 31, 2007, and S. R. F., born July 25, 2008. While the applicant has been pursuing this appeal, she has chosen not to see her children, despite an access order.

B. Procedural History

[4] This is the litigation history:

i. The trial began on November 7, 2011 and continued intermittently for sixteen days until February 1, 2012. The decision was issued on February 3, 2012.

ii. The applicant mistakenly appealed to the Divisional Court, and perfected her appeal in November 2012. The appeal languished for 18 months at the Divisional Court when she discovered that she was in the wrong court.

iii. First extension granted by Weiler J.A. on September 23, 2013 requiring the applicant to perfect by October 30, 2013.

iv. Second extension granted by Doherty J.A. on October 30, 2013 requiring the applicant to perfect by to December 2, 2013.

v. Third extension granted by Rosenberg J.A. on December 9, 2013 requiring the applicant to file transcripts by December 13, 2013 and to perfect by December 16, 2013.

vi. Registrar dismissed the appeal for delay on December 31, 2013

vii. Fourth extension granted by Laskin J.A. on February 6, 2014 requiring the applicant to perfect by February 28, 2014. The Registrar’s dismissal order was set aside.

viii. Registrar dismissed the appeal for delay for the second time on March 6, 2014.

ix. Motion to set aside the Registrar’s dismissal order and for a fifth extension refused by Doherty J.A. on March 14, 2014.

[5] Should leave be granted to extend the time within which the applicant can have Doherty J.A.’s dismissal decision reviewed by a panel of this court?

C. The Positions of the Parties

[6] The applicant submits that there was no reason for Doherty J.A. to have refused her leave to perfect the appeal when she attended before him on March 14, 2014. She explains that she had the appeal material with her to be served and filed, and the appeal could have been perfected that day, but she needed leave to do so and to have the Registrar’s dismissal order set aside. Her explanation for being unable to comply with the February 28, 2014 date set by Laskin J.A. was that, in order for the registrar to accept the Appeal Book and Compendium under rule 61.10(1)(j), she needed to file the certificate respecting evidence referred to in rule 61.05. But she could not, because one last transcript from the hearing on January 24, 2012, was not available in time.

[7] The respondent submits that the applicant should have been able to perfect the appeal in this court, because it had been perfected in the Divisional Court many months ago. The appellant explains that she wanted to pursue a “new angle” on the appeal, which was the added issue of the absence of informed consent to the assessment and treatment of the children by the experts who testified against her at trial; it had not been part of the Divisional Court appeal. That required more transcript evidence to be prepared, hence the added delay.

[8] The respondent points out that this litigation has been going on for more than four years, and pleads for relief:

This continuous litigation is exhausting and taking my energy and financial resources away from the children and I and it needs to stop or at least be ordered that further litigation be done through new applications for leave. I verily believe that granting any further extensions, further dismissals, or lenience to the appellant would only give the appellant another opportunity to repeat her behaviour. My family can no longer participate in supporting this kind of negative behaviour and harassment.

D. The Judgment under Appeal

[9] The core of the judgment is found in paras. 227-230 of the trial judge’s reasons:

I accept that the children suffer from disorganized attachment and that they do not feel safe. I accept that the mother's path of paranoia and course of conduct has and continues to adversely influence and affect the children and this continued behaviour will eventually lead to further behavioural problems. The plethora of serious, unsubstantiated and bald accusations of abuse by Ms. [G.] and her mother, coupled with the continual roadblocks to Mr. [F.]'s meaningful contact with his children has gone on for several years.

The evidence demonstrates that Ms. [G.] was not satisfied with the efforts and assistance of the therapists at the Willow Centre, the CAS in Halton and Peel, the Halton Regional Police, the Peel Regional Police, the SCAN unit, and various other doctors or health care practitioners. In Ms. [G.]'s opinion, no therapist, doctor or social service agency has ever truly answered her concerns about the children. I doubt that any agency or professional will ever be able to meet her expectations absent a total recommendation by someone to eliminate the father from the children's lives. Ms. [G.] refuses to acknowledge that she or her family may be the genesis or a part of the problem leading to the children's disorganized attachment issues.

I have considered the evidence and specifically noted the mother's conduct in court, her responses to questions, her testimony and her questioning of witnesses. In my view, her fixation on the children and her unwillingness to accept that her perceptions may be false, erroneous or worse, is clearly borne out and corroborated by the evidence, her questioning and her own demeanour.

Despite many complaints raised by Ms. [G.] over the years, no agency, police organization, CAS or health care professional has ever substantiated her allegations and no charges were ever laid. I find that these repeated and unsubstantiated allegations by Ms. [G.] have had an adverse impact on the children but have also tarnished Mr. [F.]'s reputation.

