



COURT OF APPEAL FOR ONTARIO

CITATION: Beaver v. Hill, 2019 ONCA 520

DATE: 20190621

DOCKET: C65513 & C66285/M50431

Brown, Roberts and Miller JJ.A.

C65513

BETWEEN

Brittany
    Beaver

Applicant

(Respondent)

and

Kenneth Hill

Respondent

(Appellant)

C66285/M50431

AND BETWEEN

Kenneth
    Hill

Applicant

(Appellant/Responding
    Party)

and

Brittany Beaver

Respondent

(Respondent/Moving
    Party)

Michael S. Rankin and Andrew K. Lokan,
    for the appellant, C65513

Melvyn L. Solmon, Malliha Wilson and Gathya
    Manoharan, for the appellant, C66285, for the responding party, M50431

Harold Niman, Martha McCarthy, and
    Scott Byers, for the respondent, C65513 & C66285, for the moving party,
    M50431

Heard: June 6, 2019

On appeal from the order of Justice James
    W. Sloan of the Superior Court of Justice, dated May 24, 2018; and on appeal
    from the judgment of Justice Alex Pazaratz of the Superior Court of Justice,
    dated November 28, 2018, with reasons reported at 2018 ONSC 7138, 144 O.R. (3d)
    46.

BROWN J.A:

I.        OVERVIEW

[1]

In late 2015, Brittany Beaver commenced an
    application against Kenneth Hill, pursuant to the
Family Law Rules
,
    seeking relief under the
Family Law Act,
R.S.O. 1990, c. F.3, and
Childrens
    Law Reform Act
, R.S.O. 1990, c. C.12 (the FLA Proceeding). Ms. Beaver
    and Mr. Hill are the parents of one child, B., who is almost 10 years old.

[2]

Three matters are before this court: two appeals
    from orders made in or in respect of the FLA Proceeding and a motion to quash
    one of those appeals.

[3]

The history of this litigation has been
    described in decisions of this court and the Superior Court of Justice: 2018
    ONCA 816, 428 D.L.R. (4th) 288; 2017 ONSC 7245; 2018 ONSC 7138, 144 O.R. (3d)
    46. It need not be repeated.

[4]

In its October 12, 2018 reasons, this court, at
    para. 78, described the procedural history of this matter and issued the
    following caution and direction:

This case has developed into a procedural
    morass, to which both sides have contributed. A phalanx of lawyers appeared
    before us. The parties have made no effort to save expense or time as required
    by ss. 2(3) of the
Family Law Rules
:
Titova v. Titov
, 2012 ONCA 864 , 299
    O.A.C. 215, at para. 54. Their tactics have led to a proliferation of
    materials, skirmishes and arguments that the Rules seek to avoid. This must not
    be permitted to continue.

[5]

Last August, Pazaratz J. was designated as the
    case management judge for the FLA Proceeding. In his November 27, 2018
    Settlement Conference endorsement, he made two comments, neither of which
    disclosed the content of the settlement discussions, but both of which
    described the conduct of the parties in this litigation. He wrote:

I am led to conclude that cumulatively there
    is little indication of good faith efforts being made by anyone.



I have no control over what happens with
    respect to appeals, but I would ask that any judges hearing any pending appeals
    be mindful of the absolute frustration being experienced at this level. These
    parties just want to litigate, and as a judicial system we need to be
    delivering a consistent message that were not going to tolerate or facilitate
    such a wasteful and destructive approach to important and sensitive family law
    issues.

[6]

On January 16, 2019, at the conclusion of a
    third full day of conferencing, Pazaratz J. wrote:

At the end of three long days in October,
    November and now today, I have advised counsel that I am of the view that there
    is no demonstrated desire or intention to resolve any issues or even narrow the
    issues.

[7]

Given those comments by the case management
    judge, it is evident that the parties have not listened to this courts caution
    nor followed its direction. That is the background to the three matters argued
    before this court on June 6, 2019.

