COURT FILE NO.: FS-21-0093-00AP DATE: 2022/02/17

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Children’s Aid Society of the District of Nipissing and Parry Sound Applicant (Respondent on Appeal) – and – M.H. Respondent (Appellant)

Rejean Parisé, for the Applicant (Respondent on Appeal) Geoffrey Wells, for the Appellant

– and – M.D. Respondent (Respondent on Appeal)

Brooklyn Thorpe, for the Respondent Erin Fitzpatrick, for the Child, M.

HEARD: February 9, 2022

REASONS FOR DECISION

Ellies R.S.J.

OVERVIEW

[1] The Children’s Aid Society of the District of Nipissing and Parry Sound (“the Society”) brought a child protection application in the Ontario Court of Justice (“the Ontario Court”) based on allegations of physical abuse by the appellant, M.D. (“the father”) of the child, M. After the COVID-19 pandemic was declared, the proceedings moved to a virtual format. The father refused to participate from that point forward, alleging it was “against the tenets of his faith” to appear other than in person.

[2] Twenty-one months after the proceedings began, at the request of the Society, the motion judge struck the father’s answer and Plan of Care under r. 1(8.2) of the Family Law Rules, O. Reg. 114/99, awarded custody of the child to M.D. (“the mother”), under s. 102 of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 (“the CYFSA”), and granted the father only supervised access.

[3] The father appeals those orders on procedural and substantive grounds. I have concluded that the appeal should be allowed and the matter be remitted to the Ontario Court. As I will explain, although the motion judge made no reviewable error in refusing to adjourn the motion to strike, she did err in her interpretation of r. 1(8.2) or, alternatively, in her application of the rule. In any event, she erred by failing to fully consider the child’s best interests when making the order under s. 102.

BACKGROUND

[4] Unfortunately, the record contains very little information about the individuals involved in this dispute, especially the mother. As I will explain, that is one of the reasons why I believe the appeal should be allowed.

[5] On August 29, 2019, the Society received a call from the mother in which she advised that the child had disclosed inappropriate physical interaction of a sexual nature between the father and the child. At the time, the mother had custody of the child and the father had unsupervised access pursuant to a 2017 order made in family proceedings between the parents.

[6] The Society and the police investigated the allegation by interviewing the child. Although they felt the child confirmed the accusation on one occasion, on a second occasion he declined to participate. The police closed their investigation without laying any charges. However, on September 4, 2019, the Society commenced an application under the CYFSA. In the application, the Society sought to have the child placed with the mother and to restrict the father’s access to a combination of supervised and unsupervised visits.

[7] On the first return date, the presiding judge made a temporary supervision order in accordance with the Society request.

[8] Acting on his own behalf, on November 6, 2019, the father filed an answer and Plan of Care, dated October 28. In the answer, he denied the allegations. He opposed the order sought and asked, instead, for an order for a “defined and graduated path to equal and shared parenting”. He completed each part of the prescribed form, setting out where he proposed to live with the child, where the child would attend school, and who would support his plan of care, among other things.

[9] At first, the matter progressed much the same way that most child protection proceedings do. By March 4, 2020, a settlement conference had been adjourned pending a decision by the parties regarding a police disclosure order and an order had been made that the child be represented by the Office of the Children’s Lawyer (“the OCL”). However, the matter then came to a dead stop. Like so many court proceedings at the time, this one was adjourned due to the pandemic four times between April 1, 2020, and September 16, 2020, without any procedural or substantive orders being made. On the latter date, the court adjourned the matter to October 2, 2020, to proceed via Zoom. That was the last time the father participated. Between October 2, 2020, and May 19, 2021, the date the impugned orders were made, the application was addressed nine times before the court. The father did not appear on a single occasion.

[10] On March 2, 2021, the Society served the father with a motion seeking to amend the application from one seeking a four-month supervision order to one seeking to give the mother custody under s. 102 of the CYFSA. Noting that the father had not called in, the motion judge granted the order on the first return date, March 3, 2021.

