



COURT OF APPEAL FOR ONTARIO

CITATION:
D.G. v. A.F., 2014 ONCA 436

DATE: 20140528

DOCKET:   M43734  M43752  C57829

Lauwers J.A. (In Chambers)

BETWEEN

D. G.

Applicant

and

A. F.

Respondent

D. G., acting in person

A. F., acting in person

Heard:  May 8, 2014

On application for an extension of time to move to set
    aside the order of Doherty J.A. dated March 14, 2014.

ENDORSEMENT

[1]

The applicant moves under rule 3.02 of the
Rules of Civil Procedure
for an order extending the time within which she may pursue a motion before a
    panel of this court, under s. 7 of the
Courts of Justice Act,
to set
    aside the order of Doherty J.A. dated March 14, 2014. The time for such a
    motion is limited by rule 61.16 of the
Rules
to four days. As a result
    of faulty legal advice, the appellant was of the mistaken view that she had 30
    days to bring the motion.

[2]

The respondent brings a cross-motion for an order: that any further
    litigation from the appellant regarding myself and the children be done through
    a new application to request leave to do so.

A.

Overview

[3]

This is a bitterly contested family law case.  Justice A.J. Goodman
    heard the trial over 16 days and issued a decision on February 3, 2012,
    reported as 2012 ONSC 764. The decision, at 89 pages, is thorough.  The trial
    judge issued a detailed order, under which the respondent obtained exclusive
    custody of the couples children, X. F. F., born March 31, 2007, and S. R. F.,
    born July 25, 2008. While the applicant has been pursuing this appeal, she has chosen
    not to see her children, despite an access order.

B.

Procedural History

[4]

This is the litigation history:


i.

The trial began on November 7, 2011 and continued intermittently for
    sixteen days until February 1, 2012. The decision was issued on February 3,
    2012.


ii.

The applicant mistakenly appealed to the Divisional Court, and perfected
    her appeal in November 2012. The appeal languished for 18 months at the
    Divisional Court when she discovered that she was in the wrong court.


iii.

First extension granted by Weiler J.A. on September 23, 2013 requiring
    the applicant to perfect by October 30, 2013.


iv.

Second extension granted by Doherty J.A. on October 30, 2013 requiring
    the applicant to perfect by to December 2, 2013.


v.

Third extension granted by Rosenberg J.A. on December 9, 2013 requiring
    the applicant to file transcripts by December 13, 2013 and to perfect by
    December 16, 2013.


vi.

Registrar dismissed the appeal for delay on December 31, 2013


vii.

Fourth extension granted by Laskin J.A. on February 6, 2014 requiring
    the applicant to perfect by February 28, 2014. The Registrars dismissal order
    was set aside.


viii.

Registrar dismissed the appeal for delay for the second time on March 6,
    2014.


ix.

Motion to set aside the Registrars dismissal order and for a fifth extension
    refused by Doherty J.A. on March 14, 2014.

[5]

Should leave be granted to extend the time within which the applicant can
    have Doherty J.A.s dismissal decision reviewed by a panel of this court?

C.

The Positions of the Parties

[6]

The applicant submits that there was no reason for Doherty J.A. to have
    refused her leave to perfect the appeal when she attended before him on March
    14, 2014. She explains that she had the appeal material with her to be served
    and filed, and the appeal could have been perfected that day, but she needed
    leave to do so and to have the Registrars dismissal order set aside. Her
    explanation for being unable to comply with the February 28, 2014 date set by
    Laskin J.A. was that, in order for the registrar to accept the Appeal Book and
    Compendium under rule 61.10(1)(j), she needed to file the certificate
    respecting evidence referred to in rule 61.05.  But she could not, because one
    last transcript from the hearing on January 24, 2012, was not available in time.

[7]

The respondent submits that the applicant should have been able to
    perfect the appeal in this court, because it had been perfected in the
    Divisional Court many months ago. The appellant explains that she wanted to
    pursue a new angle on the appeal, which was the added issue of the absence of
    informed consent to the assessment and treatment of the children by the experts
    who testified against her at trial; it had not been part of the Divisional
    Court appeal. That required more transcript evidence to be prepared, hence the
    added delay.

