D.D. v. H.D., 2015 ONCA 409

• Judge: Cronk, Gillese and D. Brown, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: March 12, 2015
• Jurisdiction: Ontario
• Citations: 2015 ONCA 409;(2015), 335 O.A.C. 376 (CA)

D.D. v. H.D. (2015), 335 O.A.C. 376 (CA)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. JN.017

D.D. (applicant/respondent) v. H.D. (respondent/appellant)

(C57586; C57587; 2015 ONCA 409)

Indexed As: D.D. v. H.D.

Ontario Court of Appeal

Cronk, Gillese and D. Brown, JJ.A.

June 8, 2015.

Summary:

Under the terms of the parties' consent order, the mother (H.D.) had sole custody of the two children of the marriage; the father (D.D.) had specified access; and the father was to pay child support and spousal support. The father was charged with assault and forcible confinement of the mother. Child and Family Services intervened and supported the mother's move, with the children, to Alberta. The father moved to vary the consent order, gain custody of the children, and terminate his support obligations. The mother's pleadings were struck because of her failing to comply with the ex parte orders requiring that the children be returned to Ontario.

The Ontario Superior Court, by orders dated July 31 and August 2, 2013: (1) gave custody of the children to the father; (2) gave supervised access to the mother, subject to her providing the father with a psychiatric report that he found acceptable; (3) terminated the father's support obligations; and (4) ordered the mother to pay child support based on imputed income. The Court decided the matters in issue solely on evidence adduced by the father. The mother appealed the orders. The children were now subject to child protection proceedings.

The Ontario Court of Appeal allowed the appeal, set aside the orders under appeal, and ordered that the motion to vary be heard before a different judge of the Superior Court.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Family Law - Topic 1881

Custody and access - Considerations in awarding custody - Welfare or best interests of child paramount - The Ontario Court of Appeal stated that "[i]t is trite law that custody is to be decided based only on the best interests of the children. In King v. Mongrain, 2009 ONCA 486 ... this court emphasized that the utmost caution must be used before striking a party's pleading when custody and access are in issue. It explained that a full evidentiary record, including the participation of both parents, is generally required for the court to make a custody decision in the best interests of the children. The present appeal calls out for a repetition of these principles." - See paragraph 1.

Family Law - Topic 1881

Custody and access - Considerations in awarding custody - Welfare or best interests of child paramount - [See second Family Law - Topic 1912 ].

Family Law - Topic 1912

Custody and access - Appeals - Grounds - Under the terms of the parties' consent order, the mother (H.D.) had sole custody of the children; the father (D.D.) had specified access - D.D. moved to vary the consent order and gain custody of the children - The mother (H.D.)'s pleadings were struck because of her contempt for failing to comply with the orders requiring that the children be returned to Ontario - Custody was ordered in favour of the father (D.D.), under the Divorce Act - The Ontario Court of Appeal held that the motion judge made clear errors of law which dictated that the custody order be set aside - The motion judge was required under the Divorce Act to consider the children's conditions, means needs and other circumstances, but failed to do so - No consideration was given to D.D.'s ability to parent, including his admitted guilty pleas to criminal harassment in the domestic context - Also, the motion judge made no reference to the following: the history of domestic violence and intimidation; the children had lived with their mother throughout their lives and she had been their primary caregiver; since the second child's birth, the father had voluntarily spent very limited time with the children; and the concerns expressed by the Ontario protective authorities about D.D.'s domestic violence - See paragraphs 82 to 86.

Family Law - Topic 1912

Custody and access - Appeals - Grounds - The mother (H.D.)'s pleadings were struck because of her contempt for failing to comply with the orders requiring that the children be returned to Ontario - The father (D.D.) was given custody of the children, under the Divorce Act - The Ontario Court of Appeal, in setting aside the custody order, made the following points - "First, the courts are to consider only the children's best interests when making custody decisions. A court cannot award custody to one parent to punish the other for non-compliance with court orders. Moreover, while the motion judge's frustration at the failure of the police and the CAS [Children's Aid Society] to implement her orders and return the children to Ontario is understandable, those matters were irrelevant to the issue of custody. Second, this was not a 'kidnapping' case. There was no term in the Consent Order requiring that the children remain resident in Ontario. Moreover, H.D. moved with the children with the CAS's knowledge and approval. Further, prior to the move, D.D. had not exercised access - or even sought to exercise access - for a number of months and he had told both the CAS and H.D. that he did not intend to have access visits with the children, given that they were to be supervised. In the result, the order as to custody cannot stand." - See paragraphs 87 to 89.