II.       APPEAL
    C66285

Motion to
    quash

[8]

Sloan J. made several endorsements and orders in
    the FLA Proceeding.

[9]

On July 27, 2018, Mr. Hill issued a notice of
    application against Ms. Beaver pursuant to rule 14.05(3)(h) of the
Rules of
    Civil Procedure
, which authorize commencing a proceeding by bringing an
    application in respect of any matter where it is unlikely that there will be
    any material facts in dispute requiring a trial (the Rule 14 Application).
    In that civil application, Mr. Hill sought the following relief: Judgment that
    the Honourable Mr. Justice Sloan recuse himself from presiding over
any further matters
in relation to the FLA Proceeding
    (emphasis added).

[10]

At a November 27, 2018 case/settlement
    conference, Pazaratz J. was asked by Mr. Hills counsel to schedule a hearing
    for the civil recusal application. Pazaratz J. heard extensive submissions from
    both parties concerning the request. On November 28, 2018 Pazaratz J. granted
    judgment as follows: THIS COURT ORDERS THAT the Application is dismissed,
    without prejudice to it being returnable in the event that the Honourable Mr.
    Justice Sloan is assigned to a future event on this file.

[11]

Mr. Hill appeals that judgment. Ms. Beaver moves
    to quash his appeal, taking the position that the judgment is an interlocutory
    order, an appeal from which requires leave of the Divisional Court.

[12]

At the hearing, the panel advised the parties
    that we would hear the appeal. These are the reasons for doing so, as well as the
    disposition of Mr. Hills request for appellate review of the order of Pazaratz
    J.

[13]

Generally speaking, a judgment dismissing a r.
    14.05(3) application under the
Rules of Civil Procedure
is a final
    order for the purpose of determining the route of appeal:
Buck Bros.
    Limited v. Frontenac Builders Ltd.
(1994), 19 O.R. (3d) 97 (C.A.), at pp.
    101-104. However, the FLA Proceeding between Ms. Beaver and Mr. Hill in which
    Sloan J. made his endorsements and orders is a proceeding under the
Family
    Law Act
and
Childrens Law Reform Act
. The
Family Law Rules
 which are intended to be a complete procedural code  apply to such a
    proceeding:
Family Law Rules
, r. 1(2);
Gray v. Gray
, 2017
    ONCA 100, 137 O.R. (3d) 65, at para. 30. The only application recognized by
    the
Family Law Rules
is the one that commences a proceeding. Once a
    proceeding is commenced under the
Family Law Rules
, any request for
    pre-trial relief, including the recusal of a judge from hearing a step in the
    proceeding, must be brought before the court by way of a
motion
in accordance with the
Family Law Rules
: rr. 2(1) and 14(1)2.

[14]

In the present case, Mr. Hill chose the wrong
    procedure to bring his recusal request before the court: he commenced a r. 14
    civil rules application when he should have brought a motion within the FLA
    Proceeding using the
Family Law Rules
. An incorrect procedural choice
    does not render his application a nullity:
Family Law Rules
, r.
    1(8.1);
Rules of Civil Procedure,
r. 2.01. That said, the characterization
    of an order under appeal that is the product of an incorrect procedural choice
    must be determined by looking at the substantive effect of the order. In the
    present case, the judgment of Pazaratz J. dismissing Mr. Hills recusal request
    on a without prejudice basis clearly is interlocutory in nature. It does not
    result in the final determination of any legal or litigation right of Mr. Hill 
    he may renew his motion in the event Sloan J. is assigned to hear a matter in
    the FLA Proceeding.

[15]

The appeal of an interlocutory order of a judge
    of the Superior Court of Justice lies to the Divisional Court, with leave:
Courts
    of Justice Act
, R.S.O. 1990, c. C.43, s. 19(1)(b). Given the procedural
    morass permeating this case and the need to move it along to a final
    adjudication on the merits, this panel secured designation as a panel of the
    Divisional Court to hear Mr. Hills request for appellate review and granted
    leave to appeal:
CJA,
s. 18(2). The panel so advised the parties at
    the hearing.

