COURT FILE NO.: FS-12-18288
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
YAW SCOTTY AFFUL
Applicant
– and –
MELODY LAING
Respondent
Applicant – In Person
Corrine Long, for the Respondent
HEARD: December 2, 2013
Overview
1The father of Akousua Melody (born September 27, 2009) appeals the final order granting the mother “sole custody” of Akousua, not on consent, at a case conference. Bovard J. (the “case conference judge”) of the Ontario Court of Justice granted the final order on August 7, 2012.
2The father challenges the case conference judge’s authority to make a final order under Rule 17(8)[i] and Rule 2 [ii] of the Family Law Rules, O. Reg. 114/99.
3Consistent with my ruling in A.B. v. N.L.A., 2013 ONSC 2990, [2013] O.J. No. 2861, I find that the final order made at the case conference must be set aside. The process of the case conference was inconsistent with the Family Law Rules and its objectives.
Background
4The father commenced the initiating court case at the Ontario Court of Justice by way of Application on November 29, 2010 seeking “joint custody” of the child. The mother responded and sought “sole custody.”
5The mother reported certain incidents between the parents to the police. The father was charged with two counts of criminal harassment. (February 1, 2011 and March 29, 2011 are the dates of the alleged incidents.)
6The father requested that both matters (criminal and family) be referred to the Integrated Domestic Violence Court (“IDVC”). As a result, the matter was transferred to the IDVC. The case conference judge was assigned as the case management judge at 311 Jarvis Street, Toronto, Ontario.
7The Ontario Court of Justice website describes the IDVC as follows:
What is the Integrated Domestic Violence Court?
The Integrated Domestic Violence Court provides one court where families can have their family cases (excluding divorce, family property and child protection) and domestic violence criminal charges heard before a single judge.
What cases does the Integrated Domestic Violence Court hear?
Family cases (except divorce, family property or child protection) from either the court at 47 Sheppard Avenue or the court at 311 Jarvis Street, Toronto.
Summary conviction criminal cases where the charges involve domestic violence, the accused is out of custody and the case was originally scheduled to be heard at Old City Hall, Toronto.
Benefits of the Integrated Domestic Violence
The family will appear before a single dedicated judge for both the domestic violence criminal charge and the family (custody, access and/or support) matters.
The criminal and family cases will be heard on the same day in the same courtroom.
The Integrated Domestic Violence Court Judge will have more complete information about the family.
Having one Judge will enhance consistency between family and criminal court orders.
The Integrated Domestic Violence Court Judge will be able to monitor the family. This will increase accountability of the accused and enhance the complainant’s safety.
The Integrated Domestic Violence Court will include a Community Resource Coordinator, who will assist the parties in finding resources and services to assist with their problems.
If a party qualifies for legal aid, Duty Counsel will be available for the family cases and, for the accused only, for the criminal cases.
The family will have access to family supports and services including Family Law Information Centre (FLIC) matters and court counter services.
There will be access to support in the criminal cases including the Victim/Witness Assistance Program (V/WAP), Partner Assault Response (PAR), security, and court counter services.
Delays in hearing the family and criminal matters should be reduced.
8These are laudable goals and reminiscent of the original jurisdiction of the first Unified Family Court, where one court addressing all family issues would also address certain limited summary offence criminal cases between defined individuals, such as the parents here.
9On March 8, 2011, prior to the charges, Zuker J. granted a temporary order for custody in favour of the mother. The Appeal Book does not contain this order, the endorsement volume, or the case history, including the period prior to the transfer of the case from the Ontario Court of Justice (47 Sheppard location) to the IDVC. This was the order that was in place until the order now under appeal.
10I reviewed the transcript of the August 17, 2012 case conference. I note that the transcript refers to an “access order” made May 11, 2011 by Zuker J. Having all orders as part of the Appeal Record would help me understand whether the orders were made on consent and at what event.
11In considering this appeal, I reviewed written submissions, heard oral submissions, and reviewed the following:
The father’s Application dated November 29, 2010. I note a first appearance date for January 5, 2011 at 47 Sheppard Avenue.
The mother’s Answer dated December 22, 2010.
The father’s Form 35.1 Affidavit in Support of Custody or Access dated November 29, 2010.
