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CUSTODY AND ACCESS - Courts - Pleadings

Friday, August 02, 2019 @ 6:28 AM  

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Appeal by the father from two separate rulings in a family law matter. The parties were the parents of a child, age ten, who had resided primarily with the mother since birth. The father initially questioned paternity, and thereafter, exercised infrequent access. In 2015, the mother commenced an application seeking various heads of relief. The ensuing years involved extensive litigation and procedural disputes. In 2018, the father applied under Rule 14 of the Ontario Rules of Civil Procedure for recusal of Justice Sloan, who had made several endorsements and orders in the proceeding. A case management judge dismissed the application on a without prejudice basis, finding that Judge Sloan was not scheduled to preside over further matters in the parties' proceeding. The father appealed. The mother sought to quash the appeal on the basis that leave to appeal was required to appeal an interlocutory order. In addition, the father appealed the refusal of leave to amend his Answer and Claim to seek primary residence, or alternatively, shared custody, or in the further alternative, access as agreed upon by the parties.

HELD: Appeal dismissed. Dismissal of a civil recusal application generally constituted a final order. However, the rules and statutes governing family law litigation served as a complete procedural code. In the family law context, the appropriate forum for seeking recusal was a motion pursuant to the Family Law Rules. The father's Rule 14 application was the incorrect procedural choice. The substantive effect of the dismissal of the application on a without prejudice basis was clearly interlocutory in nature, as it did not involve the final determination of any legal right and contemplated renewal in the event Judge Sloan was assigned to hear a matter. The panel nonetheless designated itself as a panel of the Divisional Court, granted leave, and dismissed the appeal on the basis that refusal of the recusal request as premature was correct and within the judge's case management purview. In addition, the father's appeal from the refusal of leave to amend was superseded by a subsequent order granting the mother sole custody, reflecting the father's change in position in contesting access rather than custody.

Beaver v. Hill, [2019] O.J. No. 3256, Ontario Court of Appeal, D.M. Brown, L.B. Roberts and B. Miller JJ.A., June 21, 2019. Digest No. TLD-July292019012