A.T.M. v. T.Y., 2013 NLCA 48

Date: 20130620 Docket: 13/21 Citation: A.T.M. v. T.Y. , 2013 NLCA 48 PUBLICATION BAN: THERE IS A PUBLICATION BAN ON THE NAME OF THE CHILD REFERRED TO HEREIN AS WELL AS THE NAME OF ANY PERSON WHO COULD IDENTIFY THE CHILD. IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN: A.T.M. APPELLANT AND: T.Y. RESPONDENT Coram: Welsh, White and Hoegg JJ.A. Court Appealed From: Supreme Court of Newfoundland and Labrador Trial Division (G) 201106G0081 Appeal Heard: June 20, 2013 Judgment Rendered: June 20, 2013 (Orally) Reasons for Oral Decision filed: July 5, 2013 Reasons for Judgment by Welsh J.A. Concurred in by White and Hoegg JJ.A. Counsel for the Appellant: No Appearance

Counsel for the Respondent: Glen W. Picco Q.C. REASONS FOR ORAL DECISION Welsh J.A.: [ 1 ] A child was born to T.Y. and A.M. on [...], 2011. The father, A.M., appeals the trial judge’s decision granting sole custody of the child to the mother. The mother returned to Newfoundland for the birth of the child and continues to reside in this Province. She has married and her spouse and his family are involved in the care of the child. The father currently resides in Manitoba. [ 2 ] The Court accepts that A.M. is of black ancestry.

He is clearly of the view that society and the courts in Newfoundland and Labrador discriminate against persons of black ancestry, and that, for that reason, he will not receive justice in this jurisdiction. There is absolutely no basis to support A.M.’s view. The trial judge, having heard lengthy evidence regarding custody of and access to the child, provided a comprehensive analysis of the law and its application in the instant case (2013 NLTD(G) 16).

A reading of the decision leads to the clear conclusion that the judge was alive to the issues related to the child’s racial background and its relevance to custody of and access to the child. His decision is consistent with the principles set out in Van de Perre v. Edwards , 2001 SCC 60 , [2001] 2 S.C.R. 1014. The judge provided detailed reasons for his determination that the best interests of the child required that T.Y. be granted sole custody and that access by A.M. should be supervised. [ 3 ] A.M.’s appeal was set to be heard on Thursday, June 20, 2013. He did not appear for the hearing.

At the appointed time, his name was also called in the Trial Division court house to ensure that he had not attended at the wrong location. The Court was satisfied that he was not in attendance in person for his appeal. In preparation for the hearing, the Court registry had corresponded with A.M. to offer the options of video or telephone conferencing should he choose not to appear in person. A.M. made no attempt to take advantage of these alternatives. [ 4 ] Further, A.M. did not file written submissions.

The Court was limited to consideration of the issues identified in his notice of appeal and, to the extent appropriate, issues raised in the multitude of email communications he has sent to the Court and which the Court provided to T.Y.’s counsel. Counsel for the mother filed a factum addressing, without the benefit of an appellant’s factum, the issues set out in the notice of appeal.

That factum was delivered to A.M. via priority post with confirmation of receipt. [ 5 ] The general tenor of A.M.’s correspondence to the Court was that he did not want to have anything to do with this Court, which he referred to as a kangaroo court, and which, as noted above, he maintained discriminated against persons of black ancestry. For this reason, A.M. sent a communication to the registry requesting that his appeal be heard by the Manitoba Court of Appeal. However, it is clear that an appeal from a decision of the Trial Division in this Province must be heard by this Court.

Section 30 of the Children’s Law Act , RSNL 1990, c. C-13, which authorizes the court to “decline to exercise its jurisdiction where it is of the opinion that it is more appropriate for jurisdiction to be exercised outside the province”, applies at the trial stage. Once a Trial Division decision is rendered, an appeal of that decision lies to the appellate court of this Province. As to jurisdiction of the Trial Division, there is clearly a valid basis for exercising jurisdiction over the matter where the mother and child have been resident in this Province since before the child’s birth.

Finally, I note, some days prior to the hearing, A.M. indicated that he did not want the Court to have any further contact with him. [ 6 ] Efforts by the registry to assist A.M. and to explain the role of the appellate court were generally unsuccessful. The role of this Court is to review the decision of the trial judge for error. That is what the Court has done in the instant case. A.M. has several misconceptions about the operation of courts in general and the appellate court in particular. He seemed to be of the incorrect view that he could simply rely on emails addressed to the Court.

He was advised of the need to make written and/or oral submissions to the Court, which is comprised of a panel of three justices. The system is designed to ensure fairness by providing both parties with the opportunity to be heard and to respond to submissions by the other side.

Further, A.M. did not accept that, if he wished to adduce fresh evidence regarding, for example, his allegations, arising after the trial judge’s decision, that the child was being abused, this would require an application supported by facts. [ 7 ] Although A.M. refused to carry forward his appeal in an appropriate manner, there are two issues raised in his correspondence to the Court on which a brief comment is apposite. A.M. complained that the mother failed to provide disclosure. Disclosure by the Crown is a procedure applicable in criminal matters.

It does not apply to matters of custody of and access to a child. In the latter situation, evidence is brought to the trial judge by means of examination and cross-examination of witnesses.

Documents may be sought by one party from another, and if there is a dispute, a decision will be made by a judge. [ 8 ] A.M. also complained in his emails to the Court that the trial judge erred by threatening to issue an order restraining him “from communicating with [T.Y.] based upon what has been a very disturbing tone and content of many text and email communications sent by [A.M.] to her …” (decision of the trial judge, at paragraph 82). The judge found some of the communications “to be very threatening, intimidating, disturbing and deeply hurtful” (decision of the trial judge, at paragraph 83).