The mother’s Form 35.1 Affidavit in Support of Custody or Access dated December 22, 2010.
The father’s Amended Affidavit filed April 19, 2011.
The father’s affidavit of November 25, 2011 apparently in support of his motion seeking “shared custody with increased access.”
The mother’s reply affidavit of December 20, 2011 opposing the father’s motion.
The father’s Case Conference Brief dated August 9, 2012.
The mother’s Case Conference Brief dated August 13, 2012.
The Oral Reasons for Judgment of Waldman J. dated May 25, 2012 regarding the criminal charges. I note that the father was represented by counsel.
A copy of Bovard J.’s endorsement dated August 17, 2012.
The transcript of the case conference before Bovard J. dated August 17, 2012.
12From the Form 35.1 affidavits, I note neither party identified any child protection involvement, criminal convictions, violence, or abuse. (These 2010 Form 35.1 affidavits were never updated.)
13The mother’s Answer dated December 22, 2010 alleges the father was aggressive and intimidating about issues concerning the child’s name and access. Her Answer also indicates that she called the Children’s Aid Society in the fall of 2009, and they visited her in November 2010.
14The mother’s affidavit of December 20, 2011 informs me as follows:
The police were involved when the parties separated on November 11, 2010.
At the first appearance date of January 5, 2011, a case conference was scheduled for March 8, 2011.
On January 28, 2011, the parties reached a consent interim access order. The father would have the child for four hours on Saturdays, and on Monday and Wednesday evenings.
On March 8, 2011, the mother was granted “interim sole custody” and the access was modified.
After the father brought another motion in April seeking custody, the parties reached a consent order on May 11, cancelling Monday and Wednesday visits, maintaining Saturday visits, and adding alternate Sundays for four hours.
The father’s motion to increase access was dismissed on August 25, 2011.
On September 7, 2011, the case was transferred to 311 Jarvis Street.
The child’s name was also identified as an issue.
15I reviewed the father’s case conference brief for August 17, 2012 and note the following:
The father refers to temporary orders of May 11, 2011 (access), June 8, 2012 (child support), and March 8, 2011 (custody).
In identifying the issues of custody, access, child support, and “Change of Child’s Name,” the father “acknowledges that there is high conflict between the parents” while seeking “joint custody or parallel parenting.”
He suggests that the “mother’s refusal to cooperate with him regarding parenting issues is only being done for purposes of frustrating a joint custody arrangement.”
On page 4, paragraph 13, the father indicates yes to the court making a temporary or final order on issues of custody, access, and child support.
16I also reviewed the mother’s case conference brief for August 17, 2012:
She refers to the same interim orders and adds a December 22, 2011 order that she advised addressed costs and other orders.
She identifies custody, interim access, child support, the father’s financial statement, and costs as the issues for “This Case Conference.”
She sets out her concerns about access, lateness, where the father exercises his access, harassing the child about her name, and the father not following the child’s routines. She asks for exchanges at a supervised access centre.
In paragraph 13, she checks off that she wants the court to make a temporary or final order and specifies that she wants a “final sole custody order.”
The Parties’ Positions
17The father’s Notice of Appeal includes the following grounds of his appeal:
The Honourable Justice erred in making a final custody order at a Case Conference without prior notice to the parties.
The Honourable Justice erred in making a final custody order at a Case Conference without consent of the parties.
The Honourable Justice erred in making a final custody order at a Case Conference without sufficient evidence to support the final order and/or without inviting the parties to file sufficient Affidavit evidence in support of their custody claims.
The Honourable Justice erred in failing to take into account the provisions of Rule 17(8) of the Family Law Rules with respect to the Orders that the Court can make at a case conference.
18The balance of the grounds speak to the merits if a judge were to consider such issues as alleged alienation, the appropriate disposition of a parenting case, and options such as parallel parenting, joint custody, and best interests on a record such as was available at a case conference.
19In responding to the appeal, the mother’s counsel seeks to distinguish this case from A.B. v. N.L.A. She argues that, unlike A.B. v. N.L.A., the father in this case did not seek an adjournment; he was represented by counsel; and the father’s counsel did not object or question the judge’s jurisdiction to make a final order for custody.
