SUPERIOR COURT OF JUSTICE – ONTARIO

COURT FILE NO.: FS-13-19051
DATE: September 18, 2014

APPLICANT: Janani Nicola Chitsabesan

RESPONDENT: Ajanthan Yuhendran

BEFORE: Mr. Justice Perkins

LAWYERS:
Ian Mang and Maddalena Fuller, for the applicant mother (respondent in appeal)

Jacqueline M. Mills, for the respondent father (appellant)

HEARD: September 8, 2014

ENDORSEMENT

Issues in the appeal

[1] This is an appeal from a final order of the Ontario Court of Justice, with written reasons, made on November 13, 2013, after a 14 day trial. The trial dealt with custody and access of a little girl born to the parties in June, 2012. The result was final custody to the applicant mother, permission for the mother to move away with the child to London, England, and liberal access to the respondent father both in England and in Ontario.

[2] The mother was born and raised in England. The father was born in Sri Lanka and raised in Canada. They married in England in 2009, did not live together at first, but planned to and did live together in Ontario. They separated finally in early 2013, though they had earlier periods of living apart. The father was charged with assault against the mother in January, 2013, but was acquitted after the trial of the custody and access issues.

[3] The father has appealed from the final order. He wants an order requiring the mother to return to Ontario with the child and providing for the parties to have joint custody here. In the alternative, he asks for a new trial on custody and residence. He seeks in addition an order to correct what he sees as fundamental gaps or defects in the final access order.

[4] The father’s notice of appeal sets out 17 grounds of appeal, but they boil down to four main points. He says the trial judge applied the wrong legal test in determining whether the mother should have custody and be allowed to move away; the trial proceeded in a fundamentally unfair fashion; the trial judge failed to take proper account of the evidence; and the final order is unenforceable, incomplete, and internally inconsistent.

[5] On filing his appeal in this court, the father sought a stay of the final order pending the hearing of the appeal. The stay was refused on December 2, 2013. The mother and child moved immediately to London, England and remain there.

[6] On January 22, 2014, before the final order was signed, the trial judge heard a motion by the father for specified dates of access in London, England in January to March. She made a temporary access order, pending signature of the final order.

[7] 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,

2. I have signed the “Appendix A Order” as filed by the applicant as it most closely resembles my decision as written.

3. 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.

[8] The order under appeal provides: “13. Any necessary variations or enforcement court proceedings shall be in this court … . This term shall remain in effect for one year after the conclusion of all the court matters here.” The application in the OCJ included a claim for child support, but it did not form part of the trial and has not been concluded. Counsel told me there is no agreement to pay child support and there is not even a temporary child support order in effect.

[9] While the appeal was pending, this court ordered on consent on June 24, 2014 that the father would travel to England, pick up the child for two days of access in London, travel back to Canada with her for 29 days of access, and return her to the mother. The June 24 order also provided that the mother would bring the child to Canada for about three weeks in September, around the time of the hearing of this appeal, during which period the father was to have 21 days of access. The June 24 order refers for decision in this appeal whether the father’s July access counts for purposes of paragraph 5(b) of the final order of November 13, 2013, which requires the mother to make the child “available in Toronto for access at least twice a year for at least three weeks.” The father contended that since he had to go to London to get the child, the July access does not qualify as the mother’s making the child “available in Toronto”. The mother submitted that the July access fulfilled her obligation for the first of two access visits in Toronto, with the second one occurring in September.

[10] The father submitted fresh affidavit evidence of events over the last several months, in part to buttress his argument that the trial judge failed to appreciate the evidence at trial properly, and in part to show why the final order needs to be amended or supplemented to make it workable. I admitted the father’s evidence and the mother’s responding affidavit.

[11] In reviewing the final order and the judge’s reasons, the test I must apply is first, whether the trial judge made an error in law that affected the outcome, in which case, I must correct the legal error and its impact. Second, I must see whether on questions of fact, or mixed law and fact, or application of the law to the facts, the trial judge made a palpable and overriding error that affected the outcome, and only in that event may I intervene. On findings of fact, and especially on conduct of the trial itself, substantial deference is owed to the trial judge.

Result

[12] The appeal is allowed in part. The decision on custody, relocation and access is affirmed but the final order is remitted 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 she desires in her reasons for decision or in the order itself. The trial judge may determine whether to admit oral evidence or affidavit evidence on these matters in addition to what was before me, and whether to receive oral or only written submissions.

[13] I find that the July, 2014 access visit by the father qualifies as one of the two visits required by paragraph 5(b) of the final order, but the mother is responsible for reimbursing the father for the actual cost of travel for himself and the child between London and Toronto. The amount and manner of reimbursement are referred back to the Ontario Court of Justice for determination by the trial judge or such other judge as is assigned to deal with the financial issues between the parties.

Custody, relocation and access

[14] Before me, the father did not press the argument that this case should have resulted in joint custody. There was ample evidence before the trial judge to justify ruling out that option more quickly than she did. The result of custody to the mother was obvious on the facts of this case. The child had been cared for since birth primarily by the mother. There was no recent cooperation between the parents and no realistic prospect of effective communication between them at the time of trial. The father was prohibited at the time from having direct contact with the mother by a court order in the father’s criminal case. The father’s real complaint was that the trial judge failed to apply the right legal test to determine whether the mother should be permitted to move away to England with the child, who was not yet 18 months old at the end of the trial.