[11] On April 26, 2021, the Society served the father with another motion. This time, the motion sought to strike the father’s answer under r. 1(8.2). On the first return date for the motion, May 5, the child’s lawyer requested a two-week adjournment. Duty counsel appeared for the father. As she appears to have done earlier, she advised the court that the father was claiming that it was “again against the tenets of his faith to attend virtual court” (transcript, p. 2, l. 16). She advised that the father was seeking to retain counsel “for that reason” and that he had been provided with a list of local lawyers for that purpose. On consent, the matter was adjourned to May 19, 2021.

[12] By May 19, the father had neither retained counsel nor filed any responding materials. Duty counsel again addressed the matter on the father’s behalf. She advised the motion judge (transcript, p. 3, l. 12):

Mr. H. has contacted my office. He's advised me he's still in the process of looking to obtain counsel. I asked him about his progress, and he has to ask Legal Aid for permission to seek out of town counsel for a variety of reasons, according to him.

He asked for me to argue for the dismissal of the Society's motion. I did try to explain to him that's not how the process works; the most I can ask on his behalf today, Your Honour, given that he is taking steps to - to obtain counsel, is for a further adjournment.

[13] The Society successfully opposed the adjournment request. In denying the request, the motion judge noted that the father had refused to attend court and yet had been corresponding via email with both counsel for the Society and duty counsel (transcript, pgs. 5-6). She also noted that the child had been in his mother’s care since the application began. She held (transcript, p. 6, l.10):

Mr. H. has had ample opportunity to retain counsel on this matter, and he has chosen not to engage in this virtual process, and as I have stated, this is the way that court is being conducted at present due to the pandemic and the nature of - of the entire province having to deal with - with fighting this situation that we're dealing with.

[14] The motion judge granted the Society’s request and struck the father’s answer. What happened next is significant, in my view.

[15] In response to the motion judge’s inquiry about a return date, counsel for the Society advised the judge that the Society was hoping that the judge would “consider finalizing” the matter. She advised that the mother and the Society had filed a Statement of Agreed Facts (an “SAF”) and some draft orders. However, the motion judge was unable to find them and the matter was stood down. When the motion judge returned to the matter after reading the SAF, she asked the child’s lawyer what her position was on the order being sought. Ms. Fitzpatrick advised that she took no position on behalf of the child. After hearing from the child’s lawyer, the motion judge granted the final order sought by the Society, placing the child with the mother and giving the father supervised access.

[16] The motion judge then made a further inquiry of counsel for the mother, and endorsed the file:

CAS has a motion [at] volume 1, tab 18 [of the Continuing Record].

Ms. Soczka [duty counsel] has received email correspondence from Mr. H. asking for an adjournment to retain counsel.

OCL takes no position on the CAS motion …

Mr. Campbell [counsel for the mother] takes no position …

The child … resides with the mother.

The father will not attend virtual ct. and has not retained counsel [and] will not engage with the current ct. process due to its virtual nature.

The matter commenced September 2, 2019.

CAS motion is granted. [Final order] as per draft filed.

FRESH EVIDENCE

[17] The Society, the child’s lawyer, and the father all seek to introduce fresh evidence on the appeal.

[18] The Society seeks to introduce evidence that it submits is necessary to counter certain statements in the father’s factum. The proposed evidence consists of an affidavit making specific references in Society case notes to the father’s behaviour during in-person and Internet interactions with Society staff. The source documents are attached as exhibits to the affidavit.

[19] The child’s lawyer seeks to introduce the evidence of an OCL clinician about visits she and the child’s lawyer have had with the child since the motion judge’s decision. In her affidavit, the clinician deposes that in one visit, she was unable to get the child to say much other than that he wished he could visit with his father in a place that had more space, where he and his father could play basketball. She deposes that in a more recent visit, the child stated that he did not like visitation with his father, that “it was boring”, and that he does not like seeing his father.

