COURT OF APPEAL FOR ONTARIO
CITATION: D.G. v. A.F., 2015 ONCA 290
DATE: 20150429
DOCKET: C59175
Laskin, Lauwers and Hourigan JJ.A.
BETWEEN
D.G.
Respondent (Appellant)
and
A.F.
Applicant (Respondent)
D.G., acting in person
A.F., acting in person
Heard: April 10, 2015
On appeal from the order of Justice Francine E. Van Melle of the Superior Court of Justice, dated July 11, 2014, with reasons reported at 2014 ONSC 4193.
Lauwers J.A.:
[1] In the final order under appeal, the motion judge set the appellant’s child support obligation and her contribution to the children’s day care expenses. She also permitted the respondent to move with the children from Halton to Hamilton and ordered the appellant to pay trial costs.
Background
[2] The background to this high-conflict family matter is set out in the motion judge’s reasons and in the trial judge’s reasons, reported at 2012 ONSC 764. The motion judge’s task was to complete the review of the case ordered by the trial judge, and to deal with trial costs.
[3] The major dispute between the parties throughout concerns custody of and access to their children. At every opportunity, including this appeal, the appellant has earnestly sought to have reversed the trial judge’s award of custody to the respondent and supervised access to the appellant. In her factum, the appellant raises concerns with the trial decision, showing that she does not accept the trial outcome despite the dismissal of her appeal. She seeks custody of the children, which is not a remedy that is open to her on this appeal; she has been unwilling to work within the custody and access regime that resulted from the trial.
[4] In the decision under appeal, the motion judge noted, at para. 4:
I have told [D.G.] on numerous occasions that it is up to her to provide names and resumes for proposed access supervisor. I have described to her the qualifications for an access supervisor. I have suggested names to her.
[5] As the motion judge explained, at para. 5:
Each time this matter is before me I have indicated to [D.G] that I would like nothing better than to get her access started. She, however, seems completely unable to comply with the conditions that I have set out.
The motion judge added, at para. 15:
[N]o matter how [D.G.] feels about the custody and access orders in this proceeding she must comply with my Orders so that she can see her children. [A.F.] wants her to see the children. He understands that it is important for the children to have a relationship with their mother. So much so that he has put forward his own suggestions for an access supervisor.
[6] The motion judge observed that respondent’s efforts at identifying an access supervisor who would be acceptable to the appellant have not been successful, noting, at para. 3,
[A]ny name put forward by him will be viewed with suspicion by [D.G.]. Indeed, despite the fact that [D.G.] is not seeing the children as a result of her own failure to propose an adequate supervisor she states, yet again, that [A.F.] is withholding the children from her.
[7] This appeal, simply said, and most unfortunately, has postponed the appellant’s compliance and prolonged the time during which her children have not had access to her.
Analysis
(1) Did the motion judge improperly seize herself of the matter?
[8] The appellant’s main complaint in this appeal is that the motion judge chose to remain seized of this matter because the trial judge, who had seized himself, has been transferred from the jurisdiction. The motion judge took this role on when she was Regional Senior Justice and has retained jurisdiction since stepping down from that position.
[9] The appellant seeks to escape the motion judge’s “influence”. She argues that the motion judge had no basis for seizing herself of the case indefinitely. The appellant argues that this effectively puts the motion judge in a conflicting position because any motions to change will inevitably involve the motion judge in reviewing her own decisions. The appellant fears that the motion judge will not treat her fairly.
[10] I would reject this ground of appeal.
[11] Active case management is one of the underlying philosophies of the Family Law Rules, O. Reg. 114/99. Rule 2(5) places an obligation on courts to actively manage cases in order to promote just resolutions. Active case management is defined in the Rules as including the early identification of issues in a case, setting timetables or otherwise controlling the process of the case.
[12] Rule 39(9) lists the functions of a case management judge, who is required to supervise the progress of the case, to conduct conferences and to hear motions. Rule 39(9) is seen as the gold standard of case management, but it only applies to cases in unified Family Court jurisdictions. Since this case was not decided at a unified Family Court site, the more sparse case management provisions of r. 41 apply. This rule does not explicitly list the functions of a case management judge. This distinction in the Rules reflects the fact that unified sites historically had more judicial resources and therefore could provide more active case management.
[13] However, nothing in the Family Law Rules precludes a judge from using her inherent jurisdiction, and the obligation to actively case manage under r. 2(5), to seize herself of a case. This is the best means of promoting the objectives of the Rules and ensuring that cases are dealt with justly as required by r. 2(3).
[14] In Norman v. Connors, 2010 ONSC 1975, [2010] O.J. No. 1564, at para. 34, Gordon J. noted that in non-unified Superior Court sites, litigants are sometimes denied the benefit of active case management as described in r. 39. Despite the lack of resources, he stated that the court must step in and impose case management, by relying on the general provisions of the Rules and the court’s inherent jurisdiction. This is particularly so in high conflict cases.
[15] I would agree with this approach to case management. It permits reasonably quick access to justice before a judge who is familiar with the relevant facts and with the parties. It is proportionate, within the meaning of r. 2(3), since the frequent resort to the court in high-conflict cases would otherwise rapidly consume too many judicial resources, as judge after judge is forced to learn the details of an ever-burgeoning file.
(2) Does the Supreme Court’s decision in Doucet-Boudreau v. Nova Scotia have application?