[15] The test the trial judge applied was the best interests of the child, not just, “happy mother, happy child,” as submitted by the father. The trial judge even went so far as to consider specifically the “maximum contact” principle embodied in the Divorce Act, even though it was not applicable to these parties -- the case was brought under the Children’s Law Reform Act, which imposes no such presumption in its list of factors a court must apply in evaluating best interests. Nor was it an error to consider the father’s past history of criminal offences, especially those involving violence. Section 24(3) of CLRA allows the court to consider conduct that has an impact on the ability of a party to parent. But in any event, the trial judge dismissed the importance of the historic offences, accepting the father’s submission that his past was no longer relevant.

[16] The father submitted the trial judge misapprehended the evidence about the mother’s family connections here and her employability here and in England. (I think the father’s real complaint was that the mother’s evidence on these points was untruthful.) It is clear, however, that the mother’s family and employment connections with England were deeper than those here. The trial judge may have projected an unduly gloomy future for the mother in Ontario, but the fact remains that she had a job in England, to which she has now returned, and which was solid enough to give her extensive leaves of absence while the court case was proceeding in the OCJ. Her roots were in England and her mother, two aunts and two siblings live in London.

[17] The father submitted that the trial judge made factual errors about when the parties separated, but nothing significant turned on whether the parties’ time apart before 2013 was a “separation” as opposed to just being apart temporarily.

[18] The father submitted the trial judge failed to give proper weight to evidence showing close connections and involvement of the father and his extended family (particularly his mother) in the child’s life, but the trial judge clearly heard and considered that evidence and found that other factors outweighed it. This she was entitled to do.

[19] There is no doubt that the great distance between London and Toronto creates a less than ideal access situation for a very young child. However, the court must weigh all aspects of a child’s best interests, and in arriving at the best available package of arrangements, it may be that less than optimal access will have to be accepted as part of the result.

[20] The father submitted that the final order was wrong in law because he was left without effective legal remedies for his access. I disagree. First, the trial decision specifically contemplated retention of jurisdiction for at least a year in the OCJ to enforce or change the final order. That is an unusual protection given to the father. Second, it is open to the father, even if the mother has not done it, to seek an order in the English courts to guarantee his rights. Third, I do not have evidence that the English authorities would not give effect to the father’s rights under the Ontario order. If I gave effect to the father’s point, I would be saying that no Ontario court should ever allow a move away without the custodial parent’s first obtaining a “mirror order” in the destination jurisdiction, or posting security. These may be useful precautions but they are not necessary or even appropriate in all cases.

[21] In fact, the father has brought motions to secure access, both in the OCJ last February and while the appeal was pending in this court, and has come away with access orders that have been obeyed by the mother.

[22] The father has complained about the mother’s attitude to his access, even saying that the trial judge misapprehended the mother’s willingness to follow through on her access obligations. He pointed to the mother’s closing submission at the trial as proof that the judge failed to see things as they were. It may be the mother’s closing submission was an example of overreaching by her lawyer, but the mother’s evidence (not her lawyer’s submission) was what mattered, and the trial judge found, based on it, that she could be relied on to facilitate access. It may be that the mother has not been as flexible or cooperative as the father would have liked since the final order was made, but that does not mean the trial judge was wrong in law in accepting her evidence.

[23] The trial judge evaluated the law, the parties’ plans, and the evidence before her in almost 100 paragraphs of her reasons. She carefully weighed the options and came up with the best available overall conclusion, in light of her appreciation of the evidence before her. There was evidence on the basis of which she could reasonably draw the inferences and make the findings and conclusions she made.

Trial unfairness

[24] The father complained that at the trial, he was constantly taken by surprise when the mother tendered as exhibits, one after another, over 40 documents, photographs and videos that had not been provided in advance of the trial. He pointed to a number of instances of this in the trial transcript. At no time did the father seek a long adjournment of the trial to review the evidence, nor did he move for a mistrial. This was understandable, as the father wanted a result and did not want to delay the trial, which went much longer than originally planned and took almost three months to complete. The evidence in the form of photographs and videos was of no great consequence. There was a great deal of email correspondence between the parties as well. The emails demonstrated on paper what the trial judge had already seen and heard – the parties did not get along or communicate civilly or effectively. In the end, it was for the trial judge to compensate for the mother’s lawyer’s bad trial practice by giving time where needed, and this she did. On other occasions, the case proceeded with barely a pause for the father’s objection to be noted. If there had been any substantial unfairness in carrying on without a short break or without a long break, I am sure the trial judge would have done what was necessary for the father to be in a position to respond to the surprise evidence. It is not clear that the trial judge exercised improper judgement on any of the occasions when surprise documents were produced. This is not a case where the surprise evidence created unfairness such that this court should intervene.

Wording of the final order

[25] Rule 25 of the Family Law Rules contains the following provisions about how the wording of an order is determined.