[10] The applicant has not retreated at all from the position she took at trial. She wants this position to be vindicated on appeal, and believes that this would be in the best interests of her children.

E. Analysis

[11] In my view, the test to apply to the applicant’s request for an extension of time should be the same as the test on a motion to set aside a Registrar’s order dismissing an appeal for delay, since such an order was at the root of the motion before Doherty J.A. That test was succinctly stated by Weiler J.A. in Paulsson v. Cooper, 2010 ONCA 21, [2010] O.J. No.123, at para. 2:

The factors a court should consider in deciding whether to grant this type of motion are well-known. They are: whether the applicant had an intention to appeal within the time for bringing an appeal; the length of the delay, and any explanation for the delay; any prejudice to the respondent caused by the delay; and the justice of the case. This last factor is most important and requires a consideration of the merits of the appeal.

[12] I decline to exercise my discretion and extend the time within which the applicant may move before a panel of this court to set aside the decision of Doherty J.A. I do so for two reasons, both of which fall under the last factor set out by Weiler J.A. in Paulsson. First, in my view, the appeal has little if any merit. Second, such an order would not be in the best interests of the children.

[13] I set out my reasoning for these conclusions below.

(1) Intention to Appeal, Explanation for Delay and Prejudice

[14] The problem here is not with the applicant’s intention, which I am satisfied has always been to appeal, but in her belated execution of that intention.

[15] The applicant explains that the delay attributable to the Divisional Court appeal resulted from faulty legal advice. She has explained the other delays in her motions before this court in ways that have satisfied my colleagues. I am satisfied with her explanation for failing to perfect by February 28, 2014 in compliance with the order of Laskin J.A. She advises that the faulty legal advice given to her was that she had 30 days within which to request that the order of Doherty J.A. be reviewed by a panel of judges under s. 7 of the Courts of Justice Act. Her explanations are plausible.

[16] Is any prejudice to the respondent caused by the delay? In my view, there is no prejudice in the traditional sense that the cases consider, such as the death of witnesses or the destruction of evidence. The respondent points to the numerous motions and attendances that he has been forced through since the trial ended. That is not, however, the kind of prejudice contemplated by the test. But the affected interests in a custody and access case cannot be entirely measured by the ordinary test. The delay is clearly prejudicial to the children and their best interests, as I explain below.

(2) The Justice of the Case

[17] I address this factor, first, as a matter of the merits of the appeal, and second, considering the best interests of the children.

i. The Merits of the Appeal

[18] As noted in Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014, at para 13:

Finality is a significant consideration in child custody cases, maybe more so than in support cases, and reinforces deference to the trial judge's decision… an appellate court may only intervene in the decision of a trial judge if he or she erred in law or made a material error in the appreciation of the facts.

[19] The applicant raises two substantive legal arguments. The first relates to the proper application of section 10 of the Health Care Consent Act, 1996, S.O. 1996, c. 2 Schedule A, which obliges a health care practitioner to obtain a person’s consent to treatment or the consent of a person’s substitute decision-maker, which, in the case of a child, is the custodial parent. She relies especially on s. 20(1)(5) of the Act, which gives “a parent who has only a right of access” no right to consent to a child’s assessment or treatment.

[20] The applicant asserts that the respondent was only an access parent from February 18, 2010 to February 3, 2012, when he admitted giving consent to the children’s therapy or treatment by the Willow Centre.

[21] Justice Hourigan’s order on February 18, 2010 gave the applicant interim custody of the children, but this element of his order was set aside on a without prejudice basis by Justice Coats on May 20, 2010. At that point both parents had custody and therefore rights to consent to treatment even though the children continue to reside with the applicant. I am unable to see any merit in the applicant’s “consent to treatment” argument.

[22] The applicant’s second legal argument is that the access conditions set by the trial judge are improper. This relates to para. 12 of the trial judge’s order, which provides:

Notwithstanding the aforementioned, Ms. [G.] may be permitted access to [X.] and [S.] if the medical professionals or therapists at the Willow Centre, or Dr. Goldstein deem it appropriate and beneficial for the children in the furtherance of the counselling or treatment of the children to engage in such supervised visits with their mother. This discretion for supervised access shall remain in the sole discretion of the aforementioned medical professionals or therapists and shall be undertaken under the supervision of a designated mental health care professional treating [X.] and [S.].

[23] The trial judge explained his reasoning, at para. 240:

As I see it, the professionals at the Willow Centre and Dr. Goldstein can continue to assist the father and the children. Regrettably, they cannot assist the mother as she has lost trust in these professionals. It is to the children's and their father's benefit to continue counselling and therapy. The father will have sole discretion to decide what is in the children's best interests as far as medical, educational or psychological treatment is concerned. All these terms are necessary to permit father to parent [X.] and [S.] in their best interests.