[8]

The respondent points out that this litigation has been going on for
    more than four years, and pleads for relief:

This continuous litigation is exhausting and taking my energy
    and financial resources away from the children and I and it needs to stop or at
    least be ordered that further litigation be done through new applications for
    leave. I verily believe that granting any further extensions, further
    dismissals, or lenience to the appellant would only give the appellant another
    opportunity to repeat her behaviour. My family can no longer participate in
    supporting this kind of negative behaviour and harassment.

D.

The Judgment under Appeal

[9]

The core of the judgment is found in paras. 227-230 of the trial judges
    reasons:

I accept that the children suffer from disorganized attachment
    and that they do not feel safe. I accept that the mother's path of paranoia and
    course of conduct has and continues to adversely influence and affect the
    children and this continued behaviour will eventually lead to further
    behavioural problems. The plethora of serious, unsubstantiated and bald
    accusations of abuse by Ms. [G.] and her mother, coupled with the continual
    roadblocks to Mr. [F.]'s meaningful contact with his children has gone on for
    several years.

The evidence demonstrates that Ms. [G.] was not satisfied with
    the efforts and assistance of the therapists at the Willow Centre, the CAS in
    Halton and Peel, the Halton Regional Police, the Peel Regional Police, the SCAN
    unit, and various other doctors or health care practitioners. In Ms. [G.]'s
    opinion, no therapist, doctor or social service agency has ever truly answered
    her concerns about the children. I doubt that any agency or professional will
    ever be able to meet her expectations absent a total recommendation by someone
    to eliminate the father from the children's lives. Ms. [G.] refuses to
    acknowledge that she or her family may be the genesis or a part of the problem
    leading to the children's disorganized attachment issues.

I have considered the evidence and specifically noted the
    mother's conduct in court, her responses to questions, her testimony and her
    questioning of witnesses. In my view, her fixation on the children and her
    unwillingness to accept that her perceptions may be false, erroneous or worse,
    is clearly borne out and corroborated by the evidence, her questioning and her
    own demeanour.

Despite many complaints raised by Ms. [G.] over the years, no
    agency, police organization, CAS or health care professional has ever
    substantiated her allegations and no charges were ever laid. I find that these
    repeated and unsubstantiated allegations by Ms. [G.] have had an adverse
    impact on the children but have also tarnished Mr. [F.]'s reputation.

[10]

The
    applicant has not retreated at all from the position she took at trial. She
    wants this position to be vindicated on appeal, and believes that this would be
    in the best interests of her children.

E.

Analysis

[11]

In
    my view, the test to apply to the applicants request for an extension of time should
    be the same as the test on a motion to set aside a Registrars order dismissing
    an appeal for delay, since such an order was at the root of the motion before
    Doherty J.A. That test was succinctly stated by Weiler J.A. in
Paulsson v.
    Cooper,
2010 ONCA 21, [2010] O.J. No.123, at para. 2:

The factors a court should consider in deciding whether to
    grant this type of motion are well-known. They are: whether the applicant had
    an intention to appeal within the time for bringing an appeal; the length of
    the delay, and any explanation for the delay; any prejudice to the respondent
    caused by the delay; and the justice of the case. This last factor is most
    important and requires a consideration of the merits of the appeal.

[12]

I
    decline to exercise my discretion and extend the time within which the
    applicant may move before a panel of this court to set aside the decision of Doherty
    J.A.  I do so for two reasons, both of which fall under the last factor set out
    by Weiler J.A. in
Paulsson
.  First, in my view, the appeal has little
    if any merit. Second, such an order would not be in the best interests of the
    children.

[13]

I
    set out my reasoning for these conclusions below.

(1)

Intention to Appeal, Explanation for Delay and Prejudice

[14]

The
    problem here is not with the applicants intention, which I am satisfied has
    always been to appeal, but in her belated execution of that intention.

[15]

The
    applicant explains that the delay attributable to the Divisional Court appeal
    resulted from faulty legal advice. She has explained the other delays in her
    motions before this court in ways that have satisfied my colleagues.  I am
    satisfied with her explanation for failing to perfect by February 28, 2014 in
    compliance with the order of Laskin J.A. She advises that the faulty legal
    advice given to her was that she had 30 days within which to request that the
    order of Doherty J.A. be reviewed by a panel of judges under s. 7 of the
Courts
    of Justice Act
. Her explanations are plausible.