Family Law - Topic 1958

Custody and access - Variation of custody and access rights - Evidence to support application - Under the terms of the parties' consent order, the mother (H.D.) had sole custody of the children; the father (D.D.) had specified access - D.D. moved to vary the consent order and gain custody of the children - H.D.'s pleadings were struck because of her contempt for failing to comply with the orders requiring that the children be returned to Ontario - No one represented the children - The matters in issue were decided solely on evidence adduced by D.D. - Custody was ordered in favour D.D. - The Ontario Court of Appeal held that the motion judge made clear errors of law, and set aside the custody order - "The motion judge in the present case decided the custody issue on an inadequate evidentiary basis: the evidence was solely that adduced by the respondent. And, much of that evidence was about the tortured procedural history of this case, the children's aid societies' failures, and the police's failure to enforce the warrant for H.D.'s arrest and return the children to Ontario. Furthermore, it will be recalled, at the hearing H.D.'s counsel was not allowed to even make submissions on whether D.D. should have custody, let alone cross-examine D.D. or lead evidence. ... [T]he one-sided presentation of evidence did not provide an adequate basis on which the motion judge, acting in accordance with the relevant statutory provisions, could determine that a final custody order in the father's favour was in the children's best interests." - See paragraphs 72 to 81.

Family Law - Topic 2005

Custody and access - Access - Access orders - Jurisdiction of court respecting - In the order under appeal, the appellant was given supervised access to the children only if she "provides a psychiatric report ... satisfactory to [the respondent]" - The appellant submitted that the determination of access was a judicial function and was improperly delegated - The Ontario Court of Appeal set aside the order - The order reflected a clear error in law - "[T]he court cannot delegate to a third party its power to determine access. ... First, it is unclear what the psychiatric report would have to demonstrate in order for the appellant to have access to the children. Second, the appellant's mental health is not the only consideration as to whether she should have access. If access is in the children's best interests, should it be denied absent the report? And if access is not in their best interests, should a report entitle the appellant to have access? Third, there is no statutory authority to delegate decision-making as to access to a third party. Fourth, such a delegation improperly fetters the appellant's access to the court on the question of access." - See paragraphs 90 to 94.

Family Law - Topic 2122

Custody and access - Jurisdiction - Where custody or access order made in another jurisdiction or under Divorce Act - The custody order called into question on this appeal was made under the Divorce Act - The Ontario Court of Appeal considered whether it had jurisdiction to hear the appeal, given the fresh evidence that the children were now subject to provincial child protection proceedings - "[T]he question arises, in light of the provincial protection proceedings, can the custody aspects of this appeal proceed or are they stayed until the child protection proceedings are complete? Section 57.2 of the CFSA [Child and Family Services Act] provides for a statutory stay of custody proceedings under the CLRA [Children's Law Reform Act], another provincial statute. ... Given the doctrine of federal paramountcy, it is not readily apparent that the CFSA, a provincial law, could effect such a stay. There is virtually no jurisprudence on the jurisdictional question ... . The right to appeal the custody order, in the face of intervening protection proceedings, is different from the commencement of a custody application in the face of ongoing child protection proceedings. The jurisdictional question raised on this appeal is significant and has the potential to affect many other parties and proceedings. It was not squarely raised nor fully argued on this appeal. ... Consequently, I decline to decide this matter and will assume that the court has jurisdiction to decide the issue of custody." - See paragraphs 57 to 65.

Family Law - Topic 2139

Custody and access - Evidence - General - [See Family Law - Topic 1958 ].

Family Law - Topic 2199

Custody and access - Practice - Pleadings (incl. amendment or striking of) - [See first Family Law - Topic 1881 ].

Family Law - Topic 4133.1

Divorce - Practice - Pleadings - Custody and access - [See first Family Law - Topic 1881 ].

Practice - Topic 2237

Pleadings - Striking out pleadings - Grounds - Failure to obey court order - [See first Family Law - Topic 1881 ].

Cases Noticed:

King v. Mongrain (2009), 252 O.A.C. 54; 66 R.F.L.(6th) 267; 2009 ONCA 486, appld. [paras. 1, 73 et seq.].

Catholic Children's Aid Society of Metropolitan Toronto, Re (1972), 26 D.L.R.(3d) 266 (Ont. H.C.), refd to. [para. 61].

Children's Aid Society of St. Thomas & Elgin (County) v. Z.(C.) (2003), 43 R.F.L.(5th) 264 (Ont. C.J.), refd to. [para. 62].

Haunert-Faga v. Faga (2005), 203 O.A.C. 388 (C.A.), refd to. [para. 81].

C.A.M. v. D.M. (2003), 176 O.A.C. 201; 67 O.R.(3d) 181 (C.A.), appld. [para. 92].

Drygala v. Pauli (2002), 164 O.A.C. 241; 61 O.R.(3d) 711 (C.A.), appld. [para. 101].

Statutes Noticed:

Child and Family Services Act, R.S.O. 1990, c. C-11, sect. 57.1(6) [para. 67]; sect. 57.2 [para. 58].

Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3, sect. 16(8) [para. 82]; sect. 17(4) [para. 97]; sect. 17(4.1) [para. 102]; sect. 17(5) [para. 82]; sect. 21(5) [para. 103].

Counsel:

Charlotte Murray and Simon Wozny, for the appellant;

Angelo P. Fazari and A. Iler, for the respondent.

This appeal was heard on March 12, 2015, before Cronk, Gillese and D. Brown, JJ.A., of the Ontario Court of Appeal. In reasons written by Gillese, J.A., the Court delivered the following judgment, dated June 8, 2015.