Court File and Parties

COURT FILE NO.: FS-18-002862 DATE: 20181004 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Nalita Ramsingh, Applicant/Respondent AND: Jamshad Khan, Respondent/Appellant

BEFORE: F. L. Myers, J.

COUNSEL: Ingrid van Weert, for the Respondent

Endorsement

The Appeal

[1] The appellant Jamshad Khan appeals from the decision of Curtis J. dated April 27, 2018 denying him leave to commence a Motion to Change the custody and support orders made by Curtis J. on September 20, 2017.

[2] The judge’s reasons were quite brief and are reproduced in full:

Motion is dismissed.

All the evidence provided addresses the issue of why the father thinks the orders made September 20, 2017 are wrong. That is not a matter for a Motion to Change. It is a matter for an appeal. As the father has a lawyer the Court should not have to point this out. No evidence was provided as to any change in circumstances since the orders were made.

The orders made March 16, 2017 are temporary orders. The final orders were made September 20, 2017.

[3] For the reasons that follow, the appeal is dismissed.

Background

[4] Justice Curtis was the case management judge who was overseeing the family law proceeding between the parties. On March 16, 2017, she made a temporary order that, among other things, required the appellant husband to pay temporary child support based on an imputed minimum wage. She also required him to serve and file his answer by April 18, 2017 on a peremptory basis. The order also required the appellant to serve and file a number of documents at least seven days before the next court date. Among the documents listed in that provision was a “current sworn financial statement (form 13)”. The judge also ordered the appellant to pay costs of that day to the applicant wife in the amount of $2,500.

[5] The appellant served his answer on a timely basis but he was not allowed to file it by the court staff because it was not accompanied by a sworn financial statement as required by the Family Law Rules. Rather than just filing a financial statement to enable him to file his answer, the appellant took the position that the judge had waived the requirement that a sworn financial statement also be filed with his answer when she ordered him to file a current sworn financial statement at least seven days before the next court date.

[6] A case conference was held on July 12, 2017. The judge noted in her endorsement that the costs of $2,500 were not yet paid and that the appellant was in default (because he had not filed his answer). The judge wrote:

Mother may be asking for final orders at the next court date.

Mother is entitled to her costs of today Rule 17(18) and Rule 24 (7). One of the purposes of costs is to change behaviour. Father shall pay mother’s costs of today fixed at $800 all in.

[7] Neither party filed a brief for that case conference. Rule 17 (18) provides that costs may be ordered against a party at a case conference where the party fails to file a brief or “otherwise contributed to the conference being unproductive”.

[8] Rule 24 (7) provides:

If a party does not appear at a step in the case, or appears but is not properly prepared to deal with the issues at that step or otherwise contributes to that step being unproductive, the court shall award costs against the party unless the court orders otherwise in the interests of justice.

[9] On September 20, 2017, the judge noted that both costs orders remained outstanding and the husband’s answer was still not filed despite it being served and an extension having been provided months earlier. The judge said that the case had been outstanding for a year and the respondent had had ample time to respond. She denied his request for a further delay and effectively made her temporary orders final. She also ordered:

Father shall not bring a Motion to Change without leave obtained in advance on a Form 14B motion, maximum 2 pp in support not to be served on the other side unless the court orders.

[10] The appellant did not appeal any of the foregoing orders. They are all subsisting orders that are not now subject to question or collateral attack.

[11] Instead, the respondent then sought leave to bring a Motion to Change supported by a two page affidavit dated April 23, 2018. In paragraphs 1 through 4 of the affidavit, the respondent complains about the orders made against him that he did not appeal. Only para. 5 of the affidavit deals with the merits as follows:

I have now borrowed money and paid the costs ordered by Justice Curtis. I would like to bring a Motion to Change so that there can be a hearing on the merits with respect to [the child’s] care. He is severely autistic and his skills have been regressing. I do not believe that he is receiving appropriate care from the Applicant. I don’t work and am available to give [the child] more attention and care than the Applicant can. It is critical for [the child] that the question of who should be his caregiver is decided on its merits. In addition, I cannot pay support ordered by Justice Curtis. Support arrears are accumulating. I need a hearing regarding whether income should be imputed to me. Justice Curtis’s Orders are extremely disadvantageous to [the child] and me. I wish to bring a Motion to Change so that there can be a hearing on the merits.

[12] Faced with this affidavit, Justice Curtis declined leave to proceed on the basis set out at the opening of this endorsement.

The Appeal

[13] The appellant has provided no argument concerning the nature or content of legal test for leave to proceed where a leave requirement has been imposed in cases of default that was applicable to his motion for leave. Rather, he argues, again, that Justice Curtis erred in imputing minimum wage to him, erred in awarding costs against him, erred in striking his pleadings, and erred in making final orders on September 20, 2017.

[14] As set out in his affidavit and as argued by counsel, the gravamen of the appeal is that Mr. Khan wants a hearing on the questions of custody and access on the merits to determine what is in the best interests of the child. Mr. Khan argues that since he has paid the two costs awards, his pleadings should be reinstated and there should now be a trial. That ship has sailed. He did not appeal the making of the final orders in the case on September 20, 2017. Those orders resolved the proceeding on the merits. There is no further hearing on the merits available.

[15] The proceeding that is now available is what Mr. Khan asked for - a Motion to Change. But he needs leave to bring that proceeding under Justice Curtis’s September 20, 2017 order. I am prepared to assume that in considering whether to grant leave to proceed, Justice Curtis was required to consider whether Mr. Khan had cured his defaults and whether he advanced a prima facie basis to conclude that there has been a material change in circumstances so as to give an air of reality to his proposed Motion to Change. While he appears to have done the former, he did not do the latter.

[16] Counsel argues that without a trial that resulted in findings of fact on the merits of custody and access, the only relevant circumstance available that can “change” is the payment of Mr. Khan’s outstanding costs. I do not agree.

[17] While there is no trial decision, there were facts and circumstances existing as at September 20, 2017 that were relevant to the issues of custody and access and formed the basis of Justice Curtis’s decision. There was evidence before Curtis J. in the affidavits in the continuing record including, at minimum, the requisite affidavit in support of custody and access under Rule 35.1 if not more.

[18] All of the complaints set out in Mr. Khan’s affidavit were matters that were properly dealt with on or before the September 20, 2017 order that Mr. Khan chose not to appeal. They are not relevant to establish a material change of circumstances. Mr. Khan’s complaint regarding the imputation of minimum wage for his income is also not prima facie evidence of a material change.

[19] Rather than adducing evidence to support a proposed Motion to Change, the appellant sought to re-open the trial process. That relief is a collateral attack on Justice Curtis’s orders and is simply no longer available. I see no error of law and no palpable and overriding error of fact or mixed fact and law in the Judge’s decision. It also seems to me that the decision to grant or deny leave may involve the exercise of judicial discretion. If that is so, it is subject to deference. An appeal court cannot intervene in a discretionary decision absent an error in principle or unless the decision is clearly wrong. As I agree with Justice Curtis’s decision, I see no error of the requisite quality to allow appellate intervention.

[20] Therefore, the appeal is dismissed.

F. L. Myers, J. Date: October 4, 2018