A.B. v. N.L.A., 2013 ONSC 2990

CITATION: A.B. v. N.L.A., 2013 ONSC 2990

COURT FILE NO.: FS-1200017931-0000

DATE: 20130620

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

A. B.

Appellant

– and –

N. L. A.

Respondent

Dennis Apostolides, for the Appellant

Ian Mang, for the Respondent

HEARD: April 16, 2013

CZUTRIN J.:

[1] The present appeal raises issues of procedural fairness (due process), the role of a case conference judge, and the orders that can appropriately be made at a case conference. The Appellant father (Respondent in the case) appeals the final orders made on February 14, 2012, not on consent, by the case conference judge of the Ontario Court of Justice who presided over two case conferences in this case. The orders disposed of all substantive issues between the parties, including custody, access and child support.

[2] Notice of the case conferences was given to the father on the proper case conference forms. The father twice requested an adjournment of the case conference for the purposes of consulting counsel. First, he filed a 14B motion on notice prior to the scheduled case conference, but it appears this was not considered by a judge prior to the February 14, 2012 attendance at the case conference itself. He requested an adjournment again at the case conference but his request was denied. The conference proceeded and the end result was the final orders, which the father presently appeals.

Background

[3] The parties are the parents of J., born […], 2007.

[4] They married on December 12, 2006 and separated on November 27, 2009.

[5] After separation, the child primarily resided with his mother and the father spent alternate weekends from Friday to Sunday with J.

[6] On December 10, 2009, the parents signed a temporary agreement that established custody of J. with the mother and provided access on alternate weekends to the father. The father alleged that he signed the agreement because this was the only way the mother would allow him to see his son. The agreement was prepared by a lawyer retained by the mother and the father did not review the agreement with the benefit of counsel. He sought to set aside the agreement.

[7] Over time, the father’s access time with the child increased and remained the status quo until the final order granted at the case conference which maintained that status as a final order but provided greater detail.

The Court Process

[8] The mother commenced an application on August 13, 2010, with a first court date scheduled for October 1, 2010.

[9] The mother filed her Application several months after separation, yet neither party appears to have brought motions or pressed the issues as urgent after the mother filed her Application (first case conference on February 8, 2011)

[10] The mother filed the required Form 35.1 Affidavit in Support of Claim for Custody or Access. It is dated August 12, 2010, and I see no updating affidavit.

[11] The mother’s application sought orders for custody, child support, the right to travel with and apply for a passport for the child and a restraining and non-harassment order.

[12] The mother’s application provided an outline of the facts she alleged, including that the father was manipulative and “emotionally abusive”. She conceded that after the child’s birth she “suffered from a mild case of post-partum depression” and for a period of time lived with her parents. She also conceded that for a period of time after she returned to live with the father they “shared caregiving responsibilities equally”.

[13] In his Answer, the father sought custody, child support and a restraining and non-harassment order.

[14] He asked for the involvement of the Office of the Children’s Lawyer (“OCL”) and a psychological assessment of the mother. He also referred to the mother’s post-partum health issues and alleged that, as a result, he became a “stay at home father”.

[15] The father alleged that the mother was violent against him and “emotionally neglectful towards [J.].”

[16] He outlined the history of their attempts (individually and collectively) to seek professional help and provided the names of the therapists.

[17] The mother replied and took issue with the father’s allegations.

[18] The Children’s Aid Society has been involved with this family.

[19] The Appeal Record does not contain the entirety of the Ontario Court of Justice file, and therefore, I am not aware of any court events prior to the parties’ first case conference on February 8, 2011. The same judge presided at both case conferences.

[20] At the first case conference of February 8, 2011, the parties, represented by counsel, agreed to the OCL becoming involved and to a temporary order for child support.

[21] Neither of the counsel on this appeal were counsel for the parties at the conferences.

[22] The disclosure meeting by the OCL did not resolve the parenting issues and a report was prepared and served.

[23] It is unclear who made the request to return for another conference, but a second case conference was scheduled for February 14, 2012.

[24] When the case conference proceeded on February 14, 2012, the father advised the case conference judge that he expected that the conference would be an opportunity to negotiate. He was without counsel at that time and did not expect or come prepared to make submissions with respect to a final disposition of the substantive issues of custody, access and child support.

[25] The parties’ positions on the merits were outlined in their case conference briefs.

[26] The mother included the following in her materials for the conference: the s. 112 Report of the OCL pursuant to the Courts of Justice Act, R.S.O. 1990, c. C.43; a proposed final draft order; her financial statement; and an Offer to Settle. The father included the following in his case brief: a proposed parenting plan; and some tax documentation with respect to his income.

The Appeal

[27] The father’s appeal raises issues regarding the final orders a judge may appropriately make at a case conference, the adequacy of the notice of any requested orders, procedural fairness, the application and objectives of the Family Law Rules and the role of a case conference judge.

[28] The final order granted at the case conference fixed child support and costs and prohibited the father from commencing any further proceedings until the costs ordered were paid in full. It was consistent with the very detailed draft order proposed by the mother, with additional terms added by the case conference judge which were not requested by the mother or her counsel.