[16]

However, I would dismiss the appeal. Pazaratz J.
    was correct in the order he made. Mr. Hills appeal is without merit.

[17]

Pazaratz J. accurately described Mr. Hills
    application as one 
seeking a court order that
[Sloan J.]
not do
    something he isnt going to do anyway
 (emphasis in original): at para.
    12. As the case management judge correctly stated, if the motion was to
    proceed, it would obviously have to be decided by Sloan J.: at para. 10. In his
    capacity as case management judge, Pazaratz J. refused to schedule the
    application. He quite properly stated, at paras. 30 and 31:

Courts exist to resolve real disputes between
    parties. Not to provide opinions in response to hypothetical or academic
    problems. And certainly not to encourage or facilitate convoluted litigation
    strategies.

If the reality is that Justice Sloan would not
    be assigned to future events on this file anyway, then a motion seeking his
    recusal is not only premature  its pointless and purely hypothetical.

[18]

Pazaratz J. then made the common sense proposal
    to Mr. Hills counsel to adjourn the recusal request indefinitely and only
    bring it back on if there were a suggestion that Sloan J. would be assigned to
    hear or deal with a step in the case. Surprisingly, that common sense proposal
    was rejected. Pazaratz J. thereupon dismissed the application, without
    prejudice to Mr. Hill bringing a motion  the proper procedure  back on in the
    event that Sloan J. is assigned to this proceeding.

[19]

That disposition of the application/motion was
    open to Pazaratz J. in his capacity as the case management judge. The
    disposition accorded with and promoted the objectives of the
Family Law
    Rules
as stated in rr. 2(2) and 2(3). It also furthered the direction of
    this court in its October 12, 2018 reasons that [t]he case going forward
    requires active and determined case management. I see no error by Pazaratz J.
    In fact, I completely agree with the common sense disposition he made by, in
    effect, deferring the issue of whether Sloan J. could hear any future matters
    until such time as Sloan J. was assigned to do so. That was a proper direction
    for the case management judge to make with respect to any intended motion:
Family
    Law Rules
, r. 17(4)(i).

[20]

I would also observe that the expansive case
    management powers possessed by judges under r. 2 of the
Family Law Rules
include the duty to promote active management of cases by considering whether
    the likely benefits of taking a step justify the cost. As I read the reasons
    of Pazaratz J., that is precisely what he did in dismissing Mr. Hills recusal
    request on a without prejudice basis.

[21]

I make one final comment. Mr. Hill submits that,
    notwithstanding the singular relief sought in his notice of application, the
    purpose of his recusal application actually was two-fold: (i) to determine
    whether Sloan J. should recuse himself from hearing any future matter; and (ii)
    to determine whether Mr. Hill is entitled to set aside all prior orders made by
    Sloan J. As Pazaratz J. quite correctly stated, if any party disagreed with the
    merits of an order made by Sloan J., it was open to that party to appeal the
    order or move to set it aside, in accordance with the process and timeframes
    set out in the
Rules of Civil Procedure
and the
Family Law Rules
.
    That is precisely
what
Mr. Hill did in respect of the May 28, 2018
    order of Sloan J. fixing interim child support and s. 7 expenses. The
    Divisional Court dismissed his application for leave to appeal by order dated
    February 15, 2019.

Disposition

[22]

For these reasons, leave to appeal from the order
    of Pazaratz J. made November 28, 2018 having previously been granted to Mr. Hill
    by the panel, sitting as the Divisional Court, I would dismiss the appeal.

[23]

Ms. Beaver is entitled to her costs of this
    matter on a partial indemnity basis, which I would fix in the amount of
    $22,000, including disbursements and applicable taxes, payable within 5
    business days of this order.

