



COURT OF APPEAL FOR ONTARIO

CITATION: Khan v. Ramsingh, 2019 ONCA 623

DATE: 20190724

DOCKET: C66098

Hoy A.C.J.O., Trotter and Jamal JJ.A.

BETWEEN

Jamshad Khan

Respondent (Appellant)

and

Nalita Ramsingh

Applicant (Respondent)

Ingrid van Weert, for the appellant

No one appearing for the respondent

Heard: July 16, 2019

On appeal from the order of Justice Frederick L. Myers of
    the Superior Court of Justice, dated October 4, 2018, with reasons reported at
    2018 ONSC 5901.

REASONS FOR DECISION

[1]

This is a fathers second appeal from an order denying him leave to
    bring a Motion to Change what is in effect a final order dated September 20,
    2017 for the custody of and access to his two children and for child support.

[2]

The mother was properly served but did not respond to this appeal.

Background

Events leading to the
    order under appeal

[3]

The father and mother separated in December 2004. They are the parents
    of two children, a daughter, now 18 years of age, and an autistic son, now 14
    years of age. The son requires assistance in dressing himself, reading, writing
    and with school generally.

[4]

Until August 2013, the mother, who is a registered nurse, permitted the
    father to continue to live with her and the children because he had no other place
    to live. In August 2013, the police conducted a drug raid on the mothers home
    while the children were present. They arrested the father, who was subsequently
    convicted of narcotics offences and possession of a firearm. The father was
    incarcerated from 2013 to 2016.

[5]

In September of 2016, the mother commenced an application for sole
    custody of the children, retroactive child support and s. 7 expenses since the
    father was arrested, and an order requiring the father to complete parenting
    and anger management courses, requiring any access by the father to the
    children to be supervised, prohibiting the father from speaking ill of her in
    the presence or hearing of the children or extended family, or discussing with
    the children the dispute between them, and restraining the father from, among
    other things, coming within 500 meters of her and the children.

[6]

In her application, the mother asserts, among other things, that: she
    has been and continues to be the sole caregiver for the children; the father
    exposed the children to adult conflict and disparages her in the presence of
    the children; the father had been verbally and physically abusive to her during
    the relationship; the father has threatened to take the children to Pakistan so
    that she will never see them again; the fathers lack of judgment and criminal
    activities are dangerous for the children; and the individuals the father hangs
    around with are dangerous.

[7]

The father had difficulty in obtaining a Legal Aid certificate, and, as
    a result, difficulty in retaining a lawyer to respond to the mothers
    Application.

The case management judge
    makes a temporary order

[8]

On March 16, 2017, the case management judge made a temporary order on
    consent that the mother would have sole custody of the children; restricting
    the fathers access to the children to telephone access (to be initiated by the
    father only on Sundays between 5:00 and 6:00 p.m. or by the children at any
    time) and to commence only after the father provided stipulated disclosure
    about his criminal convictions; and that the father serve and file stipulated
    documents, including a current sworn financial statement (Form 13), at least seven
    days before the next court date. Without the parties consent, she also ordered
    that the father pay child support based on an imputed minimum wage, serve and
    file his Answer by April 18, 2017, on a peremptory basis, and pay the mother
    costs in the amount of $2,500.

[9]

The appellant served his Answer on a timely basis, but court staff would
    not let him file it because it was not accompanied by a sworn financial
    statement, as required by r. 13 of the
Family Law Rules
, O. Reg. 114/99
. The fathers position
    was that the case management judge had effectively waived that requirement by
    the provision in her March 16, 2017 order requiring him to file a current
    financial statement at least seven days before the next court date. The
    peremptory date for filing his Answer was more than seven days before the next
    court date. Accordingly, in his view, the March 16, 2017 order relieved him of
    the obligation under the
Family Law Rules
to file a sworn financial
    statement with his Answer.

The case management judge
    holds a case conference

[10]

The
    case management judge did not agree with the fathers interpretation of her
    order. At a case conference held on July 12, 2017, the case management judge
    noted that the father had not yet paid the costs that she had ordered and that
    the father was in default, because he had not filed his Answer as required by
    her order of March 16, 2017. In her endorsement, she noted that the mother might
    ask for final orders at the next court date and ordered the father to pay the
    mother a further $800 in costs.

The next court date

[11]

On
    the next court date, on September 20, 2017, the case management judge noted
    that both costs orders remained outstanding and the father had still not filed
    his Answer. She also noted that the father had been represented by a lawyer
    since at least March 16, 2017. She denied the fathers request for a further
    extension. She also ordered that the 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. She added: The
    court shall take into account the payment of costs in determining whether
    permission should be granted.

The father seeks leave to
    bring a Motion to Change

[12]

The
    father did not appeal any of the orders the case management judge made up to
    and including the September 20, 2017 order. Instead, he paid the outstanding
    costs orders and sought leave to bring a Motion to Change supported by a
    two-page affidavit, dated April 23, 2018.