[29] The eight page final order contained 36 paragraphs and was attached as Appendix “A” to the ruling. Paragraphs 3 through 23 dealt with the parenting issues in greater detail than the 20 recommendations made in the OCL Report.

[30] The father’s position on this appeal is the following:

1. The first case conference was held on February 8, 2011. At the second case conference of this matter (February 14, 2012), when the father was unrepresented by counsel, he requested a brief adjournment for the purposes of retaining counsel. The case conference judge denied the adjournment and made a final order that was not on proper notice and did so without consideration of ss. 24(1) and (2) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 and ss. 1, 3 and 19 of the Child Support Guidelines, O. Reg. 391/97.

2. At this second case conference, the case conference judge exceeded his authority by making final orders, instead of simply providing his views on the outstanding issues.

3. The case conference judge denied the father procedural fairness by making orders contrary to rule17(8)(b.1) after the father repeatedly indicated to the case conference judge that he understood the purpose of the court attendance was to see if a resolution of the outstanding issues was possible by way of negotiation.

4. The case conference judge contravened the father’s right to procedural fairness by making an order that the mother did not seek and for which there was no evidence.

5. There was no evidence to support the income imputed to the father.

[31] The mother defends the appeal and her position is the following:

1. Relying on rule 17(8)(b.1), the case conference judge had jurisdiction; notice was given and the case conference judge did not err. He exercised discretion in an appropriate manner.

2. The father was treated fairly and if he was granted an adjournment the mother would have been put to the expense of her lawyer preparing again.

3. The evidence at the conference was the OCL investigative report.

4. The father failed to follow rule 21(e) of the Family Law Rules by failing to file a statement disputing anything in the report.

5. On the support issue, the father had previously consented (at the initial case conference) to an order imputing income to him of $35,000.

The February 14, 2012 Case Conference – Evidence and Materials Provided

[32] While I am uncertain exactly what materials the case conference judge had at the conference, the mother’s Form 17A Case Conference Brief on its first page provided the following index:

A. Families In Transition receipts (2) dated March 24, 2011 re parenting courses, Jewish Family and Child Services Certificate of Completion and letter from the Jewish Family and Child Services dated June 6, 2011 re completion of course;

B. OCL Report … dated December 14, 2011;

C. Offer to Settle [of the mother] dated February 7, 2012;

D. Draft order;

E. Financial Statement [of the mother] sworn February 7, 2012.

[33] In the mother’s case conference brief she emphasized (in capital letters) the most pressing issues that the parties needed the conference judge to “help resolve in order to achieve a final order”.

[34] She then suggested that she needed the “court to confirm for the parties that the final result in this case is likely to mirror the recommendations of the OCL investigator”.

[35] At page 7 of the brief, the case conference judge is asked to look at the mother’s offer to settle and in the subsequent paragraph, she asks the judge to make a temporary or final order as per the draft order.

[36] The father’s case conference brief was signed by him on February 13, 2012 and filed at the court on the same date. It included a request to change his support and although he did not file an up-to-date financial statement, he provided tax information for 2007 (line 150 income of $7,423), 2008 (line 150 income of $25,793), 2009 (line 150 income of $28,609), and 2010 (nil income). He proposes to pay support based on the 2009 income. He acknowledged that child support was ordered based on an imputed income of $35,000 but states that this was based on a misrepresentation of his employment status. He was not a certified Optician at the time of the order but has since returned to school to receive his Optician certification.

[37] The father’s case conference brief confirmed his completion of two parenting courses. He indicated that the main issues for the case conference were his request for shared/joint custody and proposed a six page parenting plan, as the judge directed at the first case conference. The brief also set out his request for equal sharing of Jewish Holiday time with the child and an amendment to the child support order. It addressed the mother’s February 2012 offer to settle and the father’s apprehension of bias relating to the OCL Report.

[38] In the “Brief History” section, he wrote that the child has twice been referred to a psychologist by the pediatrician, but that he was not notified and he found out about the second referral only at the OCL disclosure meeting. At that time the appointment with the psychologist was still pending.

[39] He proposed a detailed parenting plan and expressed his concern for his child’s continuing medical issues and the pending referral of the child to a psychologist.

[40] The father expressed an apprehension of bias by the OCL and suggested that he was in the process of obtaining a full critique of the OCL Report by a qualified expert.

[41] I have reviewed the report of the Office of the Children’s Lawyer, dated December 14, 2011, with the Clinical Investigator’s Affidavit appending the report sworn the same day.

[42] The report confirmed that the request for their involvement was made February 8, 2011, when the child was approximately four years of age. The OCL assigned their clinical investigator on May 9, 2011, some three months after the court’s request.

[43] It was at the end of May 2011 that the investigator first interviewed a parent and at the end of June and mid-July that there was an observation of each parent with the child.

[44] On November 22, 2011, counsel and the parties met with the clinical investigator for a disclosure meeting. This was over nine months after the case conference judge’s request for OCL involvement was made.

[45] It is reasonable to assume that since a report was written, the disclosure meeting did not result in a resolution and that the OCL knew that this matter would then proceed to the next step.

[46] Early in the report, the investigator identified the following:

Both parents have expressed having significant concern in regard to [the child] not being toilet trained for bowel movements and for ongoing medical issues regarding constipation and toileting. These issues continue to present. It should be noted that just prior to the end of the investigation, [the mother] did request that [the father] attend with her, which he did, to help [the child] get blood drawn for blood tests requested by his pediatrician.