20In addition to distinguishing A.B. v. N.L.A., the mother’s counsel submits the following in response to the appeal:
The case conference judge had the jurisdiction to make a final custody order. The Family Law Rules permit final orders at a case conference.
The order was consistent with the IDVC’s objectives.
The final order was in the child’s best interests.
21The mother’s counsel submits that the Case Conference Brief notified the father of the order sought; the father had opportunities and responded to the case to meet regarding custody; and case law required the case conference judge to make such an order. She relies on Rule 17(8)(b.1), Rule 2, Chand v. Chand, 2010 ONSC 1599, [2010] O.J. No. 1137, and Robinson v. Morrison, [2000] O.J. No. 2973 (S.C.).
22While I referred to what was before me I do not know what was before the judge at what was a case conference and not a motion. The earlier affidavits appeared to have been prepared for an earlier motion and are not referred to in the conference material. Affidavits at case conferences would be inconsistent with what is appropriately before a judge for a case conference.
Analysis
23The case conference as conducted by the case conference judge in this case is markedly different from A.B. v. N.L.A. However, I reach the same conclusions as I did in A.B. v. N.L.A. as to the appropriate application of the Family Law Rules. I therefore allow the appeal as I did in A.B. v. N.L.A. Making final substantive orders at conferences, absent consent, is inconsistent with purposes of conferences and potentially encourages the affidavit wars the Family Law Rules sought to eliminate.
24On August 17, 2012, the case conference judge commenced the case conference by asking counsel whether they made any headway resolving the issues. The father’s counsel identified that the parties were stuck on the father’s request for increased access.
25The criminal case had been resolved. The family case was essentially on hold awaiting the outcome of the trial. Given the goals of the IDVC process as noted above, I was surprised that the same judge was not dealing with the case; I specifically note the following from the Ontario Court of Justice website:
Benefits of the Integrated Domestic Violence
The family will appear before a single dedicated judge for both the domestic violence criminal charge and the family (custody, access and/or support) matters.
The criminal and family cases will be heard on the same day in the same courtroom.
The Integrated Domestic Violence Court Judge will have more complete information about the family.
Having one Judge will enhance consistency between family and criminal court orders.
The Integrated Domestic Violence Court Judge will be able to monitor the family. This will increase accountability of the accused and enhance the complainant’s safety. [Emphasis added.]
26The case conference transcript discloses a process where the case conference judge engages counsel in a discussion, expresses views, and seeks a consensual outcome. As I understood it, this was not the first case conference and there was yet another one planned to continue on the access issue before the case conference judge. While the father spoke what is discussed at a case conference, not under oath cannot be considered evidence.
27While I will not comment on the outcome of the case conference on the merits, I find that the process is inconsistent with the Family Law Rules.
28In A.B. v. N.L.A., I wrote the following:
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 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.
29The case conference judge here, as in A.B. v. N.L.A., saw the role of the case conference judge as “imposing solutions on the parties.” After hearing access proposals from counsel, the case conference judge stated the following at pages 17-18 of a 56-page transcript:
I think that some progress is sort of coming through. It is going to continue to be a somewhat painful process though I can tell because the parties are still not really coming together very easily on these issues. Everything seems to have to be a struggle which is unfortunate, but that’s the situation we have to deal with. I recognize that [the father] wants a lot right away. I guess it’s only natural, he’s a father. He wants to see his child. I totally understand that, but all this is happening in a very specific context that I have to take into consideration. There are a lot of different factors at play here. I’m sure you realize that. Everybody can’t have everything they want. And the unfortunate part about not agreeing is that The Court is placed in a position of imposing solutions on the parties. I try to do that taking into consideration as much as I can any agreement or consent that the parties show me, but in the end if I’m the one that has to make the decision, I’ll make it and probably neither party is going to be totally happy, but that’s the situation that I see before me.
30The judge then reviewed the positions on access discussed at the conference and concluded that he would make a temporary access order. Counsel then continued to discuss what the judge suggested he would do.
31The conference then turned to child support issues because the father’s Employment Insurance documentation evidenced a change of income.