III.      APPEAL C65513

Overview

[24]

The other appeal concerns the order of Sloan J.
    dated May 24, 2018, in which he dismissed the part of a motion by Mr. Hill that
    sought leave to amend his Answer and Claim to seek custody of their child, B.
    Specifically, Mr. Hill sought leave to amend to request an order that B.
    reside with Mr. Hill as follows: a) primarily with [Mr. Hill]; or in the
    alternative, b) equally with [Ms. Beaver and Mr. Hill]; or in the alternative,
    c) with [Ms. Beaver] and [Mr. Hill] shall have access with [B.] as may be
    agreed upon by the parties.

[25]

In his reasons, Sloan J. observed, based on the
    evidence before him that: B. has been in the custody and care of Ms. Beaver
    the vast majority of the time since he was born; Mr. Hill saw B.
    infrequently; Mr. Hill initially had questioned his paternity of the child;
    and, Mr. Hills counsel had represented to this court in March 2018 that
    custody was not an issue. Sloan J. stated in his endorsement:

Under all the circumstances of this case [Mr.
    Hills] actions speak louder than words. I can come to no other conclusion on
    the material before me that the proposed claim for custody amendment is meant
    to intimidate the applicant and for the respondent to get more leverage than he
    already has over the financial issues.

Further, to the extent I can on the material
    filed, I find it would not be in the best interest of [B.] to be caught in the
    middle of what I believe to be a manufactured custody battle.

[26]

Sloan J. dismissed Mr. Hills motion for leave
    to amend his Answer and Claim dated February 4, 2016 to seek custody of the
    child, B. However, on consent, Sloan J. ordered that Mr. Hill shall not be
    precluded from seeking further amendments to his Answer and Claim, provided
    that he meets the criteria for doing so as set out in the Rules and relevant
    case law.

[27]

Mr. Hill appeals and asks this court to grant
    him leave to amend his Answer and Claim to seek custody of B. However, at the
    hearing, counsel for Mr. Hill clarified that his client was not seeking the
    approval of this court for any particular form of an amended Claim.

Analysis

[28]

At the hearing of the appeal, counsel was asked
    whether this appeal had been overtaken by events that occurred after Sloan J.
    made his May 24, 2018 order. The question was asked of counsel because of the
    following sequence of events.

[29]

On February 4, 2016 Mr. Hill delivered his
    initial Answer and Claim. In that pleading, Mr. Hill agreed with Ms. Beavers
    claim for a final order granting her sole custody of B., with primary residence
    to be with her.

[30]

That was followed by Mr. Hills delivery on June
    8, 2016 of a Fresh as Amended Answer and Claim. Again, in his Answer, Mr. Hill
    agreed with Ms. Beavers claim for a final order granting her sole custody of
    B., with primary residence to be with her. Notwithstanding that admission, in
    his Claim Mr. Hill sought custody of B.

[31]

In para. 4 of her December 8, 2017 order,
    Chappel J. struck out Mr. Hills June 8, 2016 Fresh Answer and Claim, without
    leave to amend: 2018 ONSC 7245, at paras. 128 and 157. On March 26, 2018,
    Roberts J.A. stayed that part of Chappel J.s order. In her reasons, Roberts
    J.A. noted that Mr. Hill does not take issue with the son remaining in the
    custody of Ms. Beaver: at para. 4.

[32]

Sloan J. then made his order dismissing Mr.
    Hills motion for leave to amend, which is the subject-matter of this appeal.

[33]

Next, by order dated June 11, 2018 made on a 14B
    motion, Sloan J. granted sole custody of B. to Ms. Beaver. Mr. Hill has not
    appealed that order. However, on June 18, 2018 he did file a rule 14B motion to
    set the order aside.

[34]

On August 9, 2018, Mr. Hill moved before this
    court for leave to amend his Answer and Claim. The draft amended Answer and Claim
    filed with this court included a claim for access to B. but no claim for
    custody. Nordheimer J.A. heard the motion and dismissed it. He endorsed the
    record: If the appellant is successful in getting the right to seek to amend
    his Answer and Claim the formal motion to amend will properly [be] dealt with
    in the SCJ.

[35]

On August 29, 2018 Pazaratz J. was appointed
    case management judge.

