



COURT OF APPEAL FOR ONTARIO

CITATION: Chitsabesan v. Yuhendran, 2016 ONCA 105

DATE: 20160205

DOCKET: C59537

Juriansz, Hourigan and Brown JJ.A.

BETWEEN

Janani Nicola Chitsabesan

Applicant (Respondent)

and

Ajanthan Yuhendran

Respondent (Appellant)

Steven M. Bookman, Gillian H. Bookman and Jasmine
    Jadubir, for the appellant

Michael G. Weissenborn, for the respondent

Heard: January 7, 2016

On appeal from the order of Justice Craig Perkins of the Superior
    Court of Justice, dated September 18, 2014, with reasons reported at 2014 ONSC
    5395.

By the Court:

Overview

[1]

This is the appellant fathers
    second appeal in this family law case. He first appealed to the Superior Court
    from the judgment made after trial in the Ontario Court of Justice that awarded
    custody of a three year old child to the respondent mother, allowed the
    application of the mother to relocate from Ontario to England, and prescribed
    access.

[2]

The first appeal judge affirmed
    the trial judges decision on custody, relocation and access but remitted the
    final order to the trial judge to correct any errors or inconsistencies in its
    wording and to adjudicate on any particular matters that were not dealt with as
    completely as the judge desires in her reasons for decision or in the order
    itself. He added The trial judge may determine whether to admit oral evidence
    or affidavit evidence on these matters and whether to receive oral submissions
    or only written submissions.

Standard of Review

[3]

At the outset it is important to
    note the narrow scope of appellate review. A high level of deference ordinarily
    due to a trial judge in family law matters intensifies on a second appeal. It
    is useful to keep in mind what the Supreme Court of Canada said in
Hickey
    v. Hickey
, [1999] 2 S.C.R. 518, at para. 12:

There are strong reasons for the significant deference that
    must be given to trial judges in relation to support orders. This standard of
    appellate review recognizes that the discretion involved in making a support
    order is best exercised by the judge who has heard the parties directly. It
    avoids giving parties an incentive to appeal judgments and incur added expenses
    in the hope that the appeal court will have a different appreciation of the
    relevant factors and evidence. This approach promotes finality in family law
    litigation and recognizes the importance of the appreciation of the facts by
    the trial judge. Though an appeal court must intervene when there is a material
    error, a serious misapprehension of the evidence, or an error in law, it is not
    entitled to overturn a support order simply because it would have made a different
    decision or balanced the factors differently.

[4]

The Supreme Court said these
    remarks were equally applicable to orders concerning child custody:
Van
    de Perre v. Edwards
, 2001 SCC 60, [2001] 2
    S.C.R. 1014, at para. 11. In
Van de Perre
, the Supreme Court stressed once again that 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 (para.
    13). The court also remarked that custody and access decisions are inherently
    exercises in discretion, and emphasized that that discretion is vested in the
    trial judge.

[5]

In short, the Supreme Court has
    made clear that it is not the function of an appellate court to impose the
    decision it would have made itself by engaging in a fresh analysis or by
    balancing the factors differently. This court can intervene in the decision
    below only if the judge erred in law or made a material error in the
    appreciation of the facts. This deferential approach is intensified on a second
    appeal such as in a case like this one.

First Issue: The Decision on Custody and Access

[6]

The appellant recognizes that the
    trial judge set out the correct legal framework but submits she made findings
    of fact in the complete absence of evidence, misapprehended evidence and
    speculated about matters not in the evidence. The appellant also submits the
    trial judge failed to give the maximum contact principle sufficient weight by
    allowing the respondent to relocate to England with the child.

[7]

The appeal judge properly reviewed
    the trial judges decision and reasons. The only questions before him were
    whether there was an error in law or a palpable and overriding error of fact
    that affected the outcome. As stated, the trial judge proceeded upon the proper
    legal framework and in our view the factual findings about which the appellant
    complains were permissible inferences from the evidence. It was for the trial
    judge to determine how the maximum contact principle would be weighed in the
    circumstances of the case. There is no basis to interfere with the appeal
    judges upholding the trial judges decisions about custody and relocation.

Second Issue: The Jurisdiction of the Appeal Judge to Remit
    the Matter to the Trial Judge

[8]

However, having upheld the trial
    judge, the appeal judge remitted the matter back to the trial judge for a
    further hearing. With respect, the appeal judge had no jurisdiction to do so.