[24] The applicant argues, however, that this order falls afoul of the decision of this court in Strobridge v. Strobridge (1994), 1994 875 (ON CA), 18 O.R. (3d) 753, which was summarized by Justice S. Goodman in Children’s Aid Society of Toronto v. D.P., 2005 5878 (ON SC), at paras. 34-35:

In Strobridge v. Strobridge 1994 875 (ON CA), (1994), 18 O.R. (3d) 753, 72 O.A.C. 379, 115 D.L.R. (4th) 489, 4 R.F.L. (4th) 169, [1994] O.J. No. 1247, 1994 Cars­well­Ont 400 (Ont. C.A.), Appeals Justice Coulter Osborne specifically relied on a child protection decision when he stated as follows:

. . . I agree that [the application judge] erred in assigning to the London Custody Access Project the decision whether and under what circumstances access would be exercised. There is no statutory, or other, authority which would permit this delegation. Children’s Aid Society of Durham Region v. Catherine W. and Keith W., 1991 3973 (ON SC), [1991] W.D.F.L. 588, 4 O.F.L.R. 112, [1991] O.J. No. 552 (Ont. Gen. Div.), per Justice Gilbert L. Murdoch, upheld by this court at (1992), 1992 4096 (ON CA), 31 A.C.W.S. (3d) 1007, [1992] W.D.F.L. 481, 5 O.F.L.R. 125, [1992] O.J. No. 265 (Ont. C.A.).

In Strobridge v. Strobridge, counsel had agreed that the effect of the motion judge’s order (i.e., “reasonable access to the children but such access shall be exercised subject to the discretion of a member of the London Custody & Access Project”) was to leave the issue of access with the LCAP.

I also note that, subsequent to the Divisional Court decision of Christopher H. v. Durham Children’s Aid Society and Kathryn H., in MacDonald v. Magel 2003 18880 (ON CA), (2003), 67 O.R. (3d) 181, 176 O.A.C. 201, 231 D.L.R. (4th) 479, 43 R.F.L. (5th) 149, [2003] O.J. No. 3707, 2003 Cars­well­Ont 3606, the Court of Appeal again cited Strobridge v. Strobridge in support of its decision to set aside an order in which the court, after a lengthy trial, had continued a prior supervised access order and then left up to a properly qualified psychiatrist, with input from the children’s doctor, the decision when a mother’s supervised access would become unsupervised. Appeals Justice Marc Rosenberg stated, as follows, that the decision:

appears to leave decision making in the hands of third parties. There is no authority that would permit this type of delegation. See Strobridge . . .

[25] In his endorsement dated February 5, 2014, Laskin J.A. said that this “might be an arguable issue”. However, the merits of this argument must be evaluated in light of the custody and access orders that were made after the order with which the applicant takes issue. In paragraph 23 of the order, Justice Goodman remained seized of the matter and required the parties to return, on July 5, 2012, before a judge of the Superior Court to set a date for review. When Justice Goodman transferred out of the region, review responsibility fell to Regional Senior Justice Van Melle. Rosenberg J.A. summarized R.S.J. Van Melle’s orders in his endorsement dated December 9, 2013, at para. 5:

Since that time the case has been reviewed by Van Melle R.S.J. on September 10, 2012, February 1, 2013, and March 12, 2013. Despite Van Melle R.S.J. providing clear directions as to how the mother could commence access to the children, the mother has failed to take the necessary steps.

[26] In her endorsement dated March 12, 2013, R.S.J. Van Melle stated, at paras. 7-8:

If Ms. [G.] wishes to have her own “qualified person” present at access visits, she should put forward the name and qualifications of that person.

Ms. [G.] asked me who a qualified person would be. If she chooses not to consult a professional on the list in my September endorsement, she should find someone who is either a psychologist or a psychiatrist with child-related experience. After reviewing the information, I will decide whether or not the person is appropriate.

[27] The applicant does not trust Dr. Goldstein or staff of the Willow Centre. She fears that any access they supervise would result in more negative evidence directed at her. It seems to me, however, that the access arrangements established by Goodman J. were, for all intents and purposes, superseded by the order of R.S.J. Van Melle, who has firmly taken direct responsibility for the access arrangements. The questionable part of the judgment no longer has any currency. On this basis, I am unable to discern any real merit in the applicant’s second legal argument that the judgment as it relates to her access to her children is improper.

[28] It is clear to me, from the applicant’s submissions, that the thrust of her appeal is not about the legal issues she raises. Her real issue is about the respondent’s alleged sexual abuse of the children, and the failure of Dr. Goldstein and the assessment facility to substantiate her theory. The trial judge relied on Dr. Goldstein to a significant extent in reaching his conclusions.