[20] The father opposes the admission of the evidence proffered by the child’s lawyer. He submits that the clinician did not conduct a proper investigation. He submits that, had she done so, she would have concluded that the child’s views had been influenced by the mother. In the alternative, he seeks to introduce his own affidavit evidence, in which he refers to notes taken by Society staff of the positive interaction between him and the child during supervised access, statements made by the child during those visits that indicate the mother has been speaking inappropriately about the father, and of his efforts to become a better parent after the motion judge’s decision by taking parenting courses.

[21] In response, the child’s lawyer seeks to introduce a further affidavit on the part of the clinician, in which she explains that the purpose of her involvement was not to conduct an assessment, but to assist the child’s lawyer in representing the child.

ISSUES

[22] On behalf of the father, counsel raises eight issues in this appeal. As I would allow the appeal, I find it necessary to deal with only four issues, as follows:

(1) Should the fresh evidence be admitted? (2) Did the motion judge err in refusing to grant the father an adjournment on May 19, 2021? (3) Did the motion judge err in striking the father’s answer under r. 1(8.2)? (4) Did the motion judge err in awarding the mother custody of the child based on the SAF?

The Fresh Evidence

[23] During the hearing, I ruled that any evidence about events occurring after the motion judge’s order would be admitted: CYFSA, s. 121(6); Courts of Justice Act, R.S.O. 1990, c. C.43, s. 134(4)(b). I reserved my decision with respect to evidence of events occurring before the order was made. Having examined the proposed evidence more fully, I believe almost all of it should be admitted, but not necessarily considered for the reasons the evidence is proffered.

[24] I will deal first with the fresh evidence of the Society. As the Society correctly submits, it is suggested in the father’s factum that he attended “every single supervised access visit with grace and eagerness”: para. 2. The evidentiary foundation for this submission is not clear. However, the Society’s affidavit and the attached contact logs contain evidence directly contradicting this claim and it would be unfair not to admit it.

[25] The Society also submits that the evidence should be admitted for the purpose of contradicting another statement made in the father’s factum, namely, that the Society misled the motion judge by suggesting that the father had not been involved in the court process since March 4, 2020: para. 5. I do not see how the fresh evidence is relevant to that claim and, therefore, I would not admit it on that basis.

[26] Most of the fresh evidence proffered by the OCL is admissible under s. 121(6) of the CYFSA because it relates to events that occurred after the motion judge’s decision. It is clear from the record that the evidence could not be obtained by the child’s lawyer before then. However, the clinician’s affidavit also contains a statement that I would not admit. In particular, the clinician states that the child said nothing that caused her to be concerned “that he might have been coached in his wishes and preferences”: para. 19. Although carefully worded, this is still a statement of opinion. No proper foundation was laid for it. The only evidence I have is that the deponent has worked as an OCL clinician since 2004. That is not enough, in my view.

[27] Even if the clinician’s opinion on coaching was admitted, I would give it no weight. There is no evidence that the clinician examined the record before forming her opinion. The child’s lawyer submits that the clinician’s evidence is offered only as it relates to the child’s wishes and preferences and not as an assessment. However, even as it relates to the child’s wishes and preferences, before such an opinion can be given any weight, it must be informed.

[28] Because I would admit the rest of the clinician’s evidence, I believe that the father’s evidence of the observations made during his supervised access visits should also be admitted. Both are relevant to determining the child’s best interests as they relate to the issues on the appeal.

[29] Turning lastly to the father’s evidence about efforts at improving as a parent, like the balance of the evidence proffered by the child’s lawyer, I believe that the father’s evidence should be admitted under s. 121(6) of the CYFSA and in accordance with the relaxed rules regarding the admission of fresh evidence in child welfare cases: Catholic Children's Aid Society of Metropolitan Toronto v. M. (C.), [1994] 2 S.C.R. 165, at p. 188.

[30] While I have concluded that most of the fresh evidence should be admitted, I do not intend to rely on it to substitute my decision for that of the motion judge on the issue of custody. Instead, as I will explain, I rely on this evidence to demonstrate that there was much more to be considered in the child’s best interests than what was included in the SAF.

