



COURT OF APPEAL FOR ONTARIO

CITATION: D.G. v. A.F., 2015 ONCA 290

DATE: 20150429

DOCKET: C59175

Laskin, Lauwers and Hourigan JJ.A.

BETWEEN

D.G.

Respondent (Appellant)

and

A.F.

Applicant (Respondent)

D.G., acting in person

A.F., acting in person

Heard:  April 10, 2015

On appeal from the order of Justice Francine E. Van Melle
    of the Superior Court of Justice, dated July 11, 2014, with reasons reported at
    2014 ONSC 4193.

Lauwers J.A.
:

[1]

In the final order under appeal, the motion judge set the appellants
    child support obligation and her contribution to the childrens day care
    expenses. She also permitted the respondent to move with the children from
    Halton to Hamilton and ordered the appellant to pay trial costs.

Background

[2]

The background to this high-conflict family matter is set out in the
    motion judges reasons and in the trial judges reasons, reported at 2012 ONSC
    764. The motion judges task was to complete the review of the case ordered by
    the trial judge, and to deal with trial costs.

[3]

The major dispute between the parties throughout concerns custody of and
    access to their children. At every opportunity, including this appeal, the
    appellant has earnestly sought to have reversed the trial judges award of
    custody to the respondent and supervised access to the appellant. In her factum,
    the appellant raises concerns with the trial decision, showing that she does
    not accept the trial outcome despite the dismissal of her appeal. She seeks custody
    of the children, which is not a remedy that is open to her on this appeal; she has
    been unwilling to work within the custody and access regime that resulted from
    the trial.

[4]

In the decision under appeal, the motion judge noted, at para. 4:

I have told [D.G.] on numerous occasions that it is up to her
    to provide names and resumes for proposed access supervisor. I have described
    to her the qualifications for an access supervisor. I have suggested names to
    her.

[5]

As the motion judge explained, at para. 5:

Each time this matter is before me I have indicated to [D.G]
    that I would like nothing better than to get her access started. She, however,
    seems completely unable to comply with the conditions that I have set out.

The motion judge added, at para. 15:

[N]o matter how [D.G.] feels about the custody and access
    orders in this proceeding she must comply with my Orders so that she can see
    her children. [A.F.] wants her to see the children. He understands that it is
    important for the children to have a relationship with their mother. So much so
    that he has put forward his own suggestions for an access supervisor.

[6]

The motion judge observed that respondents efforts at identifying an
    access supervisor who would be acceptable to the appellant have not been
    successful, noting, at para. 3,

[A]ny name put forward by him will be viewed with suspicion by [D.G.].
    Indeed, despite the fact that [D.G.] is not seeing the children as a result of
    her own failure to propose an adequate supervisor she states, yet again, that [A.F.]
    is withholding the children from her.

[7]

This appeal, simply said, and most unfortunately, has postponed the
    appellants compliance and prolonged the time during which her children have
    not had access to her.

Analysis

(1)

Did the motion judge improperly seize herself of the matter?

[8]

The appellants main complaint in this appeal is that the motion judge
    chose to remain seized of this matter because the trial judge, who had seized
    himself, has been transferred from the jurisdiction. The motion judge took this
    role on when she was Regional Senior Justice and has retained jurisdiction
    since stepping down from that position.

[9]

The appellant seeks to escape the motion judges influence. She argues
    that the motion judge had no basis for seizing herself of the case
    indefinitely. The appellant argues that this effectively puts the motion judge
    in a conflicting position because any motions to change will inevitably involve
    the motion judge in reviewing her own decisions. The appellant fears that the motion
    judge will not treat her fairly.

[10]

I
    would reject this ground of appeal.

[11]

Active
    case management is one of the underlying philosophies of the
Family Law
    Rules
, O. Reg. 114/99. Rule 2(5) places an obligation on courts to
    actively manage cases in order to promote just resolutions. Active case
    management is defined in the
Rules
as including the early
    identification of issues in a case, setting timetables or otherwise controlling
    the process of the case.