[16] The appellant makes an allied argument that once the motion judge completed the tasks left by the trial judge in his decision, she was functus officio and could no longer exercise jurisdiction. For this proposition, she cites Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3. In my view, for the reasons that follow, Doucet-Boudreau has virtually no application to this appeal.
[17] Doucet-Boudreau was a case about minority language education rights in Nova Scotia under s. 23 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, and particularly, the remedial jurisdiction of a trial judge under s. 24(1). The issue before the Supreme Court was set out at para.12:
The main issue in the appeal is simply this: having found a violation of s. 23 of the Charter and having ordered that the Province make its best efforts to provide homogeneous French-language facilities and programs by particular dates, did the Nova Scotia Supreme Court have the authority to retain jurisdiction to hear reports from the Province on the status of those efforts as part of its remedy under s. 24(1) of the Charter?
[18] The majority concluded that the trial judge had not violated the doctrine of functus officio by retaining jurisdiction to hear reports over the Province’s progress in remedying the Charter violation that he had found.
[19] The appellant cites para. 79 of the majority decision, where the Court explains the basis of the doctrine of functus officio:
It is clear that the principle of functus officio exists to allow finality of judgments from courts which are subject to appeal (see also Reekie v. Messervey, 1990 158 (SCC), [1990] 1 S.C.R. 219, at pp. 222-23). This makes sense: if a court could continually hear applications to vary its decisions, it would assume the function of an appellate court and deny litigants a stable base from which to launch an appeal. Applying that aspect of the functus doctrine to s. 23(1), we face the question of whether the ordering of progress reports denied the respondents a stable basis from which to appeal.
[20] The appellant also cites para.105 from the dissent:
A court purporting to retain jurisdiction to oversee the implementation of a remedy, after a final order has been issued, will likely be acting inappropriately on two levels. First, by attempting to extend the court's jurisdiction beyond its proper role, it will breach the separation of powers principle. Second, by acting after exhausting its jurisdiction, it will breach the functus officio doctrine.
[21] The reasoning in Doucet-Boudreau has only limited application to this appeal, for the following reasons.
[22] First, the court must exercise great caution before migrating concepts from constitutional cases to other areas of the law. For example, the separation of powers principle was engaged in Doucet-Boudreau, and formed the basis of the minority’s position that implementation of the Charter remedy was the exclusive responsibility of the provincial government. No similar concept applies in this family law case.
[23] Second, the majority in Doucet-Boudreau found, at para. 80, that the requirement for the Province to report back to the trial judge did not engage the functus officio doctrine since it “did nothing to undermine the provision of a stable basis for launching an appeal.” That is also true in this case. Any successful motion to vary would result in a final order that would be appealable, just like the appellant’s appeal of the motion judge’s decision.
[24] Third, the majority found, at para. 81, that the functus officio doctrine yields to the rules of civil procedure insofar as they allow courts “to vary or add to their orders so as to carry them into operation or even to provide other or further relief than originally granted”.
[25] This fits comfortably with the concept of motions to change in family cases. Family law orders sometimes need to be varied, rescinded or altered based on changing circumstances. The Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), the Federal Child Support Guidelines, S.O.R./97-175, and the Family Law Rules all expressly contemplate that final orders will, on occasion, need to be altered. In this case, the respondent followed the procedure set out in the Family Law Rules, by bringing a motion to change. In such circumstances, the doctrine of functus officio is not violated.
[26] Finally, the appellant expresses concern about the motion judge’s possible partiality to the respondent. Actual bias is an independent basis for challenging a decision that is not affected by the functus officio doctrine. There is no evidence in this case that the motion judge was partial to the respondent. The motion judge’s concern for all the parties including the appellant and the children is manifest in the language that she uses in her endorsements. The fact that she ruled against the appellant does not establish partiality.
[27] To conclude, the Supreme Court’s reasoning in Doucet-Boudreau does not affect this appeal.
(3) Did the trial judge wrongly award trial costs to the respondent?
[28] The appellant argues that the motion judge wrongly awarded the trial costs to the respondent. She states she was not given an opportunity to argue the issue of costs, but would have argued that r. 57.01(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, applied such that she was entitled to costs despite being the unsuccessful party. Further, she would have argued that the respondent wrongly gave consent for the children’s therapy, an issue that loomed at trial, which she submits is a relevant consideration under r. 57.01(1)(d) and (g), militating against awarding costs to the respondent.
[29] The issue of costs was live before the motion judge; the appellant should have been prepared to argue it, but was not.
[30] The respondent states that he provided evidence of the legal expenses that he incurred to the motion judge along with offers to settle. He was seeking about $90,000 and was awarded $80,000.
[31] It is quite evident that the motion judge made the costs award based on the respondent’s success at trial, and her review of the material, which implicitly addressed the r. 57 factors. There is, on this record, no basis for the argument that the appellant was entitled to costs as an unsuccessful party. Having ordered the award she did, the motion judge was not prepared to require each party to bear its own costs. Therefore, this ground of appeal also fails.
Disposition
[32] I encourage the appellant to comply with the access orders and to make the required arrangements as soon as possible so that, with successful experience, more normal access arrangements could be justified. There is no short cut available to the appellant.
[33] The appeal is dismissed. If either party wishes to seek the costs of this appeal, written submissions of no more than five pages in length may be served and filed within 10 days of the date of this decision.
Released: April 29, 2015 “PL”
“P. Lauwers J.A.”
“I agree John Laskin J.A.”
“I agree C.W. Hourigan J.A.”