Court File and Parties

Court File No.: FS23-20/23-53/22-08 Date: 2024 03 07 Ontario Superior Court of Justice

Between: Carlos Rodriguez, Applicant Self Represented, for the Applicant

And: Mistica Boel, Respondent Counsel: Diane Barker, for the Respondent Email: dbarkerlaw@outllook.com

Heard: February 29, 2024

Reasons for Judgement McGee J.

Introduction

[1] The appellant, Mr. Rodriguez, appeals from three temporary Orders of the Ontario Court of Justice.

[2] The hearing of this appeal was conducted in accordance with the July 21, 2023 endorsement of Justice Fowler-Byrne:

a. Mr. Rodriguez’ appeal of Justice Brown’s Order of February 6, 2023 for the production of records from Bruce Grey Child and Family Services (“BGCFS”) within Court File FS-23-0029 was argued first, and then;

b. Mr. Rodriguez’ appeal of Justice Harrison’s Order of January 20, 2022 varying parenting time within Court File FS-22-008; and

c. Mr. Rodriguez’ appeal of Justice Harrison’s Order of April 27, 2023 in which he dismissed a motion to enforce terms of a purported agreement on parenting time within Court File FS-23-0053, were argued together.

[3] As directed on July 21, 2023 Mr. Rodrigues was permitted one hour to provide submissions on appeal (a) and one hour to provide submissions on appeals (b) and (c.) After each hour, the respondent on appeal, Mr. Boel had one hour to provide submissions, followed by a half hour of reply.

[4] Upon hearing the submissions of Mr. Rodrigues, no response was invited from the respondent. Because reply is limited to issues that are raised for the first time in response, no reply followed.

Permission Granted to Record Proceedings

[5] As a preliminary issue, Mr. Rodriguez sought permission to record the hearing of the appeal on his phone, pursuant to section 136(2) of the Courts of Justice Act R.S.O. 1990, c. C.43, s. 40. The request was opposed by respondent’s counsel.

[6] Permission was granted for Mr. Rodriguez to record the hearing subject to the strict limitation that such recording could only be used for his own preparation and could not be transcribed, disseminated, published, transmitted, or otherwise used in a manner that might become public. Order to issue accordingly.

Background

[7] The parents began living together in the fall of 2017 and were married on September 29, 2018. Their daughter, P. was born on [- date to be omitted when decision published.] The parents separated on April 9, 2020.

[8] Much litigation has since followed.

[9] Although counsel for BGCFS attended the hearing of the Appeal, the Society is not engaged in this appeal in any capacity other than as the holder of non-party records. No protection proceeding had yet been issued as of the hearing of this appeal.

[10] In support of his appeal, Mr. Rodrigues uploaded approximately 3,650 pages to CaseLines. Most of his documents were inadmissible or were not relevant to an appeal of the above three temporary orders, such as his letters of complaint to the Information and Privacy Commissions of Ontario, documents pertaining to Ms. Boel’s medical history, or a “Notice as to Constitutional Question” to which senior counsel for the Attorney General earlier declined to respond because no constitutional question arises from a civil law disclosure order or a temporary order for parenting time.

[11] Mr. Rodriguez was permitted to argue his case without challenge or interruption. I listened carefully to his submissions and have taken the appeal under reserve to further review his written materials.

[12] In listening to his submissions and reviewing his materials, I have disregarded any evidence not before the motion judge at the time of his or her decision, such as undated video recordings played by Mr. Rodriquez during his oral submissions. At no time has Mr. Rodriguez sought leave within this appeal to admit further or fresh evidence.

Jurisdiction and Standard of Review

[13] An appeal of a temporary order of the Ontario Court of Justice lies to the Superior Court of Justice pursuant to s. 40 of the Courts of Justice Act. The Act requires leave of the appellate court where an appeal is to be taken from a consent order, or an order respecting costs alone.

[14] The appellate standard of review applies to this appeal: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. Questions of law are reviewed for correctness, questions of fact are reviewed for a palpable and overriding error, and questions of mixed fact and law are reviewed on the deferential standard, except “extricable questions of law” to which the correctness standard applies.

Analysis

[15] Each of Justice Harrison and Justice Brown’s Orders are temporary, and intended to govern until the Trial during which the relief set out in the three Court Files will be considered in full.