[12]

Rule
    39(9) lists the functions of a case management judge, who is required to
    supervise the progress of the case, to conduct conferences and to hear motions.
    Rule 39(9) is seen as the gold standard of case management, but it only applies
    to cases in unified Family Court jurisdictions. Since this case was not decided
    at a unified Family Court site, the more sparse case management provisions of r.
    41 apply. This rule does not explicitly list the functions of a case management
    judge. This distinction in the
Rules
reflects the fact that unified
    sites historically had more judicial resources and therefore could provide more
    active case management.

[13]

However,
    nothing in the
Family Law Rules
precludes a judge from using her
    inherent jurisdiction, and the obligation to actively case manage under r. 2(5),
    to seize herself of a case. This is the best means of promoting the objectives
    of the Rules and ensuring that cases are dealt with justly as required by r. 2(3).

[14]

In
Norman v. Connors
, 2010 ONSC 1975, [2010] O.J. No. 1564, at para. 34, Gordon
    J. noted that in non-unified Superior Court sites, litigants are sometimes
    denied the benefit of active case management as described in r. 39.  Despite
    the lack of resources, he stated that the court must step in and impose case
    management, by relying on the general provisions of the
Rules
and the
    courts inherent jurisdiction.  This is particularly so in high conflict
    cases.

[15]

I
    would agree with this approach to case management. It permits reasonably quick
    access to justice before a judge who is familiar with the relevant facts and
    with the parties. It is proportionate, within the meaning of r. 2(3), since the
    frequent resort to the court in high-conflict cases would otherwise rapidly
    consume too many judicial resources, as judge after judge is forced to learn
    the details of an ever-burgeoning file.

(2)

Does the Supreme Courts decision in
Doucet-Boudreau v. Nova Scotia
have application?

[16]

The
    appellant makes an allied argument that once the motion judge completed the
    tasks left by the trial judge in his decision, she was
functus officio
and could no longer exercise jurisdiction. For this proposition, she cites
Doucet-Boudreau
    v. Nova Scotia (Minister of Education)
, 2003 SCC 62, [2003] 3 S.C.R. 3. In
    my view, for the reasons that follow,
Doucet-Boudreau

has
    virtually no application to this appeal.

[17]

Doucet-Boudreau
was a case about minority language education rights in Nova Scotia under s. 23
    of the
Canadian Charter of Rights and Freedoms
, Part I of the
Constitution
    Act
,
1982, and particularly, the remedial jurisdiction of a trial
    judge under s. 24(1). The issue before the Supreme Court was set out at
    para.12:

The main issue in the appeal is simply this: having found a
    violation of s. 23 of the
Charter
and having ordered that the Province
    make its best efforts to provide homogeneous French-language facilities and
    programs by particular dates, did the Nova Scotia Supreme Court have the
    authority to retain jurisdiction to hear reports from the Province on the status
    of those efforts as part of its remedy under s. 24(1) of the
Charter
?

[18]

The
    majority concluded that the trial judge had not violated the doctrine of
functus
    officio
by retaining jurisdiction to hear reports over the Provinces
    progress in remedying the
Charter
violation that he had found
.

[19]

The
    appellant cites para. 79 of the majority decision, where the Court explains the
    basis of the doctrine of
functus officio
:

It is clear that the principle of
functus officio
exists to allow finality of judgments from courts which are subject to appeal
    (see also
Reekie v. Messervey
, [1990] 1 S.C.R. 219, at pp. 222-23).
    This makes sense: if a court could continually hear applications to vary its
    decisions, it would assume the function of an appellate court and deny
    litigants a stable base from which to launch an appeal. Applying that aspect of
    the
functus
doctrine to s. 23(1), we face the question of whether
    the ordering of progress reports denied the respondents a stable basis from
    which to appeal.

[20]

The
    appellant also cites para.105 from the dissent:

A court purporting to retain jurisdiction to oversee the
    implementation of a remedy, after a final order has been issued, will likely be
    acting inappropriately on two levels. First, by attempting to extend the
    court's jurisdiction beyond its proper role, it will breach the separation of
    powers principle. Second, by acting after exhausting its jurisdiction, it will
    breach the
functus officio
doctrine.

