Court File and Parties
COURT FILE NO.: FS-16-21082 DATE: 20180912 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Pedro Alves (Appellant/Responding Party on Motion) AND: Julia Quintana Londran (Respondent on Appeal/Moving Party)
BEFORE: Justice Kristjanson.
COUNSEL: Mr. Alves, appearing on his own behalf Ms. Pamila Bhardwaj, for the Respondent
HEARD: September 4, 2018
Endorsement
[1] This is a motion brought by the Respondent Ms. Londran to: (1) dismiss Mr. Alves’ appeal from the July 28, 2016 trial decision of Justice Spence of the Ontario Court of Justice for delay, and (2) continue an interim order for supervised access by the father, pending a motion to be brought in the Ontario Court of Justice to vary the existing access order.
[2] Following a seven day trial, Justice Robert J. Spence released reasons for judgment on 28 July 2016 granting custody of the child, M., then four years old, to the mother and providing access to the father. The father filed a Notice of Appeal dated August 26, 2016. The Appeal Record has not yet been filed. The father today indicated he intended to file that record within three weeks, more than two years from the date of the trial decision. The child has been living with his mother since the decision.
[3] In September, 2017 the mother brought a motion to suspend the father’s overnight access seeking supervised access. Justice Stewart initially made an interim order in September, 2017. That order was continued by Justice Gilmore until April 25, 2018 with reasons dated October 24, 2017. Her reasons for granting the supervised access order are reported at 2017 ONSC 6396, paras. 18-27.
[4] In October, 2017, the applicant advised the court that he had all of the transcripts and would be in a position to perfect the appeal by January 31, 2018. Justice Gilmore ordered that the applicant was to perfect his appeal by January 31, 2018 failing which the respondent could bring a motion for dismissal for delay. Justice Gilmore ordered costs in the amount of $1,500 for the motion, due and payable forthwith. Those costs have not yet been paid.
[5] Justice Mesbur continued the supervised access order on April 24, 2018 until the hearing of the motion to dismiss the appeal for delay. Mesbur, J. directed that the respondent’s motion materials seeking to dismiss the appeal for delay were to be re-served on the appellant father by April 25, 2018. The father was given until May 7, 2018 to file responding materials. He did not file any responding materials.
[6] On May 24, 2018, I adjourned the motion to dismiss the appeal at the request of the appellant. At that time I provided Mr. Alves with a copy of Children’s Aid Society of Toronto v. T.L., 2016 ONCA 146, and advised him that the legal test for a motion to dismiss for delay was set out at paragraphs 6-7. I advised him that he would have to file evidence on these factors by way of affidavit. I directed that Mr. Alves was to serve and file his responding affidavit and factum by June 7, 2018. I specifically advised him that a sworn affidavit in proper form, with evidence, was to be filed by June 7. The father did not file any affidavit evidence, or any other materials.
[7] On May 24, I ordered Mr. Alves to pay costs of $400, fixed and payable in ten days. Those costs have not yet been paid.
Motion to Dismiss for Delay
[8] The test to be applied on this motion to dismiss the appeal for delay is set out in Children’s Aid Society of Toronto v. T.L., 2016 ONCA 146 at paras. 6-7:
[6] The test for dismissing an appeal for delay in civil actions was succinctly stated by Weiler J.A. in Paulsson v. Cooper, 2010 ONCA 21, at para. 2:
The factors a court should consider in deciding whether to grant this type of motion are well-known. They are: whether the applicant had an intention to appeal within the time for bringing an appeal; the length of the delay, and any explanation for the delay; any prejudice to the respondent caused by the delay; and the justice of the case. This last factor is most important and requires a consideration of the merits of the appeal.
[7] An added element in family cases involving children is the effect of delay on the best interests of the child. Stability and finality in custody issues are very important for children, especially younger children, and this too must be taken into account is assessing delay….
[9] While it is clear that Mr. Alves had an intention to appeal and filed his notice of appeal in September, 2016, he has failed to take steps as ordered to perfect his appeal. Justice Gilmore ordered him to perfect the appeal by January, 2018 after Mr. Alves indicated to the court that he could do so by that date. He has not done so. Today, he has told the court that he anticipates he could be ready to file the appeal record in three additional weeks, or September, 2018. Mr. Alves, although advised by the court as to the requirement to file affidavit evidence on the factors relevant to the motion to dismiss for delay, chose not to file any evidence. Therefore, there is no explanation for this significant delay.
[10] The child M was four years old when the custody order was made. He is now six years old. In this case, I place great weight on stability and finality on custody issues, given the tender age of M. The excessive delay contributes to uncertainty regarding the custody of M., which is undesirable and prejudicial to the mother.
[11] I also consider the justice of the case, which includes the merits of the appeal, as well as unpaid costs orders. Justice Spence had awarded $45,000 in costs on the trial. Since that time, there have been three additional unpaid costs awards. Justice Diamond in October, 2016, directed the father to pay the mother $3000 in costs payable forthwith. That amount is unpaid. Justice Gilmore awarded the mother $1500 in costs in October, 2017 payable forthwith. Those costs are unpaid. In June, I ordered costs of $400 fixed and payable in ten days. Those costs are unpaid. Thus, not including the trial costs, Mr. Alves has failed to pay $4900 in costs, together with interest, displaying an unwillingness to abide by court orders. This failure to comply with costs orders is of great concern, coupled with the two year delay in perfecting the appeal.