[47] The OCL Report runs 32 pages before the recommendations.

[48] The child’s pediatrician provided two letters to the investigator but the investigator reported no follow-up calls or questions to the pediatrician.

[49] The pediatrician advised in the first letter of July 27, 2011, that with the exception of ongoing constipation issues, the child’s development and medical history have been completely normal. The doctor reported that there has been a “huge amount of conflict with respect to parents around the toileting and constipation issues” which he noted at that point seemed to be resolving, and that in his opinion this seemed to be “focal point of stress amongst the parents”.

[50] The pediatrician reported that the child has always been well cared for by both parents and he has never had any issues with respect to any abusive situations, nor has he ever had any medical concern for the care given by either parent or their interaction with the child in his office.

[51] The pediatrician’s November 22, 2011 letter advised that he referred the child to a child psychiatrist “to try and resolve some of the issues around his stooling and why we are having such a problem to control it medically”.

[52] I do not intend to review all of the report and the history of the involvement of the police, Jewish Child and Family Services and others, but the case conference judge concluded that it was necessary to end the conflict by making the final order at a case conference.

[53] Commencing at page 30 of the OCL Report, under the section entitled “Discussion”, the investigator made the following points:

Fortunately, despite the ongoing custody and access issues, [the child] is in many ways doing well.

Firsthand observations, as well as information obtained from collateral sources who have had the opportunity to observe [the child] with his parents, have indicated that [the child] has a clear and positive emotional connection to each of his parents and has been consistently observed to be comfortable, affectionate, responsive, interactive and happy with both parents. School and daycare staff indicated that [the child] does not present with any behavioural changes from one day to the next and that his behaviour and interaction is the same with each parent. Moreover, it has been reported that [the child] is always very happy to see either parent.

Nonetheless, [the father] has continually presented to the clinical investigator, as well as other professionals involved in [the child’s] life, including his pediatrician, daycare staff, police and child welfare authorities that [the child] is not doing well in his mother’s care and that [the mother] is a neglectful, mentally ill, and incompetent parent who is inattentive to [the child], and does not feed him properly or dress him appropriately for the weather. In addition, [the father] has alleged that [the mother] minimizes, and in some cases is the cause of, [the child’s] medical issues and fails to appropriately follow-up on medical treatment.

Later the investigator stated:

There is no doubt it would be helpful to have an assessment undertaken by a child psychiatrist to aid in the understanding of what [the child] is really experiencing and how his current situation may be impacting his emotional presentation as well as his ongoing toileting and constipation issues.

There is a sense that both parents, particularly [the father], dwells on petty and superficial issues as evidenced by the content of emails between the parents.

[54] In the paragraph leading to the recommendations the investigator writes:

There is no compelling reason to change the current residency arrangement right now. In fact, given that there is currently not enough information to understand the full extent of the emotional issues related to [the child’s] toileting struggles, and because [the child] still seems to be struggling with the transitions between the parties’ homes, a significant change in the access schedule at this time could be detrimental to his well-being.

Review of the February 14, 2012 Case Conference

[55] In reviewing what occurred at the February 14, 2012 conference and the order that resulted, I examined the material that the case conference judge had, as well as what the judge referred to and the transcript of the conference, which had been provided to me.

[56] As a judge sitting on appeal, I am guided by the standard of appellate review as set out in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 (S.C.C.). The standard is as follows:

i. on pure questions of law, the standard is correctness;

ii. as to findings of fact, the standard is overriding and palpable error; and

iii. with respect to mixed fact and law, the standard is also overriding and palpable error unless it is clear the trial judge made an error in principle which may amount to an error in law and be subject to the standard of correctness.

[57] Palpable and overriding error has been defined by the Ontario Court of Appeal as "... findings made in the complete absence of evidence, findings made in conflict with accepted evidence, findings based on a misapprehension of evidence and findings of fact drawn from primary facts that are the result of speculation rather than inference" (Waxman v. Waxman, 2004 CanLII 39040 (ON CA), [2004] O.J. No. 1765, at para. 296).

[58] My review and focus included, as counsel directed, whether the judge conducting this case conference exceeded the judge’s jurisdiction as a case conference judge or improperly applied the Family Law Rules, so as to constitute an error in law. I also considered whether the process was so procedurally unfair that I must set aside the orders made.

[59] The father made known his request to adjourn the case conference by serving and filing a 14B motion, with supporting material. He sought to retain a new lawyer, “a family lawyer.” The 14B request appears to have been made on notice and was dated February 6, 2012 (the day before the mother signed her case conference brief).

[60] While I saw the 14B request, I did not see, nor was I advised whether the mother formally replied to the request. I am also unable to determine on the material whether a judge considered the request prior to the attendance at the case conference.

[61] At the commencement of the February 14, 2012 attendance the judge confirmed, “[y]ou’re here for a case conference.”

[62] The transcript of the February 14, 2012 case conference speaks to the father’s adjournment request. The judge stated, “[S]ir, the report came out exactly two months ago. If in the last two months you didn’t have the sense and the wherewithal to consult a family lawyer … I don’t think you deserve an adjournment.”