[29] In her affidavit, the applicant states:

The children had displayed highly sexualized behaviour. The assessor admitted several times during trial that the children could have been sexually abused, amongst several names he mentioned, he admitted Mr. [F.] could have sexually abused the children.

She draws this conclusion from the following exchange in her cross-examination of Dr. Goldstein, in particular:

A. Correct, except that the assumption that I have about the delusions is not just about the husband. It is also the delusion the children had been victims to terrible physical [abuse], sexual abuse, physically.

Q. But, Sir, it’s possible that the children were victims of sexual abuse by the father?

A. You’ve established that a long time ago and that – I’ll hold that anything is possible.

[30] I do not read this as Dr. Goldstein’s admission of anything other than the mere possibility that the respondent abused the children. Dr. Goldstein, however, in the immediately preceding answer, clearly signalled his own view, when he referred to the applicant’s “delusions”.

[31] For the applicant to succeed on this ground of appeal, she must persuade this court that the trial judge made palpable and overriding errors of fact, misapprehended the evidence or was clearly wrong. This is a very high burden that the applicant is not likely to meet.

[32] I am unable to conclude that the appeal has any real merit.

ii. The Best Interests of the Children

[33] The court’s overriding concern in custody and access disputes is for the best interests of the children. I note that the Children’s Law Reform Act, R.S.O. 1990 c. C12, provides, in s. 19(a), that it is intended: “to ensure that applications to the courts in respect of custody of, incidents of custody of, access to and guardianship for children will be determined on the basis of the best interests of the children…” The Divorce Act, R.S.C. 1985 c. 3, likewise provides in s. 16(8): “[T]he court shall take into consideration only the best interests of the child…”

[34] The best interests of very young children are usually best served by stable custody and access arrangements, and the formation of strong relationships with both parents. The problem of uncertainty in custody and access arrangements was discussed in Van de Perre v. Edwards, at para 13, repeated here for convenience:

First, finality is not merely a social interest; rather, it is particularly important for the parties and children involved in custodial disputes. A child should not be unsure of his or her home for four years, as in this case. Finality is a significant consideration in child custody cases, maybe more so than in support cases, and reinforces deference to the trial judge's decision. Second, an appellate court may only intervene in the decision of a trial judge if he or she erred in law or made a material error in the appreciation of the facts. Custody and access decisions are inherently exercises in discretion. Case-by-case consideration of the unique circumstances of each child is the hallmark of the process. This discretion vested in the trial judge enables a balanced evaluation of the best interests of the child and permits courts to respond to the spectrum of factors which can both positively and negatively affect a child.

Bastarache J. cited in support Hickey v. Hickey, 1999 691 (SCC), [1999] 2 S.C.R. 518, at paras. 10 and 12, and Gordon v. Goertz, 1996 191 (SCC), [1996] 2 S.C.R. 27.

[35] Like my judicial colleagues before me, I have grave concerns about the applicant’s refusal to make arrangements for access to her children. She explains her reasons for doing so. First, she asserts that she would be seen as submitting to the trial judge’s access order, the legitimacy of which she utterly disputes. I do not find this reason compelling since the access conditions are now totally in the control of R.S.J. Van Melle.

[36] Second, she is afraid that the access visits would become an engine by which the respondent could amass adverse evidence about her parenting abilities. That too is something that can be addressed by R.S.J. Van Melle.

[37] Third, she believes that the best interests of her children required her to dedicate all of her attention to the success of this appeal, leaving none for access visits. This appeal, in my view, should not continue to be an obstacle in the way of normal access visits by the applicant. There is no reason to expect that she would change her behaviour until the appeal is resolved.

[38] In this case there has been a two-year delay in settling the custody and access arrangements for two young children, who are now 5 and 7 years old and who have not seen their mother during that time. The delay will only continue if leave is granted. If the panel sets aside the order of Doherty J.A., the appeal will still be further off. Even if the appeal is allowed, the appeal panel would not likely alter what will by then be longstanding arrangements without more evidence, and would be inclined to return the issue to the Superior Court for new evidence.

[39] In short, from every angle, the applicant’s best approach is to go back to R.S.J. Van Melle and work out access arrangements. She would also be free to bring an application to change. There is no point in permitting this appeal to continue and I refuse to do so.

F. Conclusions

[40] For these reasons, the applicant’s motion for an extension of time to pursue a motion before a panel of this court to set aside the order of Doherty J.A. made on March 14, 2014 is dismissed. The respondent’s cross-motion for an order that the applicant get leave of the court before pursuing any further proceedings is dismissed. The applicant is free to pursue access arrangements pursuant to the orders of R.S.J. Van Melle.

“P. Lauwers J.A.”