Court of Appeal for Ontario

Date: June 21, 2019

Docket: C65513 & C66285/M50431

Judges: Brown, Roberts and Miller JJ.A.

Parties

C65513

Between

• Brittany Beaver, Applicant (Respondent)

and

• Kenneth Hill, Respondent (Appellant)

C66285/M50431

And Between

• Kenneth Hill, Applicant (Appellant/Responding Party)

and

• Brittany Beaver, Respondent (Respondent/Moving Party)

Counsel

• Michael S. Rankin and Andrew K. Lokan, for the appellant, C65513
• Melvyn L. Solmon, Malliha Wilson and Gathya Manoharan, for the appellant, C66285, for the responding party, M50431
• Harold Niman, Martha McCarthy, and Scott Byers, for the respondent, C65513 & C66285, for the moving party, M50431

Heard: June 6, 2019

On appeal from: The order of Justice James W. Sloan of the Superior Court of Justice, dated May 24, 2018; and on appeal from the judgment of Justice Alex Pazaratz of the Superior Court of Justice, dated November 28, 2018, with reasons reported at 2018 ONSC 7138, 144 O.R. (3d) 46.

BROWN J.A.

I. OVERVIEW

[1] In late 2015, Brittany Beaver commenced an application against Kenneth Hill, pursuant to the Family Law Rules, seeking relief under the Family Law Act, R.S.O. 1990, c. F.3, and Children's Law Reform Act, R.S.O. 1990, c. C.12 (the "FLA Proceeding"). Ms. Beaver and Mr. Hill are the parents of one child, B., who is almost 10 years old.

[2] Three matters are before this court: two appeals from orders made in or in respect of the FLA Proceeding and a motion to quash one of those appeals.

[3] The history of this litigation has been described in decisions of this court and the Superior Court of Justice: 2018 ONCA 816, 428 D.L.R. (4th) 288; 2017 ONSC 7245; 2018 ONSC 7138, 144 O.R. (3d) 46. It need not be repeated.

[4] In its October 12, 2018 reasons, this court, at para. 78, described the procedural history of this matter and issued the following caution and direction:

This case has developed into a procedural morass, to which both sides have contributed. A phalanx of lawyers appeared before us. The parties have made no effort to save expense or time as required by ss. 2(3) of the Family Law Rules: Titova v. Titov, 2012 ONCA 864, 299 O.A.C. 215, at para. 54. Their tactics have led to a proliferation of materials, skirmishes and arguments that the Rules seek to avoid. This must not be permitted to continue.

[5] Last August, Pazaratz J. was designated as the case management judge for the FLA Proceeding. In his November 27, 2018 Settlement Conference endorsement, he made two comments, neither of which disclosed the content of the settlement discussions, but both of which described the conduct of the parties in this litigation. He wrote:

I am led to conclude that cumulatively there is little indication of good faith efforts being made by anyone.

I have no control over what happens with respect to appeals, but I would ask that any judges hearing any pending appeals be mindful of the absolute frustration being experienced at this level. These parties just want to litigate, and as a judicial system we need to be delivering a consistent message that we're not going to tolerate or facilitate such a wasteful and destructive approach to important and sensitive family law issues.

[6] On January 16, 2019, at the conclusion of a third full day of conferencing, Pazaratz J. wrote:

At the end of three long days in October, November and now today, I have advised counsel that I am of the view that there is no demonstrated desire or intention to resolve any issues or even narrow the issues.

[7] Given those comments by the case management judge, it is evident that the parties have not listened to this court's caution nor followed its direction. That is the background to the three matters argued before this court on June 6, 2019.

II. APPEAL C66285

Motion to Quash

[8] Sloan J. made several endorsements and orders in the FLA Proceeding.

[9] On July 27, 2018, Mr. Hill issued a notice of application against Ms. Beaver pursuant to rule 14.05(3)(h) of the Rules of Civil Procedure, which authorize commencing a proceeding by bringing an application "in respect of any matter where it is unlikely that there will be any material facts in dispute requiring a trial" (the "Rule 14 Application"). In that civil application, Mr. Hill sought the following relief: "Judgment that the Honourable Mr. Justice Sloan recuse himself from presiding over any further matters in relation to" the FLA Proceeding (emphasis added).

[10] At a November 27, 2018 case/settlement conference, Pazaratz J. was asked by Mr. Hill's counsel to schedule a hearing for the civil recusal application. Pazaratz J. heard extensive submissions from both parties concerning the request. On November 28, 2018 Pazaratz J. granted judgment as follows: "THIS COURT ORDERS THAT the Application is dismissed, without prejudice to it being returnable in the event that the Honourable Mr. Justice Sloan is assigned to a future event on this file."