[63] Mother’s counsel reminded the judge that on the last case conference when the parties were before the same judge, the judge ordered that the OCL get involved and that they have since received a report.

[64] The judge confirmed that each party had received the report and asked whether it helped them resolve the issues.

[65] The father responded as follows: “Well, I came here in good faith. I was instructed by the counsel for the applicant that we would try to work out a settlement, but I was just told this morning that that won’t be happening.”

[66] The father confirmed that he had read the report.

[67] The judge responded by asking the father, “… and has it [the OCL Report] assisted you in resolving the matter in accordance with the recommendations that they’ve made, because that is why we send cases to the Children’s Lawyer?”

[68] After describing the independence of the OCL and the fact that they will likely provide the only independent evidence a court would receive, the judge stated, “The courts place great weight on these recommendations, so let’s see what they recommend”. The judge then reviewed the recommendations.

[69] The judge reviewed the parties’ case conference briefs and looked to see whether either party sought an order at the case conference. The judge reviewed the orders asked for. The judge referred to Tab D, described as the draft order proposed by the mother.

[70] The judge at page 4 of the transcript , having reviewed the briefs and orders asked for, stated:

So both of you are asking for orders regarding support and one of you is also asking for orders with custody and access. So I’m first going to hear from the applicant (mother), and then I’m going to hear from the respondent (father) and then I’m going to give you a decision. Okay? In accordance with the notice that you’ve both provided under Rule 17 8 (b) at this case conference…

[71] I was rather surprised that the judge immediately focused on orders of a substantive nature. There appears to have been little discussion consistent with the stated purposes of a case conference, which pursuant to rule 17(4)(a)-(i) include:

(a) exploring the chances of settling the case;

(b) identifying the issues that are in dispute and those that are not in dispute;

(c) exploring ways to resolve the issues that are in dispute;

(d) ensuring disclosure of the relevant evidence;

(d.1) identifying any issues relating to any expert evidence or reports on which the parties intend to rely at trial;

(e) noting admissions that may simplify the case;

(f) setting the date for the next step in the case;

(g) setting a specific timetable for the steps to be taken in the case before it comes to trial;

(h) organizing a settlement conference, or holding one if appropriate; and

(i) giving directions with respect to any intended motion, including the preparation of a specific timetable for the exchange of material for the motion and ordering the filing of summaries of argument, if appropriate.

[72] The father raised issues with the recommendations of the OCL and sought an adjournment. He was clearly not expecting final orders to be made at the conference.

[73] In the mother’s case conference brief, she emphasized the most pressing issues that the parties needed the conference judge to “help resolve in order to achieve a final order”. I read the paragraphs in the case conference brief as a request for the judge to express views and recommendations to help the parties resolve, but not an expectation that a final decision on all the issues would be made absent consent.

[74] Parties are of course encouraged to resolve issues and to reach consent, or to the extent possible and consistent with the rules, narrow issues.

[75] At the conference, the mother’s counsel gave submissions and reviewed the OCL’s recommendations. At some point, while the mother’s counsel was making submissions and reading from the OCL’s report, the judge turned to the father and asked, “Sir, what do you do for a living?”

[76] He answered, “I’m still getting my license for the opticians’ program.”

[77] The judge then questioned his employment and education history.

[78] The judge then asked whether the father had had any consultation with a lawyer at all after receiving the OCL’s report and continued:

MR. B.: Well this is the thing; I did not want to proceed without proper representation…

THE COURT: You’re here today, we’re having a case conference, both of you have asked to make orders and I’m likely going to make orders today that will end the case. Did you at least consult a lawyer after you got the report?

MR. B.: My lawyer that was representing me looked at the OCL report…

THE COURT: So is that a yes then?

MR. B.: …but he is not a family lawyer…

[79] The judge then questioned the father about “what your thinking would be to go to somebody who’s telling you they don’t practice family law?” The judge asked why he did not have even a one hour consultation with a family lawyer. The father explained that he could not afford this.

[80] The dialogue on this topic continued in the following manner:

THE COURT: Okay, thank you very much, I’ll get back to you, but I just want to hear the rest of the submissions and then I’m going to hear your submissions, but I stopped because, I have to tell you sir, that what I’m reading in your case conference brief indicates to me a complete lack of understanding of how the Children’s Lawyer’s office works and I’m surprised that someone with an education, with a college education, …wouldn’t have had the sense to consult a family lawyer … and get some of these concerns you’ve raised actually addressed.

MR. B.: This was my course of action, but I just recently lost my present lawyer that was supposed to be here, and that was my next – that’s why I did request a 14B, a motion to adjourn, which…

THE COURT: Except, sir, this case has been going on since September 2010.

MR. B.: Yes, and the OCL took, I think, about eight months.

[81] The judge then stated that two months had passed since the OCL Report was served, and the father agreed with this statement.