[16] In the often-quoted judgment in Sypher v. Sypher (1986), 2 R.F.L. (3d) 413 (Ont. C.A.), Zuber J.A. provided guidance with respect to appeals in these circumstances:

At the outset, it is appropriate to observe that interim orders are intended to cover a short period of time between the making of the order and trial. I further observe that interim orders are more susceptible of error than orders made later; but the purpose of the interim order is simply to provide a reasonably acceptable solution to a difficult problem until trial.

At trial after a full investigation of the facts a trial judge may well come to the conclusion that a substantially different order should be made. I gather that there is a fear that the interim order may acquire such an aura of propriety that there will be a tendency to repeat the terms after trial. This is not so. The trial judge's discretion is unfettered, and his judgment will be rendered on a full investigation of the facts.

Having those principles in mind then, an appellate court should not interfere with an interim order unless it is demonstrated that the interim order is clearly wrong and exceeds the wide ambit of reasonable solutions that are available on a summary interim proceeding. In my view the appellant in this case has not demonstrated that this order falls outside of that ambit and the appeal must be dismissed.

[17] The Manitoba Court of Appeal expressed a similar view in Conde v. Conde, 2018 MBCA 135 at para. 15:

This Court has stated often that appeals of interim orders are to be discouraged and that the best place for review is at the trial of the matter. An appeal is not a re-hearing. The father’s appeal raises issues that deal with discretionary decisions by the motion judge that are to be reviewed by this Court on a deferential standard of review, such that this Court cannot intervene unless the motion judge made an error in the legal principles that he applied, misapprehended the facts, or arrived at an unjust decision ( see Cottyn v. Anderson, 2014 MBCA 48, at para 7).

[18] Here, Mr. Rodriguez’ Notice of Appeal asks for de nova orders not available on appeal, such as an order that he not be required to serve and file a vulnerable criminal record search, and for orders redetermining issues for which an order has already been made, such as “[a]n order dismissing the mother’s motion for production of third part records from the BGCFS.”

[19] It is not the task of an appellate court to reframe an appellant’s stated grounds of appeal, the oral argument for which coalesced around three themes:

1. BGCFS is not doing their job.
2. The Authorities are not requiring BGCFS to do their job.
3. The failure of multiple institutions to do their job is harming P. and must be corrected by the Court and the Attorney General.

[20] In making his submissions, Mr. Rodriguez vividly relayed the events that he has experienced, combining great emotion with physical re-enactments of conversations and confrontations. He spoke to the room at large, gesticulating and pacing as the subject matter moved him. He appeared to be reliving the moments that he believes to be responsible for his current circumstances.

[21] Mr. Rodriguez’ written materials, albeit expansive, were more helpful. As organized above, I will address each in turn.

Justice Brown’s Disclosure Order of February 6, 2023 Correctly Sets Out and Applies the Law

[22] The February 6, 2023 disclosure Order of Justice Brown comprehensively sets out the law permitting a motion judge to make an order for third party records, here, the records of the BGCFS and on a limited basis, certain related records of the Family and Child Services of Waterloo Region.

[23] The motions judge first instructed herself as to the tests for the production of non-party records as set out in Bailey v Bailey 2012 ONSC 2486, and as brought forward in subsequent caselaw. She concluded that the requested disclosure was both relevant and necessary to a determination of P.’s best interests and found that it would be unfair for the respondent to proceed without the requested disclosure.

[24] The motion judge then took the additional step of crafting a detailed disclosure order that would protect P.’s privacy and the integrity of the disclosure process, particularly any records from the Waterloo Society found in, or communicated to BGCFA. Within strict procedural directions, she detailed that certain information was to be redacted and required the respondent to bring a further motion should the release of additional records be sought.

[25] Mr. Rodriguez written appellate materials confirm the requirement for full and frank disclosure. I reject his assertion that the production of Society records as provided for in the February 6, 2023 Order was in any manner disproportionate, unfair, unwarranted, or unlawful. The records are highly relevant and absolutely necessary to a final determination of this protracted parenting dispute in the face of Mr. Rodriguez’s own child protection concerns.

[26] The appeal of the February 6, 2023 Order is dismissed.

There is No Error in Justice Harrison’s January 22, 2020 Parenting Order

[27] The January 22, 2020 parenting order provides for an increase in parenting time to a 4 – 3 – 3 - 4 rotating residency schedule between the parents, with no further need for Ms. Boel’s time to be supervised.

[28] Although Mr. Rodriguez participated in this decision, he now disputes that the order was made on consent, which would have required him to obtain leave to appeal. Instead, he grounds his appeal in the submission that events have since changed, and he despairs that his ongoing concerns with Ms. Boel’s parenting are being ignored, to P.’s peril.