The Adjournment Request

[31] A judge’s decision on an adjournment request is a highly discretionary one. In a civil case, the judge must balance the interests of the parties against the interests of the administration of justice in the orderly processing of civil trials on their merits. A judge’s decision not to grant an adjournment may only be interfered with on appeal if, as a result of the judge’s failure to consider relevant factors, it is contrary to the interests of justice: Khimji v. Dhanani (2004), 69 O.R. (3d) 790, at para. 14.

[32] In a child protection application, the interests of the child are paramount: CYFSA, s. 1(1); Children’s Aid Society of Toronto v. V.L., 2012 ONCA 890, at para. 15. Those interests include stability and finality: Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014, at para. 13. To further those interests, both the CYFSA and the Family Law Rules contain provisions designed to ensure that child protection proceedings take place without unnecessary delay. Section 94 of the CYFSA, for example, prohibits adjournments of more than 30 days except where all of the parties consent. Rule 33(1) of the Family Law Rules requires that the child protection hearing proceed within 120 days of the commencement of the application and r. 33(3) permits a court to lengthen the timeline only if it is in the best interest of the child. Courts have repeatedly spoken about the importance of adhering to such timelines: M. (C.) v. Children's Aid Society of the Regional Municipality of Waterloo, 2015 ONCA 612, at para. 33.

[33] Although the motion judge’s reasons for denying the adjournment were brief, in combination with the record, they demonstrate that she considered all of the factors that were relevant in this case, including the child’s best interests.

[34] According to her endorsement of March 4, 2020, the father advised the motion judge that he had obtained a Legal Aid certificate as of that date. However, by May 19, 2021, he still had not retained counsel, relying on duty counsel instead. Even if duty counsel’s information of May 19 that the father had to look for a lawyer from outside North Bay was true, the father had been given more than ample time to realize that and to find one.

[35] Importantly, the father had been given two additional weeks from May 5, when the matter was adjourned on consent, to May 19. Even if he needed to look for a lawyer elsewhere, he had two weeks to file his own materials in answer to the Society’s request to strike his answer. He had demonstrated he was capable of doing that when he filed the answer himself. And yet he did not. Instead, as the materials filed by and the submissions made on behalf of the Society made clear, the father took to writing a series of insulting and, frankly, disturbing email messages to Society counsel.

[36] The motion judge referred to the fact that the father had been given ample time to retain a lawyer. She also referred to the fact that the father had failed to engage in the court process, a fact of which she was keenly aware, having endorsed the record herself on at least four previous occasions that the father had failed to attend court.

[37] Finally, the motion judge referred to the fact that the child had been in the mother’s care under a temporary order since the application began on September 4, 2019, a period of more than 20 months.

[38] On the evidence before the motion judge, there was no basis to hope that the father would take any steps to retain counsel or file further materials within a reasonable period of time. In these circumstances, I can see no error in the manner in which the motion judge exercised her discretion to deny the adjournment and move the matter towards a conclusion. However, that does not necessarily mean that she should then have proceeded to strike out his answer.

Rule 1(8.2)

[39] Rule 1(8.2) of the Family Law Rules provides:

The court may strike out all or part of any document that may delay or make it difficult to have a fair trial or that is inflammatory, a waste of time, a nuisance or an abuse of the court process.

[40] At the request of the Society, the motion judge struck the father’s entire answer under this rule. Her decision to do so was a discretionary one that is entitled to deference on appeal when exercised on proper principles: Purcaru v. Purcaru, 2010 ONCA 92, at para. 50. However, in my respectful view, the motion judge did not exercise her discretion on proper principles in this case.

[41] Counsel for Mr. H. submits that r. 1(8.2) is a rule directed more at editing prejudicial pleadings than punishing the pleader. He submits that the rule requires a moving party to specify which parts of a document it seeks to strike out and that the court must then scrutinize the objectionable passages: Children’s Aid Society of Algoma v. H.M., 2019 ONCJ 487, at paras. 20, 25, and 26. However, as I will elaborate upon below, some courts have applied the rule in much the same way as r. 1(8)(c) is used, namely, to strike out an entire pleading. I tend to agree with the father’s counsel, but I see a more fundamental error in the interpretation of r. 1(8.2) arising on the facts of this case.

