K.W.R.Applicant — v. —, 2016 ONCJ 208

COURT FILE No.: 39/15

(0001) DATE: 2016-04-14 CITATION: K. W. R. v. M.L.R. , 2016 ONCJ 208 ONTARIO COURT OF JUSTICE BETWEEN: K.W.R.Applicant — AND — M.L.R. Respondent Before Justice Barry M. Tobin Heard on March 30, 2016 Ruling on Motion released on April 14, 2016 J.J.

Avery .......................................................................................... counsel for the applicant Tanya McNevin ............................................................................. counsel for the respondent TOBIN, J.: RULING ON MOTION The Motion [ 1 ] Relying upon the Family Law Rules , subrule 14(4.2), the applicant brought a motion to change a final order. [ 2 ] The respondent moves for an order dismissing this motion to change a final order on the basis the court is functus officio . Facts [ 3 ] On August 11, 2015, Justice L.

Ross made an order based on Minutes of Settlement filed by the parties (the “Order”). [ 4 ] The Order provided that the parties would share joint custody of their daughter and that her primary residence would be with the applicant. The Order also dealt with the times the child would reside with the respondent, incidents of parenting and child support. [ 5 ] The Order was signed by the judge on September 22, 2015. [ 6 ] Subsequent to the Order being signed by the judge, the applicant moved to change it. He did so by Form 14: Notice of Motion.

Because of the issue raised in this case, it is necessary to set out exactly what the applicant requested in his Notice of Motion. The orders requested were as follows: “1. Pursuant to rule 14(4.2) of the Family Law Rules , that this motion be heard as a matter of urgency regarding safety and security of a child, and in the interest of justice; 2. Leave to bring this motion if necessary; 3. Abridging of time to serve and file this motion if necessary; 4.

That paragraph 1 of the Order of Justice Ross dated August 11, 2015 be deleted and replaced with: ‘K.W.R. shall have custody of the child S.R. born […], 2004’; 5. That paragraphs 3: 1-7 shall be deleted and replaced with ‘pending further order of the court, contact between the child and the mother shall take place twice per month from Friday at 4:00 pm until Sunday at 7:00 pm in the County of Essex; all pick up and drop off shall be at the father’s residence. The child shall have voice contact with the father by telephone using her own telephone at least once per day during the contact periods with the mother.

The mother shall provide details by text of where she and the child are staying

during these contact periods. ” ... [ 7 ] The applicant’s motion was brought before Justice Ross in chambers on October 6, 2015 with the request that it be dealt with on an urgent basis, that is, before a case conference was held.

The motion was scheduled to be in open court on notice to the respondent on October 21, 2015. [ 8 ] On October 7, 2015, the applicant’s solicitor served the Notice of Motion and supporting affidavits upon the lawyer who acted for the respondent in the proceeding that resulted in the granting of the Order. [ 9 ] By Notice of Motion signed October 15, 2015, the respondent’s lawyer brought the motion that is now before the court seeking: “an Order for the dismissal of the applicant’s motion dated October 6, 2015 on the basis that the court is functus officio as the Order the applicant is seeking to vary if(sic) a Final Order.” [ 10 ] As well the respondent moved, by Notice of Contempt Motion signed October 14, 2015, for a finding that the applicant was in contempt of certain provisions of the Order. [ 11 ] The applicant’s and both of the respondent’s motions were returnable on October 21, 2015 before Justice Ross.

Neither party took out Justice Ross’ order of that day. However during submissions on the motion to dismiss, I was referred to a transcript of Proceedings at Motion before the court on October 21, 2015. [ 12 ] Justice Ross did not rule on any of the three motions that were before the court that day, though references to them were made during submissions. What the court did was have the child placed in the care and custody of the Windsor-Essex Children’s Aid Society pending further order of the court. [ 13 ] The three motions were adjourned to a later date.

They continued to be adjourned a number of times while other procedural matters were addressed. Position of the Parties [ 14 ] The respondent argues that as the Order was a final one the Family Law Rules provide that the only way to change it is by a Motion to Change under Rule 15 or by appeal. [1] Therefore, the court has no jurisdiction to change the Order under a Rule 14 Motion. To allow the process adopted by the applicant would be contrary to the doctrine of functus officio . [ 15 ] The applicant argues that a consideration of the best interests of a child supersedes any other consideration.

The initiating process relied upon by the applicant was a motion brought on the basis of urgency under subrule 14(4.2) as this was the only mechanism to ensure the child’s safety and security before the court. In any event, rule 2 should be sufficient basis to allow the motion to proceed. [ 16 ] The respondent also argues that by scheduling the motion before a case conference, Justice Ross must be taken to have approved the procedures adopted by him in seeking to change the Order. Legal Considerations [ 17 ] The Family Law Rules govern the procedure to be followed in family law cases: see F.L.R. 1(2).

