Court of Appeal for Ontario

Date: 2019-07-22 Docket: C66662

Panel: Hoy A.C.J.O., Trotter and Jamal JJ.A.

Between

Farhiyo Tahlil Farah Applicant (Respondent)

and

Dahir Mohamed Respondent (Appellant)

Counsel

Julius Omware, for the appellant

Erika M. Young, for the respondent

Heard: July 18, 2019

On appeal from the order of Justice M.T. Linhares De Sousa of Superior Court of Justice on February 28, 2019.

Reasons for Decision

[1] At the conclusion of the hearing, we dismissed the appeal with reasons to follow. These are our reasons.

[2] The father appeals from the dismissal of his appeal from four family law orders relating to the custody and access of the three children of the marriage: (1) the interim order of Scully J. (December 22, 2010); (2) the interim and final consent order of Jones J. (December 20, 2011); (3) the final order of Murray J. (July 17, 2015); and (4) the order of Finlayson J. denying the father's motion to change the order of Murray J. (January 15, 2018).

[3] In the proceedings before Jones J., the father consented to an order awarding custody of the children to the mother, with unsupervised access by the father. On a motion by the mother, Murray J. amended the order of Jones J. by ordering that access by the father be supervised. On the father's motion to change, brought two and a half years later, Finlayson J. essentially maintained the Murray J. order. Both Murray J. and Finlayson J. were concerned with the father's conduct in bad-mouthing the mother in the presence of the children, and with the sporadic nature of the father's visits with the children.

[4] The appeal from these orders was scheduled to be heard on November 20, 2018. The father sought and was granted an adjournment. The father was told to order the transcripts from all four proceedings. When the appeal was to be argued on February 28, 2019, the father had failed to obtain all of the required transcripts. Counsel appearing for the father told the appeal judge that circumstances beyond the father's control prevented him from acquiring the missing transcripts. The appeal judge asked whether the father wanted an adjournment. After some equivocation, counsel requested an adjournment. However, the father insisted on proceeding in the absence of the missing transcripts. As the appeal judge ruled:

The [father] is not seeking an adjournment. The [father] has not provided the full transcripts as requested to do so in my endorsement of November 20, 2018. As a result, a complete record for this appeal has not been advanced nor completed. Based on the material before me, I conclude that the appeal has no merit and is therefore dismissed. [Emphasis added.]

[5] The appeal judge ordered that the father pay the mother's costs in the amount of $2,500.

[6] The father appeals on the basis that he was denied procedural fairness, arguing that the appeal should have been adjourned so that transcripts could be obtained. Moreover, he complains that the reasons of the appeal judge do not explain why she considered the appeal to have no merit. We reject both arguments.

[7] Although it would have been open to the appeal judge to have adjourned the appeal once again, and it would appear that she was prepared to do so, the father wished to proceed without complying with the appeal judge's previous direction to obtain transcripts. It is not open to the father to now argue that the appeal judge should have granted a further adjournment to give him another opportunity to obtain these materials.

[8] The father asserts that the appeal judge failed to give sufficient reasons for her decision to dismiss the appeal. This ground was not raised in his Notice of Appeal. Nevertheless, as the appeal judge explained, based on the materials before her, the appeal had no merit. There was no basis to disturb the custodial/access arrangements reflected in the order of Murray J., confirmed by Finlayson J. The father does not contend that the appeal judge erred in reaching this conclusion.

[9] The appeal is dismissed. The father will pay costs in the amount of $2,000, inclusive of disbursements and taxes, to Legal Aid Ontario.

"Alexandra Hoy A.C.J.O."

"G.T. Trotter J.A."

"M. Jamal J.A."