[29] Events subsequent to the temporary orders under appeal are not before me. They do not offer a basis for appellate review because the events as described by Mr. Rodrigues were not known to the motions judge.

[30] Here, I must emphasize to Mr. Rodriguez that his concerns speak not to an appeal of a temporary parenting order made over four years ago, but to the urgent need to expedite this parenting dispute to Trial.

[31] The appeal of the January 22, 2020 Order is dismissed.

There is No Error in Justice Harrison’s April 27, 2023 Parenting Order

[32] The motion judge’s April 27, 2023 dismissal of Mr. Rodriguez’ motion to enforce parenting terms incompletely transcribed from an earlier Settlement Conference Brief is not addressed in Mr. Rodriguez’ written appellate materials.

[33] After reviewing the Order and the record available to the motion judge, I see no error. The motion judge made the order available to him in law and on the facts before him. There is no merit to this ground of appeal.

[34] The appeal of the April 27, 2023 Order is dismissed.

Conclusion

[35] The appeals of these three temporary orders of the Ontario Court of Justice are dismissed.

[36] Accordingly, the July 21, 2023 consent Order for a stay of Justice Brown’s February 6, 2023 Order pending appeal is lifted. BGCFS is asked to provide disclosure at its earliest opportunity so that the Trial of these actions, whether heard separately or joined pursuant to section 12(5) of the Family Law Rules O. Reg 114/99 can be immediately set for Trial.

Costs

[37] There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case, or appeal, see Rule 24(1) Family Law Rules.

[38] Ms. Boel seeks costs of this appeal in the amount of $7,500 inclusive of disbursements and HST, exclusive of the costs of the full day attendance of February 29, 2024. Mr. Rodriguez asks for costs of $50,000 against BGCFS, who were not a party to the appeal, and an additional $750 as against the mother because in his view, she is a person of modest means.

[39] The jurisdiction to award costs arises from s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43. That provision gives the court a broad discretion to determine costs. Under r. 24(10)(a) of the Family Law Rules (“the Rules”) courts are required to "[p]romptly after dealing with a step in a case" to determine "in a summary manner ... who if anyone, is entitled to costs in relation to that step and set the amount of any costs".

[40] An analysis of the amount of costs includes a view of what a party ought to have reasonably expected to pay in costs if unsuccessful. Here, Mr. Rodriguez demonstrated a full appreciation of the costs that he has incurred to pursue this appeal. He ought to have been equally alive to the costs incurred by Ms. Boel, and her diligent counsel who has continued to provide legal services, well beyond the financial limitations of her retainer.

[41] Parties are responsible for the positions that they take in litigation, and when unsuccessful, they are responsible for some, or all of the costs incurred by the opposing party. Rule 24(12)(a)(i) Family Law Rules directs the court, when setting the amount of costs, to consider "the reasonableness and proportionality of [each party's behaviour] as it relates to the importance and complexity of the issues.”

[42] These three appeals, as perfected by the appellant and argued on February 29, 2024 had no prospect of success. They were misconstrued as appeals from final orders over which the appellant asserted unrelated principles and convictions. Rather than moving this complicated parenting dispute towards a final determination, the appellant’s decision to appeal has placed this dispute, and the production of non-party records essential to the determination of this dispute on hold for over a year.

[43] The right to bring a case or to respond to a case does not grant a party the license to litigate in a manner that ignores the financial consequences of that litigation: see Sabo v. Sabo, 2013 ONSC 5809, at para. 38. In Weber v. Weber, 2020 ONSC 6855, Chappel J. sets out at para. 15 the centrality of reasonable behaviour as it relates to assessing costs:

One of the most important functions of costs is to ensure that litigants conduct themselves in a manner that upholds the integrity of our justice system as a whole. Costs awards are a means of ensuring that litigation is not utilized as a tool to harass parties, that it is conducted in an organized and responsible manner and that the resources of the justice system are not unduly drained by clearly unreasonable claims.

[44] I find that the purposes of a costs award must be fully engaged in these circumstances. Those purposes are set out in Mattina v. Mattina, 2018 ONCA 867: to partially indemnify a successful litigant; to discourage and sanction inappropriate litigation behaviour, to encourage settlement, and to deal with cases justly.

[45] I grant the respondent her costs in the requested amount of $7,500 inclusive of fees, disbursements and HST. Costs are payable forthwith.

McGee J. Released: March 7, 2024