[82] Before returning to the submissions of the mother’s counsel, the judge stated:

Thank you. Sir, the report came out exactly two months ago. If in the last two months you didn’t have the sense and wherewithal to consult a family law lawyer to read the report and give you some basic understanding of how the Office of the Children’s Lawyer works, and why the fact that some lawyer on the other side is actually on their panel, would have nothing to do with social work department which is the department that did this investigation and report. [Note: This is in reference to the father raising issue in his case conference brief with the mother’s lawyer being on the panel and attending the disclosure meeting.] I don’t think you deserve an adjournment. I think your child needs to have some closure here and some decisions made. Now I will get back to you, I’ll hear everything else you want to tell me, I just want to finish hearing what the applicant’s counsel is saying and then you’re going to tell me what it is you want and why.

[83] At that time the mother’s counsel returned to her submissions, stating the following:

[The father] has been represented by counsel for many, many months. We had the disclosure meeting in November [with the OCL] and he had counsel present with him at the time. In fact, it’s last Wednesday [February 8, 2012] we had spoken with opposing counsel and said, well why don’t we use Tuesday to try and settle matters, because, we thought – we were serving our offer to settle. He said okay and the next minute we get a notice of change in representation.

[84] This statement from mother’s counsel confirms for me that she, too, expected the assistance of the case conference judge to try to settle the matter at the case conference, not a non-consensual and imposed substantive final order. Further, the final order did not change the longstanding temporary schedule and the OCL Report confirmed that a psychological assessment of the child would be helpful in determining the child’s best interests.

[85] The mother’s counsel submitted that everything should be left the way it was. Mother’s counsel conceded that the child had health issues (constipation), but the OCL reported, “It’s not clear to the pediatrician whether or not there may be a psychological component to this”.

[86] Mother’s counsel spoke to the reporting by the mother and her parents of some very unusual things the child said to them.

[87] She submitted that these were all signs of anxiety and constituted “another reason not to interfere with this sole custody arrangement”. The custody arrangement she referenced was not a court order, but an agreement between the parties.

[88] The mother’s counsel outlined in her submissions that the father was stuck on the “post partum” issues, which had happened four years prior.

[89] Once the mother’s counsel was finished, the judge turned to the father and the father stated that he was not planning to make submissions. He explained that he came in good faith to “talk of settlement”. He said that he thought they would go back and forth, but that “it wouldn’t happen in an hour”.

[90] To this, the judge responded, “There is time to negotiate even after today ... but, if people can’t agree and you’re now at the stage where I don’t think you have an agreement on anything … I can’t make two people sit down and negotiate. I wish that it would happen the way you’re recommending but I can’t make it.”

[91] Most of the transcript is the father and judge talking. The mother was not asked to engage in a similar manner.

[92] The judge had settlement positions and an offer to settle that had been presented and yet, the case conference judge proceeded to decide issues that were not agreed to. The issues were not urgent when considering the history. Further, this was done with little evidence or opportunity to challenge the evidence in a procedurally fair and appropriate manner.

[93] At page 80 of the transcript, the Judge concluded:

The Children’s Lawyer report, as far I’m concerned, is very thorough, it’s very fair, it actually captures both of you, of the essence of who you are and what your family dynamic is extremely well. If I had any doubts about that the respondent’s case conference brief only served to reinforce it, as well as his submissions today. So final order as per appendix – well I’ve called it Appendix A now, I’ve torn it out appendix “D”, I’m calling it appendix A, and that’s the only difference is that you will see the paragraph that deals with child support.

[94] Later, the judge suggested future increased access for the father and changes to the schedule, “but only after we’re seeing the child is completely better and no more of this bowel trouble…”

[95] The judge then asked for costs submissions and the father repeated:

I honestly didn’t expect this kind of submission; I thought we were just going to discuss the, canvass the issues, discuss access. And as far as the offer, it was basically status quo; it wasn’t really an offer. So I figured that we would go to a room and discuss something more tangible and hammer it out. I don’t imagine something as complex as these things be [handled] out in an hour in a room; it would take back and forth. Part of a negotiation is coming to a table and submitting an offer and then looking at it and coming back until something is agreed…

[96] The case conference judge concluded that the father should have accepted the Children’s Lawyer’s report and that the father’s position was unreasonable. The judge fixed costs at $5,000, payable by the father.

Analysis

[97] The Family Law Rules enacted in 1999 sought to change the direction of what was seen as a very adversarial family process. The most significant change was the requirement of a case conference before evidence could be exchanged by way of affidavits. The goal was to have a judge meet with the parties, prior to the exchange of accusatory affidavits, so that a judge might assist the parties in resolving as many issues as possible prior to any motions being brought, or to avoid motions entirely. This was the birth of the required case conference prior to any motions or exchange of affidavit evidence.

[98] Rule 17(8) of the Family Law Rules sets out the orders that may be made at a case conference. The provision states,

[a]t a case conference, settlement conference or trial management conference the judge may, if it is appropriate to do so …

(b.1) if notice has been served, make a final order or any temporary order, including any of the following temporary orders to facilitate the preservation of the rights of the parties until a further agreement or order is made:

(i) an order relating to the designation of beneficiaries under a policy of life insurance, registered retirement savings plan, trust, pension, annuity or a similar financial instrument,

(ii) an order preserving assets generally or particularly,

(iii) an order prohibiting the concealment or destruction of documents or property,

(iv) an order requiring an accounting of funds under the control of one of the parties,

(v) an order preserving the health and medical insurance coverage for one of the parties and the children of the relationship, and

(vi) an order continuing the payment of periodic amounts required to preserve an asset or a benefit to one of the parties and the children;

(c) make an unopposed order or an order on consent…

[Emphasis added.]