[21]

The
    reasoning in
Doucet-Boudreau
has only limited application to this
    appeal, for the following reasons.

[22]

First,
    the court must exercise great caution before migrating concepts from
    constitutional cases to other areas of the law. For example, the separation of
    powers principle was engaged in
Doucet-Boudreau
, and formed the basis
    of the minoritys position that implementation of the
Charter

remedy
    was the exclusive responsibility of the provincial government.

No
    similar concept applies in this family law case.

[23]

Second,
    the majority in
Doucet-Boudreau
found, at para. 80, that the
    requirement for the Province to report back to the trial judge did not engage
    the
functus officio
doctrine since it did nothing to undermine the
    provision of a stable basis for launching an appeal. That is also true in this
    case. Any successful motion to vary would result in a final order that would be
    appealable, just like the appellants appeal of the motion judges decision.

[24]

Third,
    the majority found, at para. 81, that the
functus officio

doctrine
    yields to the rules of civil procedure insofar as they allow courts to vary or
    add to their orders so as to carry them into operation or even to provide other
    or further relief than originally granted.

[25]

This
    fits comfortably with the concept of motions to change in family cases. Family
    law orders sometimes need to be varied, rescinded or altered based on changing
    circumstances. The
Divorce Act
, R.S.C. 1985, c. 3 (2nd Supp.), the
Federal
    Child Support Guidelines
, S.O.R./97-175, and the
Family Law Rules

all expressly contemplate that final orders will, on occasion, need to be
    altered
.
In this case, the respondent followed the procedure set out in
    the
Family Law Rules
, by bringing a motion to change.  In such
    circumstances, the doctrine of
functus officio

is not
    violated.

[26]

Finally,
    the appellant expresses concern about the motion judges possible partiality to
    the respondent. Actual bias is an independent basis for challenging a decision
    that is not affected by the

functus officio

doctrine. There is
    no evidence in this case that the motion judge was partial to the respondent. The
    motion judges concern for all the parties including the appellant and the
    children is manifest in the language that she uses in her endorsements. The
    fact that she ruled against the appellant does not establish partiality.

[27]

To
    conclude, the Supreme Courts reasoning in
Doucet-Boudreau

does
    not affect this appeal.

(3)

Did the trial judge wrongly award trial costs to the respondent?

[28]

The
    appellant argues that the motion judge wrongly awarded the trial costs to the
    respondent. She states she was not given an opportunity to argue the issue of
    costs, but would have argued that r. 57.01(2) of the
Rules of Civil
    Procedure
, R.R.O. 1990, Reg. 194, applied such that she was entitled to
    costs despite being the unsuccessful party. Further, she would have argued that
    the respondent wrongly gave consent for the childrens therapy, an issue that
    loomed at trial, which she submits is a relevant consideration under r.
    57.01(1)(d) and (g), militating against awarding costs to the respondent.

[29]

The
    issue of costs was live before the motion judge; the appellant should have been
    prepared to argue it, but was not.

[30]

The
    respondent states that he provided evidence of the legal expenses that he
    incurred to the motion judge along with offers to settle. He was seeking about
    $90,000 and was awarded $80,000.

[31]

It
    is quite evident that the motion judge made the costs award based on the
    respondents success at trial, and her review of the material, which implicitly
    addressed the r. 57 factors. There is, on this record, no basis for the
    argument that the appellant was entitled to costs as an unsuccessful party.
    Having ordered the award she did, the motion judge was not prepared to require
    each party to bear its own costs. Therefore, this ground of appeal also fails.

Disposition

[32]

I
    encourage the appellant to comply with the access orders and to make the
    required arrangements as soon as possible so that, with successful experience,
    more normal access arrangements could be justified. There is no short cut
    available to the appellant.

[33]

The
    appeal is dismissed. If either party wishes to seek the costs of this appeal,
    written submissions of no more than five pages in length may be served and
    filed within 10 days of the date of this decision.

Released: April 29, 2015 PL

P.
    Lauwers J.A.

I
    agree John Laskin J.A.

I
    agree C.W. Hourigan J.A.


