COURT FILE NO.: FS/17/00021671/0000

DATE: 20181012

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Florlyn Angelica Hidalgo, Applicant/Respondent on Appeal

• and -

Jon-Taine Hall, Respondent/Appellant on Appeal

BEFORE: Croll J.

COUNSEL: N. Waldman, for the Applicant/Respondent on Appeal

A. Dattu, for the Respondent/Appellant on Appeal

HEARD: October 2, 2018

ENDORSEMENT on appeal

[1] The Appellant, Jon-Taine Hall (the “Father”) and the Respondent, Florlyn Angelica Hidalgo (the “Mother”) have one child, Ayden Xavier Hall, born February 13, 2014. The Father appeals the order of the Ontario Court of Justice dated June 20, 2017 which granted the Mother sole custody and primary residence of the child, along with other incidents of custody.

[2] The Father submits that the June 20, 2017 order should be set aside for the following reasons:

(i) the hearing judge erred on the material facts;

(ii) the hearing judge was misled by the Mother, which prejudiced the Father;

(iii) the hearing should not have proceeded because it was prejudicial to the Father as he needed more time;

(iv) the matter should have been dealt with by trial and not a focused hearing, and been conducted by a judge who was not the case management judge; and

(v) a lawyer from the Office of the Children’s Lawyer (the “OCL”) should have been appointed to assess the best interests of the child.

[3] The Father also submits that the costs of $8,000 awarded against him were excessive.

Background Facts

[4] The parties were in a relationship from 2013 until approximately November 15, 2016, at which time the Mother ended the relationship.

[5] When the parties began dating in 2013 and when the Mother became pregnant with Ayden, she thought that the Father was separated from his wife. She apparently learned shortly after becoming pregnant that the Father was not separated.

[6] The parties never lived together. The Mother has lived with her parents and Ayden since his birth. The Father lives with his wife and his other two children.

[7] When Ayden was about 2 or 2½ years-old, the Father’s wife learned of his relationship with the Mother.

[8] As previously indicated, in November 2016, the Mother ended her relationship with the Father. It was the Mother’s evidence that the Father was very upset and that for the first time, he complained about the Mother’s ability to care for Ayden. He took Ayden’s passport from the Mother’s home.

[9] In mid-December 2016, the Father took Ayden from daycare without the Mother’s knowledge or consent. The Father refused the Mother’s pleas to return Ayden; rather, he told her that Ayden would now be living with him and his other family. The Mother was very concerned about Ayden’s well-being, given his young age and because previously he had spent only two overnight stays with the Father. The Father took the position that he would not return Ayden until “mid-week after Christmas” and demanded Ayden’s health card, social security card and other legal documents.

[10] The Father’s conduct compelled the Mother to bring an emergency motion for custody. The motion was heard on December 22, 2016, although the Father had returned Ayden before that date. On December 22, 2016, a temporary without prejudice order was made addressing access by the Father. The motion was adjourned to January 16, 2017 so that the Father could retain counsel.

[11] On January 16, 2017, on consent, the parties agreed to an access schedule (Wednesday afternoons and Saturdays) and the Father agreed to pay child support of $200 per month based on an imputed income of $25,000. The Father was ordered to pay costs of $1,000, not on consent.

[12] A Settlement Conference was scheduled for March 15, 2017. However, the Father’s counsel did not attend, although the Father had been represented by counsel on January 17, 2017. The motion was scheduled for May 12, 2017.

[13] The motion did not proceed on May 12, 2017 as the Father, who was now self-represented, did not file motion materials by May 2, 2017 as had been ordered. Rather, at the start of the motion, the Father provided an unsworn and undated affidavit and several “exhibits.” A final hearing was scheduled for June 20, 2017, and it was ordered that at that time, evidence-in-chief would be submitted by way of affidavit, and each party would have 30 minutes to cross-examine the other party. Costs of the March 15, 2017 and May 12, 2017 court attendances were reserved to June 20, 2017.

[14] After hearing the evidence on June 20, 2017, the Court made a final order that, among other things, gave the Mother sole custody of Ayden; required that she keep the Father informed about Ayden; and allowed the Father to contact Ayden’s teachers, day care providers, and medical service providers. The order provided that Ayden’s primary residence was to be with the Mother, and set out the parenting time for the Father. It also ordered that the Father pay $200 per month in child support, based on an imputed income of the Father of $25,000. The order also required that the Father pay $8,000 in costs to the Mother, $4,000 of which was to be considered an incident of child support.