[99] In interpreting the Rules and to have an understanding of the objectives of the Rules, one must consider rules 2(2) through 2(5), which state the following objectives:

PRIMARY OBJECTIVE

(2) The primary objective of these rules is to enable the court to deal with cases justly.

DEALING WITH CASES JUSTLY

(3) Dealing with a case justly includes,

(a) ensuring that the procedure is fair to all parties;

(b) saving expense and time;

(c) dealing with the case in ways that are appropriate to its importance and complexity; and

(d) giving appropriate court resources to the case while taking account of the need to give resources to other cases.

DUTY TO PROMOTE PRIMARY OBJECTIVE

(4) The court is required to apply these rules to promote the primary objective, and parties and their lawyers are required to help the court to promote the primary objective.

DUTY TO MANAGE CASES

(5) The court shall promote the primary objective by active management of cases, which includes,

(a) at an early stage, identifying the issues, and separating and disposing of those that do not need full investigation and trial;

(b) encouraging and facilitating use of alternatives to the court process;

(c) helping the parties to settle all or part of the case;

(d) setting timetables or otherwise controlling the progress of the case;

(e) considering whether the likely benefits of taking a step justify the cost;

(f) dealing with as many aspects of the case as possible on the same occasion; and

(g) if appropriate, dealing with the case without parties and their lawyers needing to come to court, on the basis of written documents or by holding a telephone or video conference.

[Emphasis added.]

[100] The Family Law Rules were, and still are, aimed at changing the adversarial culture while at the same time getting parties’ settlement or trial ready and, hopefully to a consensual order or agreement. It was anticipated that a conference judge might suggest to the parties what was missing in terms of disclosure or information that might assist the parties to resolve matters. Further, through conferences, parties could avoid unnecessary motions.

[101] If necessary, they could have a judge, once full relevant disclosure had been made, convene a settlement conference to help the parties settle, but not impose a settlement. Judges could guide and make orders necessary to get the requisite disclosure and to temporarily maintain the status quo and preserve assets.

[102] The Family Law Rules identify three types of conferences under Rule 17, case conferences (rule 17(4)), settlement conferences (rule 17(5)), and trial management conferences (rule 17(6)). Conferences may also be combined. While rules 17(4), (5) and (6) are similar and all include the purpose of “exploring the chances of settling the case”, there are differences between the various conferences.

[103] The February 14, 2012 case conference was the second such named conference for the parties.

[104] In this case I am uncertain why the return was for another case conference rather than a settlement conference. I would have thought that with the OCL Report and the father’s income tax returns being available, the next event should have been a settlement conference.

[105] Rule 17(10) requires that a case shall not be scheduled for trial unless, (a) a judge has conducted a settlement conference; or (b) a judge has ordered that the case be scheduled for trial.

[106] Under Rule 17(24), a judge who conducts a settlement conference about an issue shall not hear the issue, except as rule 17(25) provides (re child protection). This however, by logical extension, must also apply to a judge who expresses views at any conference. If a judge expresses a view and then considers the conference briefs as evidence (unless there are unequivocal concessions) and thereafter disposes of substantive issues on a final basis in the absence of consent, this runs contrary to the objectives of the Rules. It undermines the ability of parties to come to conferences with resolution and compromise in mind and express settlement positions, for fear of their positions being considered evidence so as to dispose of the matter on a final basis.

[107] The requirement of a settlement conference before a trial and that the settlement conference judge should not hear the trial speak to procedural fairness and the need for clarity as to process.

[108] While no indication is made on the materials that the conference was considered by the parties or the judge to be a combined conference, it would seem reasonable to have all of Rule 17 apply, if not otherwise specified. Rule 17(7) speaks to the judge directing how and whether conferences are combined. Parties and counsel should know what the process is.

[109] Rule 17(8) sets out the orders a conference judge may make at the various conferences. While rule 17(8)(b.1) permits, on notice, for a conference judge to make temporary or final orders, if it is appropriate, I cannot think of any non-consensual or opposed final orders that are appropriate without first respecting the parties’ rights to procedural fairness and granting the parties a meaningful opportunity to present their case. Other remedies are available throughout the Rules should orders be required before or without a trial

[110] As is highlighted in Merko v. Merko, 2008 ONCJ 530, [2008] O.J. No. 4273, the legislation does not set out a test for determining whether the requisite notice has been given under Rule 17(8)(b.1), and there is a dearth of jurisprudence on the issue. There is similarly little jurisprudence establishing the circumstances in which “it is appropriate make an order”. What is clear is that the notice requirement is meant to help preserve procedural fairness.

[111] According to the Court of Appeal, “[t]he purpose of the duty of fairness is not to guarantee specific substantive results, but to ensure that before a decision is made, the party to be affected is given a proper opportunity to be heard” (Canadian Union of Postal Workers v. Canada Post Corp., [2007] O.J. No. 4629 (C.A.), at para. 4, citing Farm Credit Corp. v. Pipe (1993), 1993 CanLII 8588 (ON CA), 16 O.R. (3d) 49 (C.A.)).