[42] In my view, before a judge can strike out all or any part of a document on the basis that it may cause delay, there must be evidence that the delay would be unfair. I arrive at this conclusion based on the text, context, and purpose of the rule: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at para. 118.

[43] I start with the text and the observation that, on a plain reading of the rule, the word “fair” seems to modify both the word “difficult” and the word “delay”. As I read the rule, it would have been appropriate either to add the word “unfairly” before the word “delay” or to put commas around the words “or make it difficult to have”.

[44] Turning to the context, I note that in every other circumstance in which the rule permits all or a part of a document to be struck out, there must be some element of unfairness in allowing it to stand. This is true of any document that is inflammatory, wasteful of an opponent’s or the court’s resources, or abusive.

[45] Finally, I conclude that the purpose of the rule is not to avoid delay altogether, but to avoid unfair, unreasonable, or unnecessary delay. It would be absurd if mere delay were enough, without unfairness, to strike out a document. Indeed, if all that was required was delay, it is hard to see why every document denying the relief claimed in a proceeding should not be struck out.

[46] I take some comfort in my interpretation of r. 1(8.2) from the decision of my colleague, Korpan J., in Children’s Aid Society of London and Middlesex v. M. (A.C.), 2016 ONSC 2163, a case referred to in argument by counsel for the mother. In that case, a similar request had been made by the Society after a mother who had filed an answer early in the proceedings then failed to engage with the Society and the court process for months. In framing the issue before her, Korpan J. wrote, at para. 1:

Should the mother’s answer be struck pursuant to r. 1(8.2) of the Family Law Rules … as requested by the Society on the grounds that it may delay a fair trial and is a waste of time so as to allow the status review application to proceed to an uncontested hearing? [Emphasis added.]

[47] The motion judge’s reasons for striking the father’s answer in this case were the same as her reasons for denying the father’s request for an adjournment. As I have pointed out, they were based on delay and the father’s failure to attend court. However, the motion judge did not even consider whether striking out the answer would speed the trial up, let alone avoid unfairness. Indeed, as I have also pointed out, it was only after striking out the answer that the motion judge asked when the matter would next be addressed.

[48] Even if I am wrong in my interpretation of r. 1(8.2) and a judge is free to strike out a pleading merely because it might delay a trial, the fact remains that the motion judge in this case failed to consider the effect on the process of doing so.

[49] In King v. Mongrain, 2009 ONCA 486, the Court of Appeal made it clear that striking out a parent’s pleading in a child protection case should only be done where the court can be certain that it will still have the information necessary to determine the child’s best interests. Speaking for the court in Mongrain, Gillese J.A. wrote, at para. 31:

[C]ourts should use the utmost caution in striking pleadings where children’s interests are involved and it is generally preferable to avoid using that sanction: see, for example, Haunert-Faga v. Faga (2005), 203 O.A.C. 388 (Ont. C.A.). The reason for that admonition is simple - in order to make custody and access decisions in the best interests of the child, the court needs the participation of both parties. Thus, while this court upheld the first instance decision to strike the pleadings of the husband in Faga, two things must be noted. First, the pleadings were largely about financial matters, although there were limited parts on custody and access. Second, and very significantly, as the court noted at para. 7 of its reasons, the Office of the Children’s Lawyer would represent the children’s interests in the proceedings. Accordingly, the court was assured that the information necessary to make custody and access decisions in the children’s best interests would be before it.