[12] Since Mr. Alves did not file a factum or any evidence on this motion, the only method I have of determining merit is to consider the Notice of Appeal and oral submissions made by Mr. Alves, together with the trial decision below. Mr. Alves submits that there are no less than 174 errors made by Justice Spence, including errors of law, errors of fact, and errors of mixed fact and law. Although he made submissions on fraud, perjury and conflict of interest by the respondent, her counsel and some of her witnesses at trial, as well as the OCL, these are bald allegations not supported by evidence. It appears that at least some of these arguments were raised at trial and dismissed by the trial judge (see Alves v. Londran, 2017 ONCJ 318 at paras. 15-19, and Alves v. Londran, 2016 ONCJ 466, paras. 138-141 for example), although in the absence of evidence on this motion, it is difficult to determine. On this motion, Mr. Alves continued his threats against Ms. Bhardwaj, counsel for the respondent, which Justice Spence identified were an issue at trial.
[13] On the record before me, I cannot and do not find that the existence of these bald allegations of fraud, perjury or conflict of interest make the appeal “meritorious”, and do not find any other alleged errors as set out in the Notice of Appeal to be “meritorious.”
[14] Justice Spence acknowledged that M. had been living with the father, who was capable of meeting M.’s instrumental needs. The heart of Justice Spence’s decision, which led him to change custody from the father to the mother, was his assessment based on the evidence before him that the mother was better able to recognize M’s needs, to facilitate the meeting of those needs, and was prepared to better facilitate the active involvement of the other parent in M’s life. He found that the mother was more focused on M.’s needs than the father. He found that the father was dismissive of the mother, and wanted to cut her out of M.’s life. There is nothing in the record before me indicating that Justice Spence made a palpable and overriding error of fact or mixed fact and law in reaching these conclusion on the evidence before him. The legal test applied by Justice Spence is correct. Thus, I do not find that there is sufficient merit to justify the two year delay in bringing the custody appeal.
[15] For all these reasons, I dismiss the appeal for delay, with costs to the respondent mother.
Issue #2: Continuation of Supervised Access Pending Motion to Change in OCJ
[16] Ms. Londran’s counsel indicates that Ms. Londran is bringing a motion to change access in the OCJ. Since the father had been unwilling to provide his new address to the mother, she has brought a motion for substituted service, by e-mail. Today in court, the father indicated that his mailing address for the time being is at his mother’s place, where he stays from time to time, sharing a room with his 19 year old son. Order to go validating service by e-mail, and permitting future service by e-mail. The respondent may serve hard copies of materials, if she wishes, at Mr. Alves’ address at his mother’s house, until he files a change of address with the court.
[17] Justice Gilmore indicated a number of concerns that led her to continue supervised access, including the father’s access in a hotel, the father’s anger and hostility toward the mother which interfered with his conduct in relation to M., and disconcerting text messages sent to the mother. Justice Gilmore found at para. 26 that the father had difficulty focusing on child related issues because “he is consumed with his anger and hostility towards the respondent and her success at trial”, and “the anger has manifested itself in behavior that is affecting the child.” She ordered supervised access to continue as a result, to “provide a mechanism for an objective observation of the applicant’s behavior.” The father has provided no responding evidence on this motion, and the mother’s evidence is that the father has not arranged supervised access that would provide a mechanism for an objective observation of the father’s behaviour.
[18] The mother has provided additional evidence subsequent to Justice Gilmore’s October, 2017 decision.
[19] The Catholic Children’s Aid Society confirmed as of April 5, 2018 that they had an open file. The CCAS identified concerns that Mr. Alves could not provide a safe proper living arrangement during visits, stating:
[M.] confirmed that at his father’s house, there were wires on the floor and his father would put two wires together for Hydro to be restored; he also described the dogs feces smell in the apartment. We have learned that Mr. Alves was evicted from that unit and his current residence is unknown. [M.] also reported to be sleeping in the car with his father on more than one occasion when he was taken for overnight visits. It was also confirmed that [M.] was exposed to ongoing post – separation caregiver conflict.
[20] The mother’s evidence is that the father had inappropriate conversations with M., did not make arrangements to see M. in a supervised setting, and would not advise the mother of his living situation. Thus, the concerns identified by Justice Gilmore remain, and the father has not taken steps to obtain the evidence of an objective third party observer that would assuage concerns about the father’s conduct in relation to M.
[21] I therefore extend the father’s supervised access for a further 8 months or until a further order of the Ontario Court of Justice, to allow the father to obtain a proper report or observational notes from a supervised access centre. The father is to keep the mother and this Court apprised of changes in his address for service, including changes in his e-mail address.
[22] The Respondent mother is entitled to her costs of this motion. Brief written submissions of no more than 3 pages, plus a costs outline, may be submitted to my attention by September 17th. The father may file responding costs submissions, no more than 3 pages, by September 24th.
[23] The father’s approval of the Order is dispensed with.