[112] While the expedient resolution of disputes is a laudable goal, especially in family matters, this goal must not be achieved at the expense of a party’s right to procedural fairness or in a manner that does not accord with the Family Law Rules.

[113] Kiteley J.’s decision in Robinson v. Morrison, [2000] O.J. No. 2973 (S.C.J.), is one of few decisions that address the appropriateness of a final order made by a case conference judge. The concern in Robinson v. Morrison, as in the present case, was the lack of procedural fairness afforded to the party who was unaware that the early case conference could result in a final order. In Robinson v. Morrison, the conference judge granted an order for temporary access in spite of the fact that it was the first case conference. No motion seeking access had been brought and there was no affidavit material before the court. The respondent successfully appealed that order.

[114] In her decision granting the appeal, Kiteley J. stated the following, at para. 12:

[T]he Family Rules institutionalize conferences as vehicles for problem resolution. They do not undermine or defeat the rules of natural justice. Before any substantive order is made, a litigant is entitled to notice of the case she must meet, entitled to an opportunity to respond to that case and entitled to an opportunity to be heard. This case was not fairly and fully heard when all of the elements of procedural fairness were not present. The appellant received no notice that an important order such as this would be sought. She knew from the application what case she would have to meet at trial, but she had no notice of what case she would have to meet as to the interim access. Her counsel had an opportunity to make submissions which consisted largely of pointing out the factual differences in the material and resisting the making of an order without notice. Those submissions do not constitute the right to be heard. [Emphasis added.]

[115] The Rules must be considered in their entirety to understand what is procedurally fair to all parties.

[116] While the Rules require conferencing and create the general rule that there are to be no motions without a preceding case conference to deal with the substantive issues (rule 14(4)), the Rules also recognize that at times, a party may need to bring a motion to seek urgent relief (rules 14(4.2) through 14(6)).

[117] The Rules do not do away with motions (or trials). The Rules do, however, permit a motion for summary judgment, if a party moves on affidavit material and the other side has the opportunity to file a reply affidavit. The Rules allow a party to bring such a motion if he or she is of the opinion that the evidence supports a judge concluding that there is no genuine issue requiring a trial (Rule 16). Rule 16 sets out the following with respect to summary judgment:

WHEN AVAILABLE

16. (1) After the respondent has served an answer or after the time for serving an answer has expired, a party may make a motion for summary judgment for a final order without a trial on all or part of any claim made or any defence presented in the case.

EVIDENCE REQUIRED

(4) The party making the motion shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial.

EVIDENCE OF RESPONDING PARTY

(4.1) In response to the affidavit or other evidence served by the party making the motion, the party responding to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial.

EVIDENCE NOT FROM PERSONAL KNOWLEDGE

(5) If a party’s evidence is not from a person who has personal knowledge of the facts in dispute, the court may draw conclusions unfavourable to the party.

NO ISSUE FOR TRIAL

(6) If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.

ONLY ISSUE AMOUNT OF ENTITLEMENT

(7) If the only genuine issue is the amount to which a party is entitled, the court shall order a trial to decide the amount.

[118] The Rules are consistent in requiring that for a judge to make an order on any motion affidavit evidence is required and the other party must be given an opportunity to file responding affidavits.

[119] Except for motions to change orders under Rule 15 or summary judgment motions under Rule 16, most motions are either procedural or result in temporary orders which are intended to last only until a subsequent consent final order or a final order made after a trial.

[120] Even when a party’s answer or application (claims or defences) is struck or a person fails to respond to the court process with an answer, the Rules require the applicant to file an affidavit (Form 23C) in support of an uncontested trial (Rule 23).

[121] In the present case, if the mother thought her case was so strong as to leave no genuine issue for trial, it was open for her, at any time, to bring a motion for summary judgment without a case conference being required. Through this procedure, she could have sought a final order. However, the notice of motion in such cases must be explicit in what is requested. Evidence is required and, importantly, the responding party must have the opportunity to file reply evidence. In such a situation, both parties would know that the summary judgment motion might result in a final order.

[122] In this case, on the other hand, there has never been an exchange of affidavits and there have been no motions.

[123] Further, the only evidence before the judge that would be admissible at a hearing would be the mother’s financial statement, the father’s tax information and the OCL’s Report.

[124] Section 112 of the Courts of Justice Act provides for involvement of the OCL for the purposes of conducting an investigation and producing a report for the purposes of making recommendations regarding a child’s custody and access. An investigation and report were prepared in the present case. Pursuant to the Rules, when the investigation and report are complete, the investigator swears an affidavit verifying that the facts set out in the report are within the investigator’s knowledge and stating the source of the information included. The report is attached to the affidavit and both are served on the parties. On being filed, this material forms part of the evidence at the hearing of the proceeding (s. 112(3) CJA). While valuable, an OCL’s report and recommendations are not determinative of the issues and are not always followed.

[125] In addition to the lack of evidence upon which to base a final order at a case conference, there is also a concern in this case with the information that was before the case conference judge and the inability of the parties to challenge the evidence in a procedurally appropriate way.