[36]

On September 11, 2018 the parties argued Mr.
    Hills appeal to this court from the order of Chappel J. By order dated October
    12, 2018, this court allowed the appeal, in part, set aside para. 4 of the
    order of Chappel J., which dismissed the constitutional claim, and
    substituted the following: The Respondents Amended Answer and Claim dated
    June 8, 2016 is struck, with leave to amend.

[37]

During the hearing of the appeal on September
    11, 2018 Mr. Hills counsel handed up to the court a draft of his clients
    proposed Amended Answer and Claim. In the Answer part of the document, Mr. Hill
    did not agree with Ms. Beavers claim for sole custody. However, in the Claim
    portion, Mr. Hill indicated that he was not making any claim for custody of B.
    but was making a claim for access to B.

[38]

The endorsement made by Pazaratz J. at the
    October 17, 2018 case conference records, as Item 5: Without prejudice to the
    disposition of the request to file an amended Answer, [Mr. Hill] shall serve
    the Applicants counsel with a final version (final dealing with all issues) of
    the Amended Answer he seeks to file, no later than November 13, 2018.

[39]

Counsel provided the panel with a copy of the Amended
    Answer and Claim sent by Mr. Hills counsel to Ms. Beavers in compliance with
    that direction. Whereas in the August and September proposed Amended Answer and
    Claims submitted by Mr. Hill to this court he did not assert a claim for
    custody, in the November 13, 2018 draft he claims joint custody of B. with Ms.
    Beaver.

[40]

This chronology discloses three things. First,
    Mr. Hill repeatedly has represented to this court that he is not seeking
    custody of B. However, in drafts of Amended Answers and Claims filed or served
    in the court below, Mr. Hill has taken the contrary position. Mr. Hill has
    changed his position on custody with some frequency, in some cases within the
    span of a few weeks.

[41]

Second, as the record in this proceeding now
    stands, the issue of the custody of B. was determined by the final order of
    Sloan J. dated June 11, 2018. The record also discloses that:

(i)

Mr. Hill has not appealed that order;

(ii)

One year ago  on June 18, 2018  Mr. Hill filed
    a 14B motion with the Superior Court of Justice to set aside that final order;
    and

(iii)

Mr. Hill has not sought to move that motion along, notwithstanding
    the appointment of a designated case management judge.

[42]

Third, given the existence of the final order
    granting Ms. Beaver custody of B., the earlier May 24, 2018 order of Sloan J.
    dismissing Mr. Hills motion for leave to amend his pleading to claim custody was
    superseded by the June 11, 2018 final order. Yet, instead of appealing that
    final order, Mr. Hill has appealed the superseded May 24, 2018 order. He is
    challenging the wrong order. Accordingly, his appeal is dismissed.

[43]

I note that counsel for Ms. Beaver informed the
    court that her client consents to Mr. Hill amending his Answer and Claim to
    seek relief regarding access and terms of access.

Disposition

[44]

The appeal is dismissed.

[45]

Ms. Beaver is entitled to her costs of this
    appeal on a partial indemnity basis, which I would fix in the amount of
    $25,000, including disbursements and applicable taxes, payable within 5
    business days of this order.

IV.     FINAL
    COMMENT

[46]

I conclude with a comment about the process that
    has brought these two appeals before us. As mentioned, in its October reasons
    this court stated that this case has developed into a procedural morass. Both
    appeals are examples of that morass. In both appeals, Mr. Hill has attempted to
    challenge orders made below by resorting to indirect, convoluted procedural
    tactics, instead of taking the direct routes of review open to him under the
Family
    Law Rules
and
Rules of Civil Procedure
. Such tactical
    indirectness not only drives up the parties legal fees, it also delays
    bringing certainty to the life of a 9-year old boy whose best interests seem to
    have been completely lost in the high conflict litigation battle between his
    father and mother.

[47]

I repeat what this court directed eight months
    ago: This must not be permitted to continue.

Released: DB JUN 21 2019

David Brown J.A.

I agree. L.B. Roberts J.A.

I agree. B.W. Miller J.A.


