Court of Appeal for Ontario
CITATION: Chitsabesan v. Yuhendran, 2016 ONCA 105
DATE: 20160205
DOCKET: C59537
Juriansz, Hourigan and Brown JJ.A.
BETWEEN
Janani Nicola Chitsabesan
Applicant (Respondent)
and
Ajanthan Yuhendran
Respondent (Appellant)
Steven M. Bookman, Gillian H. Bookman and Jasmine Jadubir, for the appellant
Michael G. Weissenborn, for the respondent
Heard: January 7, 2016
On appeal from the order of Justice Craig Perkins of the Superior Court of Justice, dated September 18, 2014, with reasons reported at 2014 ONSC 5395.
By the Court:
Overview
[1] This is the appellant father’s second appeal in this family law case. He first appealed to the Superior Court from the judgment made after trial in the Ontario Court of Justice that awarded custody of a three year old child to the respondent mother, allowed the application of the mother to relocate from Ontario to England, and prescribed access.
[2] The first appeal judge affirmed the trial judge’s decision on custody, relocation and access but remitted the final order to the trial judge “to correct any errors or inconsistencies in its wording and to adjudicate on any particular matters that were not dealt with as completely as the judge desires in her reasons for decision or in the order itself.” He added “The trial judge may determine whether to admit oral evidence or affidavit evidence on these matters and whether to receive oral submissions or only written submissions.”
Standard of Review
[3] At the outset it is important to note the narrow scope of appellate review. A high level of deference ordinarily due to a trial judge in family law matters intensifies on a second appeal. It is useful to keep in mind what the Supreme Court of Canada said in Hickey v. Hickey, 1999 CanLII 691 (SCC), [1999] 2 S.C.R. 518, at para. 12:
There are strong reasons for the significant deference that must be given to trial judges in relation to support orders. This standard of appellate review recognizes that the discretion involved in making a support order is best exercised by the judge who has heard the parties directly. It avoids giving parties an incentive to appeal judgments and incur added expenses in the hope that the appeal court will have a different appreciation of the relevant factors and evidence. This approach promotes finality in family law litigation and recognizes the importance of the appreciation of the facts by the trial judge. Though an appeal court must intervene when there is a material error, a serious misapprehension of the evidence, or an error in law, it is not entitled to overturn a support order simply because it would have made a different decision or balanced the factors differently.
[4] The Supreme Court said these remarks were equally applicable to orders concerning child custody: Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014, at para. 11. In Van de Perre, the Supreme Court stressed once again that “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” (para. 13). The court also remarked that custody and access decisions are inherently exercises in discretion, and emphasized that that discretion is vested in the trial judge.
[5] In short, the Supreme Court has made clear that it is not the function of an appellate court to impose the decision it would have made itself by engaging in a fresh analysis or by balancing the factors differently. This court can intervene in the decision below only if the judge erred in law or made a material error in the appreciation of the facts. This deferential approach is intensified on a second appeal such as in a case like this one.
First Issue: The Decision on Custody and Access
[6] The appellant recognizes that the trial judge set out the correct legal framework but submits she made findings of fact in the complete absence of evidence, misapprehended evidence and speculated about matters not in the evidence. The appellant also submits the trial judge failed to give the maximum contact principle sufficient weight by allowing the respondent to relocate to England with the child.
[7] The appeal judge properly reviewed the trial judge’s decision and reasons. The only questions before him were whether there was an error in law or a palpable and overriding error of fact that affected the outcome. As stated, the trial judge proceeded upon the proper legal framework and in our view the factual findings about which the appellant complains were permissible inferences from the evidence. It was for the trial judge to determine how the maximum contact principle would be weighed in the circumstances of the case. There is no basis to interfere with the appeal judge’s upholding the trial judge’s decisions about custody and relocation.
Second Issue: The Jurisdiction of the Appeal Judge to Remit the Matter to the Trial Judge
[8] However, having upheld the trial judge, the appeal judge remitted the matter back to the trial judge for a further hearing. With respect, the appeal judge had no jurisdiction to do so.
[9] Following the release of the trial reasons, the parties were unable to agree upon the form and content of the final order. As described by the appeal judge, at para. 7 of his reasons:
The final order resulting from the November 13, 2013 decision was signed on March 5, 2014 by the trial judge herself, after receiving drafts from both parties. In an endorsement of March 6, 2014, she said,
I have signed the “Appendix A Order” as filed by the applicant as it most closely resembles my decision as written.