Analysis

(i) The hearing judge erred on the material facts

[15] In oral reasons delivered at the conclusion of the hearing, the judge found that:

(i) the Mother had been the primary care-giver of Ayden since birth;

(ii) the Father had prioritized his own family over the needs of Ayden;

(iii) the Father had made allegations to the police and the Children’s Aid Society, alleging “really nasty vile things” that did not raise concerns such that an investigation was warranted (June 20, 2017 transcript, p. 82);

(iv) the Father had missed more than half of the access visits previously ordered; and

(v) the 50-50 parenting arrangement sought by the Father was not child-focused.

[16] Overall, the judge described the Father as engaging in “bullying behaviour” (June 20, 2017 transcript, p. 82).

[17] At the hearing, both the Mother and Father were thoroughly cross-examined, and the judge was unquestionably in the most advantageous position to determine the best interests of Ayden. The Father is unable to point to any serious misapprehension of the evidence, but rather appears to want to reargue the issues. As stated in Van De Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014, in reference to family law cases involving custody, citing Hickey v. Hickey, 1999 691 (SCC), [1999] 2 S.C.R. 518: “Because of its fact-based and discretionary nature, trial judges must be given considerable deference by appellate courts when such decisions are reviewed.” See also Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235.

[18] There is no basis to find that the hearing judge erred in the assessment of the material facts of the case.

(ii) The hearing judge was misled by the Mother, which prejudiced the Father

[19] In his factum, the Father submits that the hearing judge was misled by the Mother which, in turn, prejudiced the Father. In oral submissions, counsel for the Father amplified this written submission by citing excerpts from the Father’s cross-examination of the Mother, where the hearing judge intervened to reframe the Father’s question. The Father’s position is that the judge’s reframing of his questions did not accurately reflect what he wanted to ask and that, by reframing the questions, the judge provided the Mother with legal arguments. I have reviewed the examples cited. I see no prejudice to the Father by the judge’s occasional intervention in his cross-examination of the Mother. By way of example only, I refer to the exchange on page 19 of the June 20, 2017 transcript:

MR. HALL: Q. Also, did you do things such as withhold toys, or drinks and food things, or other treats for him to be agitated when it’s time to come to me?

MS. HIDALGO: A. No, I…

THE COURT: Just stop for a second.

MS. HIDALGO: Sorry.

THE COURT: So, the question is, Do you try and create a situation so the child will be upset for the start of his visit with his dad?

[20] I am satisfied that the hearing judge was trying to clarify and streamline some questions that the Father posed in cross-examination. There is no basis to suggest that the hearing judge was in any way attempting to influence the answers of the Mother or to provide legal arguments to the Mother in the above excerpt, or in any of the other reframing examples cited by the Father. There has been no prejudice to the Father.

(iii), (iv) The hearing should not have proceeded because it was prejudicial to the Father as he needed more time; the matter should have been dealt with by trial and not a focused hearing

[21] I am also not persuaded that proceeding as a focused hearing was prejudicial to the Father because he needed more time, or that a focused hearing was not appropriate. The Father was aware that June 20, 2017 was a final hearing to determine on a final basis the issues of custody and access. He filed his affidavit in accordance with the timelines set out in the order dated May 12, 2017. He received the Mother’s materials for the final hearing, also in accordance with the order dated May 12, 2017. He received the Mother’s affidavit, amended application and final confirmation as to exactly what the Mother was seeking on a final basis.

[22] Further, on May 12, 2017, when the timelines and discussions relating to the final hearing were discussed, the matter was held down to allow the Father to speak with duty counsel, which he did. After the recess on May 12, 2017, the hearing judge indicated that the matter would be set down for a final hearing before herself, to which the Father did not object. The judge specifically stated the following: “…I just feel if we’re not going to knock some issues off the table, I’m going to set it for a focused hearing and give the parties their opportunity to testify and we’re done.” (May 12, 2017 transcript, p.8).

[23] The Father did not object to the focused hearing at the time it was set down, nor did he object on the hearing date. At neither time did the Father indicate that he did not want to proceed until he could retain counsel. The Father was not prejudiced by the hearing proceeding in the way that it did. His attempt to raise this issue now does not meet the conditions set out at para. 35 of Black v. Owen, 2012 ONSC 400, 291 O.A.C. 9 (Div. Ct.) for new issues to be raised for the first time on appeal, namely:

(i) there is a sufficient evidentiary record to resolve the issue;

(ii) the failure to raise the issue at trial was not due to a tactical decision; and

(iii) refusing to allow the argument would not result in a miscarriage of justice.