[9]

Following the release of the trial
    reasons, the parties were unable to agree upon the form and content of the
    final order. As described by the appeal judge, at para. 7 of his reasons:

The final order resulting from the November 13, 2013 decision
    was signed on March 5, 2014 by the trial judge herself, after receiving drafts
    from both parties. In an endorsement of March 6, 2014, she said,

2. I have signed the Appendix A Order as filed by the
    applicant as it most closely resembles my decision as written.

3. I do agree, however, with the respondent that the draft
    order provided by his counsel is an improvement of my order and several items
    may have been easily reached by agreement. Having not been agreed upon, I
    cannot sign that version.

[10]

Based on the trial judges characterization
    of the appellants form of draft order as an improvement of my order, the
    appeal judge concluded that the trial judge had erred in failing to determine
    whether any issue needs to be reheard, or whether supplementary submissions are
    needed to deal with the proposed corrections, alterations, or additional terms:
    para. 28. The appeal judge also observed that a judge who is not
functus
    officio
can modify her decision, and r. 25(19)(c)
    of the
Family Law Rules
authorizes
    a judge to change, on motion, an order that needs to be changed to deal with a
    matter that was before the court but that it did not decide. This led the
    appeal judge to remit to the trial judge her order of November 13, 2013 to
    correct any errors or inconsistencies in its wording and to adjudicate on any
    particular matters that were not dealt with as completely as the judge desires
    in her reasons for decision or in the order itself.

[11]

With respect, the appeal judge
    erred in remitting the matter to the trial judge, for two reasons. First, the
    process to settle an order has a narrow purpose: to ensure that the formal
    order accurately sets out the intention of the court as reflected in the
    endorsement or reasons for decision: Paul Perell and John Morden,
The
    Law of Civil Procedure in Ontario,
2nd ed.
    (Toronto: LexisNexis, 2014), at para. 11.29. The process of settling an order
    is not an opportunity for either party to re-argue issues already decided in an
    effort to change the result set out in the judges reasons. Although a judge is
    not
functus officio
where the
    order has not been signed and entered and therefore retains jurisdiction over a
    matter, the instances in which it might be in the interests of justice to
    withdraw reasons of the court and rehear the case on the merits will be rare:
Pastore v. Aviva Canada Inc.
,
    2012 ONCA 887,
300 O.A.C. 355,
at para.
    9.

[12]

This is not one of those rare
    cases. The trial judge gave lengthy and comprehensive reasons to explain how
    she reached her decision on the issues of custody and access. As well, her
    reasons set out, in detail, the content of the final order on those issues.
    After reviewing the draft final orders submitted by the parties, the trial
    judge concluded that she would sign the draft submitted by the applicant as it
    most closely resembles my decision as written. In proceeding in that fashion,
    the trial judge did not commit any error. On the contrary, she properly
    followed the process under r. 25 of the
Family Law Rules
to settle her order.

[13]

Second, to the extent the appeal
    judge relied on r. 25(19)(c) as the basis for remitting the issues of custody
    and access back to the trial judge, he erred in so doing. Rule 25(19)(c) only
    permits a court to change an order that needs to be changed to deal with a
    matter that was before the court but that it did not decide In the present
    case, the appeal judge found that the trial judge had properly evaluated the
    law, made findings of fact and conclusions reasonably supported by the
    evidence, and came up with the best available overall conclusion on the issues
    of custody and access: para. 23. Because the trial judge had dealt with all the
    matters relating to custody and access placed before her for adjudication, r.
    25(19)(c) had no application in the circumstances of this case.

[14]

The respondent submits that
    paragraph 13 of the trial judges November 13, 2013 order entitled the appeal
    judge to remit the matter back because it stated that [a]ny necessary
    variations or enforcement court proceedings shall be in this court. That
    provision only applies to variation proceedings subsequent to the making of the
    final order, not to the type of rehearing of the original final order
    contemplated by the appeal judges remittance of the matter to the trial judge.

[15]

In sum, the appeal judge erred in
    concluding that, in the circumstances, he had the jurisdiction to remit to the
    trial judge her order of November 13, 2013. From that it follows that the trial
    judges subsequent custody and access order dated May 6, 2015 is of no force or
    effect, and her November 13, 2013 order remains in place.

Disposition

[16]

For these reasons, the appeal is
    allowed in part, the order of May 6, 2015 is set aside, and the order of
    November 13, 2013 is restored.

[17]

The parties agreed that the
    successful party on appeal should be awarded $10,000 in costs. However, there has
    been mixed success on this appeal. Although the appellant succeeded on the
    issue of the jurisdiction of the appeal judge to remit the issues of custody
    and access back to the trial judge, the appellant did not succeed in altering
    the basic terms of custody or access originally set by the trial judge. Accordingly,
    there will be no order as to the costs of this appeal.

Released: February 5, 2016 (RGJ)

R.G.
    Juriansz J.A.

C.W.
    Hourigan J.A.

David
    Brown J.A.