SETTLING CONTENTS OF DISPUTED ORDER

(5) Unless the court orders otherwise, a party who disagrees with the form or content of a draft order shall serve, on every party who was served under subrule (4) and on the party who served the draft order,

(a) a notice disputing approval (Form 25E);

(b) a copy of the order, redrafted as proposed; and

(c) notice of a time and date at which the clerk will settle the order by telephone conference.

TIME AND DATE

(6) The time and date shall be set by the clerk and shall be within five days after service of the notice disputing approval.

DISPUTED ORDER — SETTLEMENT BY JUDGE

(7) If unable to settle the order at the telephone conference, the clerk shall, as soon as possible, refer the order to the judge who made it, to be settled at a further telephone conference, unless the judge orders the parties to come to court for settlement of the order.

CHANGING ORDER — FRAUD, MISTAKE, LACK OF NOTICE

(19) The court may, on motion, change an order that,

(a) was obtained by fraud;

(b) contains a mistake;

(c) needs to be changed to deal with a matter that was before the court but that it did not decide; … .

[26] In this case, the parties’ competing drafts of the final order embodying the trial decision came before the trial judge for resolution. When the parties submitted their draft orders to her, she was not functus officio – that is, she had not lost her authority to rehear any part of the case on its merits and modify her decision, to the point of changing it substantially or even reversing it – because the final order had not yet been signed. Until the order resulting from a hearing is signed, the presiding judge remains seized of all issues. The legal concept of functus officio allows that, even after a final order is signed, the judge can still correct slips or errors in it so as to ensure that the order properly reflects the decision of the court as intended. See Chandler v Alberta Association of Architects, 1989 41 (SCC), [1989] 2 SCR 848. Rule 25(19) of the Family Law Rules, like rule 59.06 of the Rules of Civil Procedure, gives the court the further power to add terms to an order in relation to matters that were before the court, but were not decided by the court.

[27] In this case, while still seized with jurisdiction over the issues in the case, the trial judge was presented with a number of terms proposed by the father that were intended to clarify the trial judge’s decision, alter some of the terms of the decision, and make the formal order of the court more complete, consistent, and workable. For example, the father wanted the order to specify the maximum duration of his access, rather than leave it unstated. The trial judge in her endorsement of March 6, 2014 commented that the father’s draft order was “an improvement”. However, she declined to give effect to any of the father’s proposed new wording or terms, even though preferable, purely because the mother had not consented to them.

[28] With respect, once a judge has to deal with a dispute over whether a custody or access order properly embodies the court’s decision, or needs to be changed or supplemented in some fashion in order to be workable or enforceable, the judge should not stop at the lowest common denominator of what both parties consent to. The judge needs 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, and if so, then the judge needs to hold any necessary hearing or entertain the submissions. The judge needs to decide which, if any, of the proposed corrections, alterations or additions should be adopted, with or without agreement of the parties, so that the order is correct, workable, enforceable, and as complete as the judge considers desirable. Armed with the judge’s decision on these points, the parties should then be required to go through the process of redrafting and obtaining approval of the revised order.

[29] Accordingly, the order of November 13, 2013, as signed on March 5, 2014, is remitted 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. 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.

[30] This does not prevent the trial judge from exercising any other jurisdiction she has, including the power to hear motions to enforce or change the final order.

Father’s access in July, 2014

[31] Finally, I must determine whether the father’s access in July, which began and ended in London, but continued in Toronto and Hawaii, discharges the mother’s obligation for one of the two access visits under paragraph 5(b) of the order of November 13, 2013. The key words of that paragraph are that the mother “shall make [the child] available in Toronto for access at least twice a year for at least three weeks.” This wording is in contrast to the language of paragraph 5(d), which says, “The father may visit [the child] in London as often as possible. …” Paragraph 5 does not authorize visits by the father outside London, except under paragraph 5(b). The question is whether the mother, by agreeing to have the father pick the child up in London and return her to London, at his own expense, was making the child “available in Toronto”. The ordinary meaning of those words would be that the mother was responsible for transporting the child to Toronto, for purposes of the father’s access. This she did not do. However, she did make the child available to travel to Toronto for the father to have access for more than three weeks.

[32] I think that the July access visit was within the spirit of paragraph 5(b), as satisfying the mother’s obligation to provide the father with access in Toronto. The father does have a genuine issue with respect to the cost of travel for himself and the child between London and Toronto. My ruling is that the July access visit qualifies as one of the two visits required by paragraph 5(b) of the final order, but the mother is responsible for reimbursing the father for the actual cost of travel for himself and the child between London and Toronto. The amount and manner of reimbursement are referred back to the Ontario Court of Justice for determination by the trial judge or such other judge as is assigned to deal with the financial issues between the parties.

Costs

[33] Costs may be dealt with initially in written submissions of not more than five pages, plus bills or billing summaries and authorities. The father is to go first, and he may serve a reply submission of not more than three pages. Either party may ask the trial coordinator to schedule an oral costs hearing of 30 minutes, after written submissions are exchanged.

Perkins J.

Date: September 18, 2014