[24] Coupled with his submission that a focused hearing was not appropriate, is the Father’s submission that the matter should have been heard by a judge other than the case management judge. There is no evidence to suggest that the hearing judge relied on anything discussed in front of her at the settlement conference on March 15, 2017, which was the only conference that the hearing judge conducted. In fact, the Father’s counsel was not present on March 15, 2017, and as a result, meaningful settlement discussions were not undertaken. As well, it is apparent from the transcript that the hearing judge’s conclusions were based on the evidence heard that day. Accordingly, I am not persuaded that in this situation there was any violation of the spirit of Rule 17(24) of the Family Law Rules O. Reg. 114/99: see Bergen v. Sharpe, 2011 ONSC 1930, 98 R.F.L. (6th) 48.

(v) A lawyer from the Office of the Children’s Lawyer should have been appointed to assess the best interests of the child

[25] Finally, the Father submits that a lawyer from the Office of the Children’s Lawyer should have been appointed. Paragraph 30 of the Father’s factum states that a lawyer or clinician from the OCL should have been appointed to determine the best interests of Ayden due to the inconsistencies between the Father’s position, the Mother’s position and the evidence the Father put forward at the hearing. In oral submissions, counsel for the Father described the failure to have OCL involvement as the main point.

[26] Again, the Father never brought up this request prior to the final hearing, nor did he seek this order in his Answer. This request was first made in the documents that were filed by the Father on June 19, 2017, the day before the final hearing commenced. After confirming with the Father that he was seeking the involvement of the OCL, the hearing judge explained that the matter was set down for a final hearing and that the request for OCL involvement would not be granted at this stage, because the custody and access matters should not be delayed any further. The Father did not pursue this issue, and the hearing judge’s decision to proceed without the involvement of the OCL was a proper exercise of her discretion.

[27] In any event, the hearing judge could only have requested that the OCL become involved, not ordered so: Bhajan v. Bhajan, 2010 ONCA 714, 104 O.R. (3d) 368. The OCL’s Guideline headed, “Intake Criteria for Provision of Custody/Access Cases” states that the OCL may not provide services where “the child’s situation would not be improved, e.g. where the issue is ‘joint’ versus ‘sole’ custody, or where an unrealistic time-sharing plan is being sought, or an applicant seeks to change custody to resolve an access problem...”. The Guideline also states that the OCL may not provide services where “a review of the case history indicates… protracted litigation with little possibility of resolution; … [or where] the primary purpose is to obtain evidence to further the litigation”. The hearing judge referred to the Father’s unsuccessful attempts to get the police and the Children’s Aid Society involved (June 20, 2017 transcript, p. 82). Given these Guidelines and the facts of this case, it is unlikely that the OCL would have become involved.

Appeal of $8,000 Cost Order

[28] The award of costs made by the hearing judge covered costs of the conference of March 15, 2017 when the Father’s counsel did not attend; the May 12, 2017 hearing at which the motion could not proceed; and the focused hearing. Rule 24 of the Family Law Rules confirms that a successful party is presumed entitled to costs. The hearing judge reviewed settlement offers made and determined that the Mother’s position was both successful and reasonable.

[29] As stated in Forrester v Dennis, 2016 ONCA 214, 78 R.F.L. (7th) 114 at para. 20, a costs award attracts considerable deference and should not be disturbed absent an error in principle, or unless the award is clearly wrong. As was the case in Forrester v. Dennis, the focused hearing judge’s costs award in this case demonstrates neither of these principles.

Conclusion

[30] For all these reasons, the Father’s appeal is dismissed.

Costs of the Appeal

[31] At the conclusion of oral argument, the parties were asked to make brief cost submissions reflecting a finding that the Father would be successful on the appeal and the alternative finding that the Mother would be successful on the appeal. They did so, and the Mother submitted a Bill of Costs.

[32] The Mother was again successful. I have reviewed the Bill of Costs and considered the provisions of Rule 24 of the Family Law Rules, and in particular, subsection 24(11).

[33] The Father shall pay costs of $9,500 to the Mother, inclusive of disbursements and HST. Of this amount, $4,750 shall be considered an incident of child support and therefore be subject to collection by the Family Responsibility Office.

Croll J.

Date: October 12, 2018