[16]

Is
    any prejudice to the respondent caused by the delay? In my view, there is no
    prejudice in the traditional sense that the cases consider, such as the death
    of witnesses or the destruction of evidence. The respondent points to the
    numerous motions and attendances that he has been forced through since the
    trial ended. That is not, however, the kind of prejudice contemplated by the
    test. But the affected interests in a custody and access case cannot be
    entirely measured by the ordinary test. The delay is clearly prejudicial to the
    children and their best interests, as I explain below.

(2)

The Justice of the Case

[17]

I
    address this factor, first, as a matter of the merits of the appeal, and
    second, considering the best interests of the children.


i.

The Merits of the Appeal

[18]

As
    noted in
Van de Perre v. Edwards
, 2001 SCC 60, [2001] 2 S.C.R. 1014, at
    para 13, the standard of review is very high:

Finality is a significant consideration in child custody cases,
    maybe more so than in support cases, and reinforces deference to the trial
    judge's decision an appellate court may only intervene in the decision of a
    trial judge if he or she erred in law or made a material error in the
    appreciation of the facts.

[19]

The
    applicant raises two substantive legal arguments. The first relates to the
    proper application of section 10 of the
Health Care Consent Act, 1996
,
    S.O. 1996, c. 2 Schedule A, which obliges a health care practitioner to obtain
    a persons consent to treatment or the consent of a persons substitute
    decision-maker, which, in the case of a child, is the custodial parent. She
    relies especially on s. 20(1)(5) of the Act, which gives a parent who has only
    a right of access no right to consent to a childs assessment or treatment.

[20]

The
    applicant asserts that the respondent was only an access parent from February
    18, 2010 to February 3, 2012, when he admitted giving consent to the childrens
    therapy or treatment by the Willow Centre.

[21]

Justice
    Hourigans order on February 18, 2010 gave the applicant interim custody of the
    children, but this element of his order was set aside on a without prejudice
    basis by Justice Coats on May 20, 2010. At that point both parents had custody
    and therefore rights to consent to treatment even though the children continue
    to reside with the applicant. I am unable to see any merit in the applicants
    consent to treatment argument.

[22]

The
    applicants second legal argument is that the access conditions set by the
    trial judge are improper. This relates to para. 12 of the trial judges order,
    which provides:

Notwithstanding the aforementioned, Ms. [G.] may be permitted
    access to [X.] and [S.] if the medical professionals or therapists at the
    Willow Centre, or Dr. Goldstein deem it appropriate and beneficial for the
    children in the furtherance of the counselling or treatment of the children to
    engage in such supervised visits with their mother. This discretion for
    supervised access shall remain in the sole discretion of the aforementioned
    medical professionals or therapists and shall be undertaken under the
    supervision of a designated mental health care professional treating [X.] and [S.].

[23]

The
    trial judge explained his reasoning, at para. 240:

As I see it, the professionals at the Willow Centre and Dr.
    Goldstein can continue to assist the father and the children. Regrettably, they
    cannot assist the mother as she has lost trust in these professionals. It is to
    the children's and their father's benefit to continue counselling and therapy.
    The father will have sole discretion to decide what is in the children's best
    interests as far as medical, educational or psychological treatment is
    concerned. All these terms are necessary to permit father to parent [X.] and [S.]
    in their best interests.

[24]

The
    applicant argues, however, that this order falls afoul of the decision of this
    court in
Strobridge v. Strobridge
(1994), 18 O.R. (3d) 753, which was
    summarized by Justice S. Goodman in
Childrens Aid Society of Toronto v.
    D.P.
, 2005 CanLII 5878 (ON SC), at paras. 34-35:

In
Strobridge v. Strobridge

1994 CanLII 875 (ON CA)
,
    (1994), 18 O.R. (3d) 753, 72 O.A.C. 379, 115 D.L.R. (4th) 489, 4 R.F.L. (4th)
    169, [1994] O.J. No. 1247, 1994 Cars­well­Ont 400 (Ont. C.A.), Appeals Justice
    Coulter Osborne specifically relied on a child protection decision when he
    stated as follows:

.

. .  I
    agree that [the application judge] erred in assigning to the London Custody
    Access Project the decision whether and under what circumstances access would
    be exercised.  There is no statutory, or other, authority which would
    permit this delegation.
Childrens Aid Society of Durham Region v. Catherine
    W. and Keith W.
, [1991] W.D.F.L. 588, 4 O.F.L.R. 112, [1991] O.J. No. 552
    (Ont. Gen. Div.), per Justice Gilbert L. Murdoch, upheld by this court at
    (1992), 31 A.C.W.S. (3d) 1007, [1992] W.D.F.L. 481, 5 O.F.L.R. 125, [1992] O.J.
    No. 265 (Ont. C.A.).