32The conference then finally turned to the issue of a final custody order objected to by the father. As in A.B. v. N.L.A., there was a temporary order for custody to the mother. While in A.B. v. N.L.A. there was an Office of the Children’s Lawyer report, the only new acknowledged event in this case was the father’s acquittal on criminal charges. The case conference while recorded was not a place to take evidence and apart from the reasons for judgment there was no new evidence and no evidence presented by updating affidavits. I also remain uncertain what material was before the judge as I referred to earlier.
33The mother’s counsel’s submissions to the case conference judge speak to the process. At pages 36-37 of the case conference transcript (after the discussion about the parents’ positions on a final custody order), the mother’s counsel, Ms. Long, agrees with the case conference judge and says the following:
MS. LONG: [E]ven if what [the father’s] lawyer has just said, every word of – even if it were every word true, which my client would deny, an on top of that in their own materials, [the father] acknowledges that this is a high conflict case. That he acknowledges that there is high conflict between the parent – parents. I certainly cannot see any Court forcing these two to work together. … it is highly, highly, highly unrealistic to think that – that a Court after trial is going to make such an order. So, we certainly – we – we don’t want to be put to a trial to have to prove that. We’d like him to or The Court to make that order now. (Emphasis added.)
THE COURT: You want a final on custody?
MS. LONG: Yes, that – that is what I’m requesting. I think that we should take this custody issue off the table…
THE COURT: And what are your submissions on whether or not there should be a motion for final custody?
MS. LONG: Well … I suppose [the father and his counsel] could force us to do that. I hope that they wouldn’t. I think if – if we were successful, there would be significant cost consequences in either, either by way of a motion or by way of a trial on the custody issue.
34The father’s counsel spoke to the merits of the custody position. However, it appears that the father’s counsel had no opportunity and did not speak to the issue of whether to “force” the motion or have a trial, as the mother’s counsel put it. If there was no triable issue then the summary judgment motion process was the appropriate method and failing summary judgment, a trial.
35There was no urgency to make a final custody order. A temporary custody order was in place. The parties had already waited two years to resolve the issue, mainly awaiting the disposition of the criminal case. Mother’s counsel in fact anticipated that unless there was settlement the father’s counsel could “I suppose [the father and his counsel] could force us to do that. I hope that they wouldn’t.”
36The Family Law Rules do not do away with the requirements for evidence as I set out in A.B. v. N.L.A. Although I understand the desire to conclude matters, I find that disposing of matters on a final basis at a case conference is akin to a summary judgment but without the same procedural, evidentiary, or due process requirements.
37I do not intend to set out my entire ruling in A.B. v. N.L.A. Nevertheless, I repeat the following from A.B. v. N.L.A in the context of this case:
(Full quoted passages 100–121 reproduced exactly as above.)
38As there may have been missing material, the evidence before the case conference judge perhaps did not include up-to-date affidavits and while the reasons for judgment of the criminal trial may have been there, that is not evidence. The case conference briefs are not of themselves evidence and the Family Law Rules require them to be returned after a case conference. I am uncertain why there was a continuing series of conferences when the parties were not working towards settlement. Conferences were intended to avoid affidavit wars.
39I want to be clear that the case conference in this case is different from the case conference in A.B. v. N.L.A. Nevertheless, the use of the case conference and a final disposition in this case results in an incorrect and palpable error in process and application of the Rules, as I concluded in A.B. v. N.L.A.:
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.
Disposition
40The appeal is allowed. I refer the case back to the Ontario Court of Justice. I would direct that the next step before a judge assigned by the Ontario Court of Justice Administrative Justice. That judge can also determine a location, given the disposition of the criminal charges against the father. This does not preclude either party to proceed as they deem appropriate and as the Family Law Rules otherwise allow.
41In the course of seeing counsel and the father on this appeal, I suggested that they consider onsite mediation or even a conference to resolve their issues. They did not accept that suggestion. I suggest that the parties still consider mediation.
42This is not a case for costs.
Czutrin J.
Released: January 9, 2014
COURT FILE NO.: FS-12-18288
DATE: 20140109
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
YAW SCOTTY AFFUL
Applicant
- and -
MELODY LAING
Respondent
REASONS FOR JUDGMENT
CZUTRIN J.
Released: January 9, 2014