[50] In the present case, no effort was made by the motion judge before striking out the father’s answer to ensure that the court had all of the information it would require to determine the child’s best interests. Had she done that, she would have learned, as she did after striking the answer, that the child’s lawyer had been unable to fully ascertain her client’s wishes and preferences. As the child’s lawyer advised the judge (transcript, p. 8, l. 15):

MS. FITZPATRICK: Your Honour, the mother has been very cooperative in bringing M. to my office and I tried to talk to him on the phone, and M. is a very sweet little guy. He is not really interested in talking to me, or not right now, about his relationship with his dad. He is opening up a little bit more to me these days. The last time - he saw me a couple weeks ago - we had a good conversation about Minecraft, but I can't give a position at this time because he is not comfortable sharing that relationship with me. I spoke to the Office of the Children's Lawyers supervisor about this, because it's somewhat uncommon that a child, in my experience, does not want to talk after a couple of tries. They do want me to continue trying to represent M. at this time and I'm going to ask Mom to see if he can come in again, but at this time I -unfortunately, he's, you know, he's not comfortable talking to me about that at this time; notwithstanding the efforts of mom to bring him and I just can't give a position.

THE COURT: So, in relation, 'cause the Society is seeking a final order to finalize the matter, that the mother have custody and that the father have supervised access?

MS. FITZPATRICK: I can advise that M. has told me that he is happy at home and loves his mom, he just won't talk to me about Dad.

[51] In my respectful view, the motion judge should have proceeded more cautiously in this case. This is particularly true where, as here, the Society obviously planned on seeking a final decision as soon as the pleading was struck, but gave no notice of its intention to the father. As the court in Purcaru explained, at para. 49:

The adversarial system, through cross-examination and argument, functions to safeguard against injustice. For this reason, the adversarial structure of a proceeding should be maintained whenever possible. Accordingly, the objective of a sanction ought not to be the elimination of the adversary, but rather one that will persuade the adversary to comply with the orders of the court. As this court said at p. 23 of Marcoccia v. Marcoccia (2008), 2008 ONCA 866, 60 R.F.L. (6th) 1 (Ont. C.A.), the remedy of striking pleadings is “a serious one and should only be used in unusual cases”. The court also explained at p. 4 that the remedy imposed should not go “beyond that which is necessary to express the court’s disapproval of the conduct in issue.” This is because denying a party the right to participate at trial may lead to factual errors giving rise to an injustice, which will erode confidence in the justice system.

[52] Although Purcaru was a case in which the court struck the husband’s pleadings due to repeated breaches of court orders on his part, the principle of going no further than necessary applies whenever a court is asked to strike pleadings. The decision in M. (A.C.) provides a good example of the application of this principle. Although Korpan J. struck the mother’s answer, she did so without prejudice to the mother moving to set the order aside before the matter proceeded to an uncontested trial: para. 37. A similar approach in this case would have driven home to the father that the court intended to proceed without him and given him one last opportunity to participate. The fact that the father later appealed and appeared via Zoom at the hearing of the appeal shows that such an approach would likely have had the desired effect.

[53] As the courts in the cases cited above have recognized, there is a risk that the best interests of children involved in family proceedings will suffer where one parent is prevented from participating in the process. As it turns out, that risk was very real in this case.

The SAF

[54] After striking out the father’s pleading and being advised that the Society wanted to finalize the application that very same day, the motion judge stood the matter down. It appears from the transcript that she took a recess, but the length of the recess is not indicated. The transcript does indicate, however, that the only thing the motion judge reviewed during the recess was the SAF: transcript, p. 8, l. 10. With respect, the SAF did not provide enough information to make an informed decision about the best interests of the child.

[55] The SAF gave a brief history of the events leading up to the application being brought and a slightly longer history of events occurring afterward. At least one key fact was omitted from each. In the history of events leading up to the bringing of the application, the SAF set out the alleged disclosure to the mother by the child and the repetition of the disclosure to the police during one of two interviews by them. What it left out, however, was the timing of the alleged disclosure to the mother.

[56] Although it was not mentioned in the SAF, the mother admitted in an affidavit filed earlier in the proceedings that she and the father were involved in a “contentious family court proceeding” regarding custody of the child prior to the alleged disclosure by the child. Indeed, two days before the alleged disclosure, the mother had lost a motion to have the father’s access supervised and the father had won a motion to have his unsupervised access enforced by the police. The mother does not say this in her affidavit and no mention is made of it at all in the SAF. However, had the motion judge reviewed the file, the suspicious timing of the allegations would have become clear from other information that was also missing from the SAF.