In
Strobridge v. Strobridge
, counsel had agreed that the
    effect of the motion judges order (i.e., reasonable access to the children
    but such access shall be exercised subject to the discretion of a member of the
    London Custody & Access Project) was to leave the issue of access with the
    LCAP.

I also note that, subsequent to the Divisional Court decision
    of
Christopher H. v. Durham Childrens Aid Society and Kathryn H.
, in
MacDonald
    v. Magel

2003 CanLII 18880 (ON CA)
, (2003), 67 O.R.
    (3d) 181, 176 O.A.C. 201, 231 D.L.R. (4th) 479, 43 R.F.L. (5th) 149, [2003]
    O.J. No. 3707, 2003 Cars­well­Ont 3606, the Court of Appeal again cited
Strobridge
    v. Strobridge
in support of its decision to set aside an order in which the
    court, after a lengthy trial, had continued a prior supervised access order and
    then left up to a properly qualified psychiatrist, with input from the
    childrens doctor, the decision when a mothers supervised access would become
    unsupervised.  Appeals Justice Marc Rosenberg stated, as follows, that the
    decision:

appears to leave decision making in
    the hands of third parties.  There is no authority that would permit this
    type of delegation.  See
Strobridge
. . .

[25]

In
    his endorsement dated February 5, 2014, Laskin J.A. said that this might be an
    arguable issue. However, the merits of this argument must be evaluated in
    light of the custody and access orders that were made after the order with which
    the applicant takes issue. In paragraph 23 of the order, Justice Goodman
    remained seized of the matter and required the parties to return, on July 5,
    2012, before a judge of the Superior Court to set a date for review. When
    Justice Goodman transferred out of the region, review responsibility fell to
    Regional Senior Justice Van Melle.  Rosenberg J.A. summarized R.S.J. Van
    Melles orders in his endorsement dated December 9, 2013, at para. 5:

Since that time the case has been reviewed by Van Melle R.S.J.
    on September 10, 2012, February 1, 2013, and March 12, 2013. Despite Van Melle
    R.S.J. providing clear directions as to how the mother could commence access to
    the children, the mother has failed to take the necessary steps.

[26]

In
    her endorsement dated March 12, 2013, R.S.J. Van Melle stated, at paras. 7-8:

If Ms. [G.] wishes to have her own qualified person present
    at access visits, she should put forward the name and qualifications of that
    person.

Ms. [G.] asked me who a qualified person would be. If she
    chooses not to consult a professional on the list in my September endorsement,
    she should find someone who is either a psychologist or a psychiatrist with
    child-related experience. After reviewing the information, I will decide
    whether or not the person is appropriate.

[27]

The
    applicant does not trust Dr. Goldstein or staff of the Willow Centre. She fears
    that any access they supervise would result in more negative evidence directed
    at her. It seems to me, however, that the access arrangements established by
    Goodman J. were, for all intents and purposes, superseded by the order of
    R.S.J. Van Melle, who has firmly taken direct responsibility for the access
    arrangements. The questionable part of the judgment no longer has any currency.
    On this basis, I am unable to discern any real merit in the applicants second
    legal argument that the judgment as it relates to her access to her children is
    improper.

[28]

It
    is clear to me, from the applicants submissions, that the thrust of her appeal
    is not about the legal issues she raises. Her real issue is about the
    respondents alleged sexual abuse of the children, and the failure of Dr. Goldstein
    and the assessment facility to substantiate her theory. The trial judge relied
    on Dr. Goldstein to a significant extent in reaching his conclusions.

[29]

In
    her affidavit, the applicant states:

The children had displayed highly sexualized behaviour.  The
    assessor admitted several times during trial that the children could have been
    sexually abused, amongst several names he mentioned, he admitted Mr. [F.] could
    have sexually abused the children.

She draws this conclusion from the following exchange
    in her cross-examination of Dr. Goldstein, in particular:

A.

Correct, except that
    the assumption that I have about the delusions is not just about the husband. 
    It is also the delusion the children had been victims to terrible physical
    [abuse], sexual abuse, physically.

Q.

But, Sir, its possible that
    the children were victims of sexual abuse by the father?

A.