The function of these rules is “to provide the machinery, the manner or means by which legal rights and duties may be enforced or recognized” [2] by the court. These rules are to be interpreted to allow efficient and expeditious justice in the context of a family law case. [3] [ 18 ] The Family Law Rules provide that cases are to be dealt with justly: see F.L.R. subrule 2(2). [ 19 ] A case is dealt with justly when the procedure is fair to all and is processed in a manner that is designed to save expense and time: see F.L.R. subrules 2(3) (

a) and (b). [ 20 ] If a party wants to ask the court to change a final order, it may only do so by a motion under rule 15. The rules relevant for the determination of this motion are as follows: Rule 8(2): Subject to subrule 25(19) (changing order – fraud, mistake, lack of notice), a party who wants to ask the court to change a final order or an agreement for support filed under

section 35 of the Family Law Act may do so only by a motion under rule 15 (if permitted to do so by that rule). Rule 15(5): Subject to subrules (17) and (18), a party who wants to ask the court to change a final order or agreement shall serve and file , (

a) a motion to change (Form 15); and (

b) a change information form (Form 15A), with all required attachments. Rule 15(5.1): If the motion includes a claim for custody of or access to a child, the documents referred to in subrule (5) shall be accompanied by the applicable documents referred to in Rule 35.1. [emphasis added] [ 21 ] Form 25 Order (General) provided for under the Family Law Rules allows the parties to indicate whether the order is a final or

temporary order. [ 22 ] An order may be signed by the judge who made it or by the clerk: see F.L.R. subrule 25(12). [ 23 ] Once an order is signed, the doctrine functus officio applies. This doctrine provides that once a court has reached its decision and the order is signed, it cannot afterwards be altered except to correct clerical errors or mistakes. [4] [ 24 ] Motions for temporary orders are provided for at rule 14 of the Family Law Rules .

The relevant provisions of Rule 14 for the purpose of this motion are: 14(4): “No notice of motion or supporting evidence may be served and no motion may be heard before a conference dealing with the substantive issues in the case has been completed.” 14(4.2): “Subrule (4) does not apply if the court is of the opinion that there is a situation of urgency or hardship or that a case conference is not required for some other reason in the interest of justice.” Application of Legal Considerations [ 25 ] Justice Ross’ Order of August 11, 2015 was a final one.

The Order, as signed, clearly indicates on page one that the Order is a “Form 25: Order (General) Final.” [ 26 ] Once signed by Justice Ross on September 22, 2015, the court became functus officio . The court no longer had jurisdiction over the case which gave rise to the Order (except on a motion under subrule 25(19)). At that point, the Order could only be changed on appeal or pursuant to a motion to change brought under rule 15. [ 27 ] The applicant chose to initiate a proceeding to change the Order by moving under subrule 14(4.2).

This is not what the Family Law Rules provide. [ 28 ] Rules 8(2), 15(5) and (5.1) are specific and mandatory with respect to how a motion to change a final order is to be brought. It is by way of a motion to change under rule 15. [ 29 ] The applicant did not do so when he brought the rule 14(4.2) motion. He could have brought a rule 14(4.2) motion within a rule 15 motion to change. Rule 14 would then apply to any request for a temporary order brought within the motion to change.

This would include the ability to request leave to bring a motion for a temporary order before the completion of a conference: see subrules 17(1) and (3). [ 30 ] There was no risk to the security and safety of the child by requiring the applicant to follow the Family Law Rules and bring a motion to change under rule 15. [ 31 ] The applicant argued that by allowing the rule 14(4.2) motion to be scheduled before the court, Justice Ross approved the process adopted by him. With respect, I disagree. The motion was scheduled to a specific date to be addressed. This does not constitute approval of the process.

Rather, the court allowed the applicant the opportunity to make argument on the issue. It also allowed the respondent the opportunity to address the motion. By doing so, the court dealt with the case justly by ensuring a fair procedure, one that allowed both parties to be heard. On October 21, 2015, when the rule 14(4.2) motion and this motion to dismiss were before the court, they were adjourned.

Justice Ross did not make a decision on these motions. [ 32 ] The applicant also argued that the respondent’s position puts form over substance and does not give effect to rule 2, requiring the court the deal with the case justly. Again, and with respect, I disagree. This is not a case where procedure trumps both substantive rights and the best interests of the child. It is a case where the relief sought was available in the manner prescribed by the rules. Dealing with a case justly requires the rules to be followed.

It is not procedurally just to allow a party to initiate a process contrary to the specific and mandatory provisions of the Family Law Rules . Following the rules requires a party to do what is expected of him or her and to know what to expect from the other party. In this way the case proceeds on a “level playing field” and procedural safeguards ensure fairness is available to all parties. Order [ 33 ] For these reasons, the order sought by the respondent is granted.

The applicant’s motion dated October 6, 2015 is dismissed. [ 34 ] If costs are sought, brief submissions (three pages double spaced), Bill of Costs and offers to settle are to be filed with the Trial Co-Ordinator by the respondent within seven days of the release of these reasons and by the applicant five days thereafter. Released: April 14, 2016 “original signed and released” Barry M. Tobin Justice