I do agree, however, with the respondent that the draft order provided by his counsel is an improvement of my order and several items may have been easily reached by agreement. Having not been agreed upon, I cannot sign that version.
[10] Based on the trial judge’s characterization of the appellant’s form of draft order as “an improvement of my order,” the appeal judge concluded that the trial judge had erred in failing “to determine whether any issue needs to be reheard, or whether supplementary submissions are needed to deal with the proposed corrections, alterations, or additional terms”: para. 28. The appeal judge also observed that a judge who is not functus officio can modify her decision, and r. 25(19)(c) of the Family Law Rules authorizes a judge to change, on motion, an order that “needs to be changed to deal with a matter that was before the court but that it did not decide.” This led the appeal judge to remit to the trial judge her order of November 13, 2013 “to correct any errors or inconsistencies in its wording and to adjudicate on any particular matters that were not dealt with as completely as the judge desires in her reasons for decision or in the order itself.”
[11] With respect, the appeal judge erred in remitting the matter to the trial judge, for two reasons. First, the process to settle an order has a narrow purpose: “to ensure that the formal order accurately sets out the intention of the court as reflected in the endorsement or reasons for decision”: Paul Perell and John Morden, The Law of Civil Procedure in Ontario, 2nd ed. (Toronto: LexisNexis, 2014), at para. 11.29. The process of settling an order is not an opportunity for either party to re-argue issues already decided in an effort to change the result set out in the judge’s reasons. Although a judge is not functus officio where the order has not been signed and entered and therefore retains jurisdiction over a matter, the instances in which it might be in the interests of justice to withdraw reasons of the court and rehear the case on the merits will be “rare”: Pastore v. Aviva Canada Inc., 2012 ONCA 887, 300 O.A.C. 355, at para. 9.
[12] This is not one of those rare cases. The trial judge gave lengthy and comprehensive reasons to explain how she reached her decision on the issues of custody and access. As well, her reasons set out, in detail, the content of the final order on those issues. After reviewing the draft final orders submitted by the parties, the trial judge concluded that she would sign the draft submitted by the “applicant as it most closely resembles my decision as written.” In proceeding in that fashion, the trial judge did not commit any error. On the contrary, she properly followed the process under r. 25 of the Family Law Rules to settle her order.
[13] Second, to the extent the appeal judge relied on r. 25(19)(c) as the basis for remitting the issues of custody and access back to the trial judge, he erred in so doing. Rule 25(19)(c) only permits a court to change an order that “needs to be changed to deal with a matter that was before the court but that it did not decide…” In the present case, the appeal judge found that the trial judge had properly evaluated the law, made findings of fact and conclusions reasonably supported by the evidence, and came up with the best available overall conclusion on the issues of custody and access: para. 23. Because the trial judge had dealt with all the matters relating to custody and access placed before her for adjudication, r. 25(19)(c) had no application in the circumstances of this case.
[14] The respondent submits that paragraph 13 of the trial judge’s November 13, 2013 order entitled the appeal judge to remit the matter back because it stated that “[a]ny necessary variations or enforcement court proceedings shall be in this court”. That provision only applies to variation proceedings subsequent to the making of the final order, not to the type of rehearing of the original final order contemplated by the appeal judge’s remittance of the matter to the trial judge.
[15] In sum, the appeal judge erred in concluding that, in the circumstances, he had the jurisdiction to remit to the trial judge her order of November 13, 2013. From that it follows that the trial judge’s subsequent custody and access order dated May 6, 2015 is of no force or effect, and her November 13, 2013 order remains in place.
Disposition
[16] For these reasons, the appeal is allowed in part, the order of May 6, 2015 is set aside, and the order of November 13, 2013 is restored.
[17] The parties agreed that the successful party on appeal should be awarded $10,000 in costs. However, there has been mixed success on this appeal. Although the appellant succeeded on the issue of the jurisdiction of the appeal judge to remit the issues of custody and access back to the trial judge, the appellant did not succeed in altering the basic terms of custody or access originally set by the trial judge. Accordingly, there will be no order as to the costs of this appeal.
Released: February 5, 2016 (RGJ)
“R.G. Juriansz J.A.”
“C.W. Hourigan J.A.”
“David Brown J.A.”