[126] Pursuant to the Family Law Rules, case conference briefs are not part of the continuing record and are to be returned to the parties (rule 17(22)). In the exception to this rule, where the case conference briefs are ordered to be part of the record under rule 17(22.1), the portion that deals with settlement must be deleted.

[127] Parties at a conference are not present for the purpose giving evidence. This would defeat the main purposes of a conference which are to deal with the case procedurally and explore the chances of settlement and work toward resolution or trial readiness.

[128] Similarly, offers to settle are not to be included in the continuing record and offers are not to be seen by the judge who decides a motion, trial or any event until after the event (rule 18(8)).

[129] The Rules require a confidential settlement conference before a case is scheduled for trial (rules 17(10), (23)). The judge who conducts a settlement conference is prevented from hearing, at trial, the issue that was discussed at the conference (rule 17(24)).

[130] In this case the conference judge had both the case conference briefs and the mother’s offer to settle; neither of which would have been available to the decision maker at trial pursuant to the Rules.

Disposition

[131] There may be limited and exceptional circumstances in which a case conference judge may make a final order (rule 17(8) (b.1)), provided it is upon notice and in line with the broad objective of dealing with cases justly. In considering the appropriateness of a final order even where notice has been given, the court must remain cognizant that “conferences are not meant to be adversarial proceedings which can result in orders adverse in interest to one party or the other” (W.W. v. X.X., 2013 ONSC 879, [2013] O.J. No. 600, at para. 32). Frankly, I cannot think of any circumstance where a final substantive dispositional order should be made at a conference where there is an answer and opposition. Other Rules allow for final orders while preserving procedural fairness, as I have outlined above in these reasons.

[132] Here, however, it cannot be found appropriate to make a final order on a substantive issues in a case where:

1. The father has been represented, but was not represented and sought an adjournment of the case conference for the first time; and makes known his request even before the other side serves and files their case conference brief.

2. There are no current affidavits of the parties or a financial statement of the father.

3. There are no clear concessions made or request to admit under Rule 22.

4. Despite notice of orders sought, the expectation was that settlement discussions and an effort to settle would be pursued.

5. The mother could have moved for a summary judgment if she felt the evidence was so strong as to raise no triable issue. But then, procedurally, both parties would have been treated fairly and understood what the possible outcome would be.

6. An offer to settle made by one party was considered and the same judge decided the case and also costs. This was called a case conference and not a settlement conference. Thus the parties were not required to make and disclose offers to settle .the father could not have reasonably predicted that a final order would be made, largely in terms of the mother’s offer to settle.

7. There was no process consistent with the purposes of any type of conference, the main purpose being disclosure and exploring the chance of settlement and finding ways to resolve the case.

8. If the judge concluded that the father was the cause of the delay (although the material does not support that conclusion), the conference could have been adjourned, with costs. The judge could have set specific terms, including setting a timetable to trial that set timelines for the father for further disclosure, retaining counsel and filing any further material and affidavit evidence.

9. The evidence before the case conference judge was an early 35.1 affidavit of one party, the OCL report, the mother’s financial statement and father’s tax documents. The tax documents would not support the disposition of child support since his income tax return disclosed an income lower than the temporary order made final. The OCL report was only to be part of the evidence and it recommended the status quo and raised issues including a pending referral for the child.

10. An adjournment to allow the father to retain counsel would not prejudice the mother or young child. The final order essentially continued the custody and access status quo. An order for temporary support was in place. Costs of the conference could have been ordered against the father

[133] To repeat, conferences are intended to assist in getting parties to a settlement or to trial readiness and to attempt to avoid motions. Conferences are not intended to be used as venues in which to determine opposed substantive matters on a final basis. They are not meant, and could not have been intended, to prevent a person from having an opportunity to be fairly heard according to the Rules. At conferences, it may often be appropriate to make procedural orders or temporary orders to preserve positions, provide for temporary support (based on sworn financial statements and undisputed facts), ensure necessary disclosure, and move the case along. However, seldom (if ever) should a final order be made at a conference when it is opposed and not on consent.

[134] In making the decision about what is appropriate, a judge must consider the objectives of the Rules, the various remedies the Rules offer and the guidance of Rule 17 as to what orders can clearly be made. The judge must pause when considering orders that do not merely preserve temporarily the status quo and protect parties and children. In the absence of consent, final orders must only be made be based on evidence.

[135] The case conference judge expressed views on the merits of the case in the course of the conference and thereafter should not have heard any substantive motions or the trial. Similarly, the judge should not have made final substantive orders at a conference.

[136] In the end, the final orders made in this case were made inappropriately, incorrectly in law, and in a manner that was procedurally unfair.

[137] The making of these final orders, unsupported by the evidence, constitutes a palpable and overriding error and the orders cannot stand.

[138] The orders made are set aside.

[139] The case is referred back to the Ontario Court of Justice to set the next steps.

[140] While I set aside the costs order as well, costs are inappropriate in the circumstances of this appeal.

Czutrin J.

Released: June 20, 2013

CITATION: A.B. v. N.L.A., 2013 ONSC 2990

COURT FILE NO.: FS-1200017931-0000

DATE: 20130620

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

A. B.

Appellant

• and –

N. L. A.

Respondent

REASONS FOR JUDGMENT

CZUTRIN J.

Released: June 20, 2013