[11] Mr. Hill appeals that judgment. Ms. Beaver moves to quash his appeal, taking the position that the judgment is an interlocutory order, an appeal from which requires leave of the Divisional Court.

[12] At the hearing, the panel advised the parties that we would hear the appeal. These are the reasons for doing so, as well as the disposition of Mr. Hill's request for appellate review of the order of Pazaratz J.

[13] Generally speaking, a judgment dismissing a r. 14.05(3) application under the Rules of Civil Procedure is a "final order" for the purpose of determining the route of appeal: Buck Bros. Limited v. Frontenac Builders Ltd. (1994), 19 O.R. (3d) 97 (C.A.), at pp. 101-104. However, the FLA Proceeding between Ms. Beaver and Mr. Hill in which Sloan J. made his endorsements and orders is a proceeding under the Family Law Act and Children's Law Reform Act. The Family Law Rules – which are intended to be a complete procedural code – apply to such a proceeding: Family Law Rules, r. 1(2); Gray v. Gray, 2017 ONCA 100, 137 O.R. (3d) 65, at para. 30. The only "application" recognized by the Family Law Rules is the one that commences a proceeding. Once a proceeding is commenced under the Family Law Rules, any request for pre-trial relief, including the recusal of a judge from hearing a step in the proceeding, must be brought before the court by way of a motion in accordance with the Family Law Rules: rr. 2(1) and 14(1)2.

[14] In the present case, Mr. Hill chose the wrong procedure to bring his recusal request before the court: he commenced a r. 14 civil rules application when he should have brought a motion within the FLA Proceeding using the Family Law Rules. An incorrect procedural choice does not render his application a nullity: Family Law Rules, r. 1(8.1); Rules of Civil Procedure, r. 2.01. That said, the characterization of an order under appeal that is the product of an incorrect procedural choice must be determined by looking at the substantive effect of the order. In the present case, the judgment of Pazaratz J. dismissing Mr. Hill's recusal request on a without prejudice basis clearly is interlocutory in nature. It does not result in the final determination of any legal or litigation right of Mr. Hill – he may renew his motion in the event Sloan J. is assigned to hear a matter in the FLA Proceeding.

[15] The appeal of an interlocutory order of a judge of the Superior Court of Justice lies to the Divisional Court, with leave: Courts of Justice Act, R.S.O. 1990, c. C.43, s. 19(1)(b). Given the procedural morass permeating this case and the need to move it along to a final adjudication on the merits, this panel secured designation as a panel of the Divisional Court to hear Mr. Hill's request for appellate review and granted leave to appeal: CJA, s. 18(2). The panel so advised the parties at the hearing.

[16] However, I would dismiss the appeal. Pazaratz J. was correct in the order he made. Mr. Hill's appeal is without merit.

[17] Pazaratz J. accurately described Mr. Hill's application as one "seeking a court order that [Sloan J.] not do something he isn't going to do anyway" (emphasis in original): at para. 12. As the case management judge correctly stated, if the motion was to proceed, it would obviously have to be decided by Sloan J.: at para. 10. In his capacity as case management judge, Pazaratz J. refused to schedule the application. He quite properly stated, at paras. 30 and 31:

Courts exist to resolve real disputes between parties. Not to provide opinions in response to hypothetical or academic problems. And certainly not to encourage or facilitate convoluted litigation strategies.

If the reality is that Justice Sloan would not be assigned to future events on this file anyway, then a motion seeking his recusal is not only premature – it's pointless and purely hypothetical.

[18] Pazaratz J. then made the common sense proposal to Mr. Hill's counsel to adjourn the recusal request indefinitely and only bring it back on if there were a suggestion that Sloan J. would be assigned to hear or deal with a step in the case. Surprisingly, that common sense proposal was rejected. Pazaratz J. thereupon dismissed the application, without prejudice to Mr. Hill bringing a motion – the proper procedure – back on in the event that Sloan J. is assigned to this proceeding.

[19] That disposition of the application/motion was open to Pazaratz J. in his capacity as the case management judge. The disposition accorded with and promoted the objectives of the Family Law Rules as stated in rr. 2(2) and 2(3). It also furthered the direction of this court in its October 12, 2018 reasons that "[t]he case going forward requires active and determined case management." I see no error by Pazaratz J. In fact, I completely agree with the common sense disposition he made by, in effect, deferring the issue of whether Sloan J. could hear any future matters until such time as Sloan J. was assigned to do so. That was a proper direction for the case management judge to make with respect "to any intended motion": Family Law Rules, r. 17(4)(i).