[13]

In
    paras. 1 through 4 of his affidavit, the father says why in his view the case
    management judges orders were wrong. In doing so, he states in para. 2 that he
    had not been employed for over 12 years, does not speak, read or write English
    well, has no marketable skills, has a criminal record, and has health issues
    that prevent his employment. Para. 5 is as follows:

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

[14]

On
    April 27, 2018, the case management judge dismissed the fathers motion for
    leave, writing as follows:

All the evidence provided addressed the issue of why the father
    thinks the orders made on September 20, 2017 are wrong. That is not a matter
    for a Motion to Change. This 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 father appeals the
    denial of leave to bring a Motion to Change

[15]

The
    father appealed the case management judges April 27, 2018 order to the
    Superior Court of Justice. The Superior Court of Justice appeal court judge
    dismissed the appeal. He rejected the fathers argument that since he had paid
    the outstanding costs awards he was entitled to a hearing on the merits on the
    questions of custody and access.

[16]

The
    father did not provide submissions on the nature of the legal test for leave to
    proceed where a leave requirement has been imposed in cases of default.

[17]

The
    appeal court judge wrote as follows:

I am prepared to assume that in considering whether to grant
    leave to proceed, [the case management judge] was required to consider whether
    [the father] 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 or reality to his proposed Motion to Change. While he appears to
    have done the former, he did not do the latter.

[18]

The
    appeal court judge noted that while there was no trial decision, there was
    evidence before the case management judge in the form of the affidavits in the
    continuing record on which she could base her custody, access and support
    orders. Further, because it entailed the exercise of discretion, the decision
    of the case management judge was entitled to deference.

Analysis

[19]

We
    agree with the father that the appeal court judge erred in deferring to the case
    management judges decision in the face of an almost complete absence of
    evidence about the childs best interests. In our view, the case management
    judge erred in denying the father leave to bring a Motion to Change after he
    had cured his default and based only on an affidavit that she had limited to
    two pages.

[20]

In
    order to make custody and access orders in the best interests of the children,
    the court generally needs the participation of both parties:
King v.
    Mongrain
, 2009 ONCA 486, 66 R.F.L. (6th) 267, at paras. 23 and 31. In some
    cases, that may not be possible. In this case, it was.

[21]

Appellate
    courts should give considerable deference to first instance decisions relating
    to custody and access. And r. 2(3) of the
Family Law Rules
appropriately
    gives judges flexibility in how to deal with family law cases, including taking
    steps to save expense and time  so long as they deal with them justly. The
    problem here, in our view, is that
as matters evolved, custody and access orders were made for
    this child in the face of almost a complete absence of written evidence upon
    which to ensure that the orders were, and continued to be, in the childs best
    interests:
King v. Mongrain,
at paras. 34-35.
In this case,
    only the mothers Application and presumably her Form 35.1
Affidavit in
    Support of Claim for Custody or Access
had ever been considered by the
    court in making what would amount to a final order about custody and access. And,
    given the two-page limit placed on any request for leave to bring a motion to
    change, it would be difficult, if not impossible, to make even a
prima facie
case that a different order was needed in the childs best interests.

[22]

As
    the father submits, the case management judges September 20, 2017 order
    effectively made her temporary order of March 16, 2017 into a final order,
    without a determination on the merits, and her decision of April 27, 2018
    effectively foreclosed a hearing on the merits.

[23]

In
    her endorsement of September 20, 2017, the case management judge specifically
    indicated that the court would take into account the payment of costs in
    determining whether permission should be granted to bring a Motion to Change. Given
    that there had been no determination on the merits, the father reasonably
    inferred that if he paid the outstanding costs, the court would grant him leave
    to bring a Motion to Change, permit him to file his Answer, and proceed on the
    Motion to Change to determine the issues on the merits.

[24]

The
    father borrowed money to pay and has paid the outstanding costs. Further, in
    the two-page affidavit, dated April 23, 2018, that he filed with the case
    management judge, he deposed that his sons skills had been regressing  a
    factor clearly relevant to the childs best interests and requiring some
    further inquiry. It appears that the only court-ordered access at the present
    time is the telephone access ordered in the temporary order on March 16, 2017.

[25]

The
    fathers Answer, dated April 18, 2017  which he included in his appeal
    materials, although it was not admitted by either the case management judge or
    the appeal judge and, like the mothers application, is as yet untested  suggests
    that increased access may, in fact, be in the sons best interests. Significantly,
    counsel for the father advises that the father now has access to the son well
    beyond the court-ordered single hour of telephone access each week. Instead, we
    are advised that the father has been seeing the son each week from Thursday
    evening until Sunday. If this is true, this may be a tacit acknowledgement by
    the parties that increased access is desirable and certainly suggests that the
    court should reconsider whether the current access order is in fact in this
    childs current best interests.

[26]

All
    of this leads us to conclude that leave should be granted to the father to
    bring a Motion to Change the parenting terms of the existing order.

Disposition

[27]

Accordingly,
    the appeal is allowed. The matter is returned to the Ontario Court of Justice
    so that the father may bring a Motion to Change the parenting order before a
    different judge.

Alexandra Hoy
    A.C.J.O.

G.T. Trotter J.A.

M. Jamal J.A.