[57] Although the father refused to attend court during the pandemic, he did agree to attend a psychosexual risk assessment performed by Dr. Robert Saltstone. Dr. Saltstone’s August 19, 2020, report was later filed as an attachment to an affidavit sworn by a Society staff member. In the SAF, the Society and the mother referred to a portion of Dr. Saltstone’s, report in which he opined that the father’s psychological profile revealed narcissism, failures in close relationships, suspiciousness, and compulsivity or rigidity. It also referred to Dr. Saltstone’s opinion that the father had been “faking good” on the test instruments, among other things.

[58] However, the SAF made no reference to two other, important, parts of Dr. Saltstone’s report. In one, Dr. Saltstone reported (at p. 11):

Combining information from the actuarial risk assessment tools, psychosocial and personological issues, and measures of psychopathy, Mr. H.’s risk, in terms of the probability of committing a sexual offense, is very low. From what I can determine, his psychological profile is not similar to that of an incest offender, and is not likely to be a risk to his son. I must emphasise though, that had Mr. H. been more forthright on the tests, my opinion on this matter could be clearer.

[59] In the other, Dr. Saltstone alerted the court to the possibility that the allegations might be false given the suspicious timing and the context in which they were made. In a paragraph immediately following the one set out above, he wrote:

Lastly, in cases in which there are unresolved issues related to custody and divorce, the issue of false accusations of abuse should be considered. This is often referred to as the SAID (Sexual Allegations in Divorce) Syndrome (Blush & Ross, 1987). There are a number of important variables to consider when evaluating the possibility of SAID and these include the personality characteristics of the adults involved. Unfortunately, I am only able to evaluate the accused (and with reservations at that) in this matter. However, there are a number of other characteristics which have been found to be attributable to the 'typical' SAID victim (e.g., a history of nurturing behaviours toward the spouse and a lack of "macho" characteristics), and Mr. H. exhibits several of these. Of a non-personological nature, SAID accusations tend to surface after separation and legal action begins, when there are unsettled issues of custody, when there are hidden underlying issues, and when the allegations surface via the custodial parent.

[60] In my respectful view, this evidence was relevant to a determination of the child’s best interests because it bore on whether the child’s visits with the father needed to be supervised. Unfortunately, it was not considered.

[61] A judge’s decision in a custody case is entitled to a high degree of deference. An appellate court may only interfere if the deciding judge erred in law or made a material error in the appreciation of the facts: Van de Perre, at paras. 11 and 13. Because she relied entirely on the SAF, the motion judge in this case failed to consider all of the evidence referred to above and thereby materially erred in her appreciation of the facts: Van de Perre, at para. 15. For that reason, her decision must be set aside.

CONCLUSION

[62] There is no doubt that the father was the author of his own misfortune in this case. His refusal to participate was unreasonable and, as his participation in the virtual appeal hearing demonstrates, unnecessary. If he was the only one who had suffered for his failure to engage in the court process, the outcome of this appeal would be different. But he was not.

[63] Because of the rushed and abbreviated way in which the child protection proceedings were concluded, the father was never given a second chance to participate and the motion judge was unable to conduct the kind of in-depth review of the record necessary to make up for the father’s absence. As a result, the motion judge failed to consider relevant evidence.

[64] For these reasons, the order striking the father’s answer is set aside and the matter is remitted to the Ontario Court on an expediated basis.

COSTS

[65] The father seeks costs in the event his appeal is allowed. Ordinarily, costs follow the event. However, given the father’s refusal to engage in the Ontario Court proceedings, I am not inclined to order costs.

[66] Nonetheless, if the parties wish to make submissions on the issue, they may be made in writing, limited to five typewritten pages excluding attachments, as follows:

(a) on behalf of the father, within 7 days of the date of these reasons; (b) on behalf of the Society, within 14 days of the date of these reasons; (c) on behalf of the mother, within 14 days of the date of these reasons; and (d) on behalf of the child, within 21 days of the date of these reasons.

M.G. Ellies R.S.J.

Released: February 17, 2022