The judge, after concluding that T.Y. had established a foundation for issuing the restraining order, decided: [84] However, in order to attempt to make the parenting order that I have set out above work, it is necessary that there be some means for communication between the parties based upon the place of living of both parents. As a result, I have decided to delay the ruling on this Application. … The judge granted leave to T.Y. to pursue the restraining order should that become necessary.

There is no basis on which to conclude that the trial judge erred. [ 9 ] At the hearing, counsel for the mother submitted that the trial judge’s decision provides a comprehensive analysis of the evidence and the applicable law, and that there is no basis on which to challenge the judge’s determinations. The Court reviewed A.M.’s notice of appeal to ascertain whether there was any merit to his allegations challenging the trial judge’s decision. In fact, it is clear that the allegations misconstrue what the trial judge wrote, take statements out of context and make unfounded claims such as involvement by

T.Y.’s spouse and the community in the Ku Klux Klan. In addition to considering A.M.’s allegations in the notice of appeal, the Courtreviewed the trial judge’s decision for error and found none. Indeed, as submitted by counsel for T.Y., the decision is comprehensive,addressing the relevant evidence, and applying the correct law. Accordingly, the appeal was dismissed. [10] Counsel for the mother requested costs of the appeal on a solicitor and own client basis. There are three types of costs: partyand party, solicitor and client, and solicitor and own client. These are described in Holloway v.

Holloway, 2001 NFCA 17, 199 Nfld. &P.E.I.R. 1: [91] From all of the foregoing authorities, I would extract, as the essence of the characteristics of the three categories of costs, thefollowing: 1. Party and party costs. These represent only a partial indemnity, calculated from a prescribed tariff designed to strike the properbalance between the burden of costs which must be borne by a successful litigant, and the risk of putting litigation beyond the reach of apotential loser. 2. Solicitor and client costs.

These represent all disbursements, charges and fees, taxable by the solicitor against his client as necessaryfor the proper presentation of the proceeding in respect of which the costs are awarded, but limited to the four corners of that proceeding. 3. Solicitor and own client costs.

These will usually be the same as solicitor and client costs, but where circumstances justify, there willbe added any further disbursements, charges or fees that may arise out of the equities as between the solicitor and the client, except suchas would result from unreasonableness on the part of the solicitor. [92] Thus, solicitor and client costs can, and usually will, amount to full indemnity for all expenses incurred by a party in respect of aproceeding.

It is only if there are other and special instructions or arrangements between a solicitor and client, that involvedisbursements, charges or fees over and above those strictly necessary for the proper presentation of the proceeding, that solicitor andclient costs would not represent full indemnification. … Wells C.J.N. concluded that costs on a solicitor and own client basis should be awarded only in exceptional circumstances. [11] Regarding situations in which an award of solicitor and client costs may be appropriate, McLachlin J., for the majority in Youngv.

Young, (SCC), [1993] 4 S.C.R. 3, wrote, at page 134: … Solicitor-client costs are generally awarded only where there has been reprehensible, scandalous or outrageous conduct on the part ofone of the parties. … [12] As to party and party costs, as of July 1, 2011, rule 55.04 of the Rules of the Supreme Court, 1986 incorporates a scale of costshaving five columns. Ordinarily, costs will be governed by column 3. Subsection (4) of that rule enumerates factors which the courtmay consider in determining an appropriate award of costs.

The factors include the importance, complexity, difficulty or novelty of theissues, failure by a party to make admissions where proper to do so, and “the manner in which the proceeding was conducted, includingany conduct that tended to shorten or unnecessarily lengthen the duration of the proceeding”. [13] Applying the above principles to the instant appeal, this is not an exceptional case that would warrant an order for costs on asolicitor and own client basis. However, an award of solicitor and client costs is warranted.

A.M. failed to carry forward his appeal inaccordance with the rules and to make either oral or written submissions. The registry made clear to A.M. that the civil appeal rulesapplied, and provided assistance considered to be appropriate in the case of a self-represented litigant. A.M.’s failure to proceedappropriately increased significantly the difficulty for T.Y. to respond and resulted in unnecessary costs being incurred by her. Thesefactors would, in the circumstances, have resulted in an award of party and party costs under column 5. [14] However, other factors also require consideration.

A.M. made completely unfounded and malicious blanket allegations ofdiscrimination on the part of the courts. In addition, without pointing to any reasonable factual foundation, he made further allegations,after the Trial Division decision, that the child was being abused. A.M. was advised that, if he had a basis for his allegations, he shouldcontact the Department of Child, Youth and Family Services, and that this was not a matter properly before this Court.

A.M. did notaccept this advice and has continued to maintain that this issue must be addressed by this Court immediately along with an order givinghim immediate sole custody of the child. These allegations of discrimination and child abuse were made by means of communications tothe registry while A.M. refused to participate in the hearing of the appeal. A further consideration is the disrespectful manner in whichA.M. has dealt with T.Y. and this Court, particularly by means of communications replete with vitriol. In

summary, A.M.’s conductcould only be termed reprehensible, scandalous and outrageous. An award against A.M. of costs on a solicitor and client basis is,accordingly, warranted. [15] In

summary, as discussed above, the Court dismissed A.M.’s appeal. A.M. is ordered to pay T.Y.’s costs of the appeal on asolicitor and client basis. ___________________________________ B. G. Welsh J.A. I Concur: _______________________________ C. W. White J.A.

I Concur: _______________________________ L. R. Hoegg J.A.