[20] I would also observe that the expansive case management powers possessed by judges under r. 2 of the Family Law Rules include the duty to promote active management of cases by "considering whether the likely benefits of taking a step justify the cost." As I read the reasons of Pazaratz J., that is precisely what he did in dismissing Mr. Hill's recusal request on a without prejudice basis.

[21] I make one final comment. Mr. Hill submits that, notwithstanding the singular relief sought in his notice of application, the purpose of his recusal application actually was two-fold: (i) to determine whether Sloan J. should recuse himself from hearing any future matter; and (ii) to determine whether Mr. Hill is entitled to set aside all prior orders made by Sloan J. As Pazaratz J. quite correctly stated, if any party disagreed with the merits of an order made by Sloan J., it was open to that party to appeal the order or move to set it aside, in accordance with the process and timeframes set out in the Rules of Civil Procedure and the Family Law Rules. That is precisely what Mr. Hill did in respect of the May 28, 2018 order of Sloan J. fixing interim child support and s. 7 expenses. The Divisional Court dismissed his application for leave to appeal by order dated February 15, 2019.

Disposition

[22] For these reasons, leave to appeal from the order of Pazaratz J. made November 28, 2018 having previously been granted to Mr. Hill by the panel, sitting as the Divisional Court, I would dismiss the appeal.

[23] Ms. Beaver is entitled to her costs of this matter on a partial indemnity basis, which I would fix in the amount of $22,000, including disbursements and applicable taxes, payable within 5 business days of this order.

III. APPEAL C65513

Overview

[24] The other appeal concerns the order of Sloan J. dated May 24, 2018, in which he dismissed the part of a motion by Mr. Hill that sought leave to amend his Answer and Claim to seek custody of their child, B. Specifically, Mr. Hill sought leave to amend to request an order that B. "reside" with Mr. Hill "as follows: a) primarily with [Mr. Hill]; or in the alternative, b) equally with [Ms. Beaver and Mr. Hill]; or in the alternative, c) with [Ms. Beaver] and [Mr. Hill] shall have access with [B.] as may be agreed upon by the parties."

[25] In his reasons, Sloan J. observed, based on the evidence before him that: B. has been in the custody and care of Ms. Beaver "the vast majority of the time since he was born"; Mr. Hill saw B. infrequently; Mr. Hill initially had questioned his paternity of the child; and, Mr. Hill's counsel had represented to this court in March 2018 that custody was not an issue. Sloan J. stated in his endorsement:

Under all the circumstances of this case [Mr. Hill's] actions speak louder than words. I can come to no other conclusion on the material before me that the proposed claim for custody amendment is meant to intimidate the applicant and for the respondent to get more leverage than he already has over the financial issues.

Further, to the extent I can on the material filed, I find it would not be in the best interest of [B.] to be caught in the middle of what I believe to be a manufactured custody battle.

[26] Sloan J. dismissed Mr. Hill's motion for leave to amend his Answer and Claim dated February 4, 2016 to seek custody of the child, B. However, on consent, Sloan J. ordered that Mr. Hill "shall not be precluded from seeking further amendments to his Answer and Claim, provided that he meets the criteria for doing so as set out in the Rules and relevant case law."

[27] Mr. Hill appeals and asks this court to grant him leave to amend his Answer and Claim to seek custody of B. However, at the hearing, counsel for Mr. Hill clarified that his client was not seeking the approval of this court for any particular form of an amended Claim.

Analysis

[28] At the hearing of the appeal, counsel was asked whether this appeal had been overtaken by events that occurred after Sloan J. made his May 24, 2018 order. The question was asked of counsel because of the following sequence of events.

[29] On February 4, 2016 Mr. Hill delivered his initial Answer and Claim. In that pleading, Mr. Hill agreed with Ms. Beaver's claim for a final order granting her sole custody of B., with primary residence to be with her.

[30] That was followed by Mr. Hill's delivery on June 8, 2016 of a Fresh as Amended Answer and Claim. Again, in his Answer, Mr. Hill agreed with Ms. Beaver's claim for a final order granting her sole custody of B., with primary residence to be with her. Notwithstanding that admission, in his Claim Mr. Hill sought custody of B.

[31] In para. 4 of her December 8, 2017 order, Chappel J. struck out Mr. Hill's June 8, 2016 Fresh Answer and Claim, without leave to amend: 2018 ONSC 7245, at paras. 128 and 157. On March 26, 2018, Roberts J.A. stayed that part of Chappel J.'s order. In her reasons, Roberts J.A. noted that Mr. Hill "does not take issue with the son remaining in the custody of" Ms. Beaver: at para. 4.