Youve established
    that a long time ago and that  Ill hold that anything is possible.

[30]

I
    do not read this as Dr. Goldsteins admission of anything other than the mere
    possibility that the respondent abused the children.  Dr. Goldstein, however,
    in the immediately preceding answer, clearly signalled his own view, when he
    referred to the applicants delusions.

[31]

For
    the applicant to succeed on this ground of appeal, she must persuade this court
    that the trial judge made palpable and overriding errors of fact,
    misapprehended the evidence or was clearly wrong. This is a very high burden
    that the applicant is not likely to meet.

[32]

I
    am unable to conclude that the appeal has any real merit.


ii.

The Best Interests of the Children

[33]

The
    courts overriding concern in custody and access disputes is for the best
    interests of the children. I note that the
Childrens Law Reform Act
, R.S.O.
    1990 c. C12, provides, in s. 19(a), that it is intended:  to ensure that
    applications to the courts in respect of custody of, incidents of custody of,
    access to and guardianship for children will be determined on the basis of the
    best interests of the children The
Divorce Act
, R.S.C. 1985 c. 3,
    likewise provides in s. 16(8): [T]he court
shall take
into consideration only the best interests
    of the child

[34]

The
    best interests of very young children are usually best served by stable custody
    and access arrangements, and the formation of strong relationships with both
    parents. The problem of uncertainty in custody and access arrangements was
    discussed in
Van de Perre v. Edwards
, at para 13, repeated here for
    convenience:

First, finality is not merely a social interest; rather, it is
    particularly important for the parties and children involved in custodial
    disputes. A child should not be unsure of his or her home for four years, as in
    this case. Finality is a significant consideration in child custody cases,
    maybe more so than in support cases, and reinforces deference to the trial
    judge's decision. Second, an appellate court may only intervene in the decision
    of a trial judge if he or she erred in law or made a material error in the
    appreciation of the facts. Custody and access decisions are inherently
    exercises in discretion. Case-by-case consideration of the unique circumstances
    of each child is the hallmark of the process. This discretion vested in the
    trial judge enables a balanced evaluation of the best interests of the child
    and permits courts to respond to the spectrum of factors which can both
    positively and negatively affect a child.

Bastarache J. cited in support
Hickey v. Hickey
,
    [1999] 2 S.C.R. 518, at paras. 10 and 12, and
Gordon v. Goertz
, [1996]
    2 S.C.R. 27.

[35]

Like
    my judicial colleagues before me, I have grave concerns about the applicants
    refusal to make arrangements for access to her children. She explains her
    reasons for doing so. First, she asserts that she would be seen as submitting
    to the trial judges access order, the legitimacy of which she utterly
    disputes. I do not find this reason compelling since the access conditions are
    now totally in the control of R.S.J. Van Melle.

[36]

Second,
    she is afraid that the access visits would become an engine by which the
    respondent could amass adverse evidence about her parenting abilities. That too
    is something that can be addressed by R.S.J. Van Melle.

[37]

Third,
    she believes that the best interests of her children required her to dedicate
    all of her attention to the success of this appeal, leaving none for access
    visits. This appeal, in my view, should not continue to be an obstacle in the
    way of normal access visits by the applicant. There is no reason to expect that
    she would change her behaviour until the appeal is resolved.

[38]

In
    this case there has been a two-year delay in settling the custody and access
    arrangements for two young children, who are now 5 and 7 years old and who have
    not seen their mother during that time. The delay will only continue if leave
    is granted. If the panel sets aside the order of Doherty J.A., the appeal will
    still be further off. Even if the appeal is allowed, the appeal panel would not
    likely alter what will by then be longstanding arrangements without more
    evidence, and would be inclined to return the issue to the Superior Court for
    new evidence.

[39]

In
    short, from every angle, the applicants best approach is to go back to R.S.J.
    Van Melle and work out access arrangements. She would also be free to bring an
    application to change. There is no point in permitting this appeal to continue
    and I refuse to do so.

F.

Conclusions

[40]

For
    these reasons, the applicants motion for an extension of time to pursue a
    motion before a panel of this court to set aside the order of Doherty J.A. made
    on March 14, 2014 is dismissed. The respondents cross-motion for an order that
    the applicant get leave of the court before pursuing any further proceedings is
    dismissed. The applicant is free to pursue access arrangements pursuant to the
    orders of R.S.J. Van Melle.

P.
    Lauwers J.A.