[32] Sloan J. then made his order dismissing Mr. Hill's motion for leave to amend, which is the subject-matter of this appeal.

[33] Next, by order dated June 11, 2018 made on a 14B motion, Sloan J. granted sole custody of B. to Ms. Beaver. Mr. Hill has not appealed that order. However, on June 18, 2018 he did file a rule 14B motion to set the order aside.

[34] On August 9, 2018, Mr. Hill moved before this court for leave to amend his Answer and Claim. The draft amended Answer and Claim filed with this court included a claim for access to B. but no claim for custody. Nordheimer J.A. heard the motion and dismissed it. He endorsed the record: "If the appellant is successful in getting the right to seek to amend his Answer and Claim the formal motion to amend will properly [be] dealt with in the SCJ."

[35] On August 29, 2018 Pazaratz J. was appointed case management judge.

[36] On September 11, 2018 the parties argued Mr. Hill's appeal to this court from the order of Chappel J. By order dated October 12, 2018, this court allowed the appeal, in part, set aside para. 4 of the order of Chappel J., "which dismissed the constitutional claim," and substituted the following: "The Respondent's Amended Answer and Claim dated June 8, 2016 is struck, with leave to amend."

[37] During the hearing of the appeal on September 11, 2018 Mr. Hill's counsel handed up to the court a draft of his client's proposed Amended Answer and Claim. In the Answer part of the document, Mr. Hill did not agree with Ms. Beaver's claim for sole custody. However, in the Claim portion, Mr. Hill indicated that he was not making any claim for custody of B. but was making a claim for access to B.

[38] The endorsement made by Pazaratz J. at the October 17, 2018 case conference records, as Item 5: "Without prejudice to the disposition of the request to file an amended Answer, [Mr. Hill] shall serve the Applicant's counsel with a final version (final dealing with all issues) of the Amended Answer he seeks to file, no later than November 13, 2018."

[39] Counsel provided the panel with a copy of the Amended Answer and Claim sent by Mr. Hill's counsel to Ms. Beaver's in compliance with that direction. Whereas in the August and September proposed Amended Answer and Claims submitted by Mr. Hill to this court he did not assert a claim for custody, in the November 13, 2018 draft he claims joint custody of B. with Ms. Beaver.

[40] This chronology discloses three things. First, Mr. Hill repeatedly has represented to this court that he is not seeking custody of B. However, in drafts of Amended Answers and Claims filed or served in the court below, Mr. Hill has taken the contrary position. Mr. Hill has changed his position on custody with some frequency, in some cases within the span of a few weeks.

[41] Second, as the record in this proceeding now stands, the issue of the custody of B. was determined by the final order of Sloan J. dated June 11, 2018. The record also discloses that:

(i) Mr. Hill has not appealed that order;

(ii) One year ago – on June 18, 2018 – Mr. Hill filed a 14B motion with the Superior Court of Justice to set aside that final order; and

(iii) Mr. Hill has not sought to move that motion along, notwithstanding the appointment of a designated case management judge.

[42] Third, given the existence of the final order granting Ms. Beaver custody of B., the earlier May 24, 2018 order of Sloan J. dismissing Mr. Hill's motion for leave to amend his pleading to claim custody was superseded by the June 11, 2018 final order. Yet, instead of appealing that final order, Mr. Hill has appealed the superseded May 24, 2018 order. He is challenging the wrong order. Accordingly, his appeal is dismissed.

[43] I note that counsel for Ms. Beaver informed the court that her client consents to Mr. Hill amending his Answer and Claim to seek relief regarding access and terms of access.

Disposition

[44] The appeal is dismissed.

[45] Ms. Beaver is entitled to her costs of this appeal on a partial indemnity basis, which I would fix in the amount of $25,000, including disbursements and applicable taxes, payable within 5 business days of this order.

IV. FINAL COMMENT

[46] I conclude with a comment about the process that has brought these two appeals before us. As mentioned, in its October reasons this court stated that this case has "developed into a procedural morass." Both appeals are examples of that morass. In both appeals, Mr. Hill has attempted to challenge orders made below by resorting to indirect, convoluted procedural tactics, instead of taking the direct routes of review open to him under the Family Law Rules and Rules of Civil Procedure. Such tactical indirectness not only drives up the parties' legal fees, it also delays bringing certainty to the life of a 9-year old boy whose best interests seem to have been completely lost in the high conflict litigation battle between his father and mother.

[47] I repeat what this court directed eight months ago: "This must not be permitted to continue."

Released: June 21, 2019

David Brown J.A.

"I agree. L.B. Roberts J.A."

"I agree. B.W. Miller J.A."