Court Cases & Orders

Appeal Court Overturns “Do-Over” Directive to Trial Judge

Written by Russell Alexander / (905) 655-6335

A three-member panel of the Ontario Court of Appeal had a chance very recently to consider whether it was appropriate for another Appeal Judge to order a custody matter to be sent back to the original Trial Judge so that any “errors or inconsistencies” in the initial judgment could be remedied, and to allow the Trial judge to go back and rule on anything that was not completely dealt with in the first place – in other words, to give the Trial Judge a “second kick at the can”.

The family law proceedings involved custody, access and relocation issues between two parents of a three-year-old child. At trial, the mother had been awarded custody, and was allowed to move with the child from Ontario to England.

The father’s appeal was heard by a single Appeal Judge, who effectively affirmed the Trial Judge’s ruling but – in an unusual step – then remitted the matter back “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 [Trial] judge desires in her reasons for decision or in the order itself.” The Appeal Judge also left it open to the Trial Judge to determine whether to admit further submissions, either orally or in writing.

This unconventional procedural step gave rise to a second appeal to the Ontario Court of Appeal, to determine whether the Appeal Judge’s decision to remit the matter back essentially for a rehearing was legally appropriate.

The Ontario Court of Appeal began by emphasizing that the orders of trial judges in family law matters – including those relating to child custody – are ordinarily to be given a great deal of deference. This promotes finality in family law litigation, and respects trial judges’ manner of apprehending the evidence before them. It is therefore never the function of any subsequent appeal court to impose the decision it would have made in the circumstances, or to embark on a fresh analysis. Instead, the test on any appeal is simply whether the trial judge erred or made a material error on his or her appreciation of the facts.

With that in mind, the Ontario Court of Appeal concluded that the Appeal Judge’s decision to remit the matter back to the Trial Judge for a further hearing was incorrect.

First of all, the Appeal Judge had purported to rely on certain Family Court Rules allowing a later court to remit custody and access issues back to the original judge in some circumstances. However, under those provisions the judge is only allowed to go back and revisit those issues that were put before the court but never actually decided. In this case, the Trial Judge had actually dealt with all of the matters relating to custody and access; none had been overlooked. So the Appeal Judge’s reliance on this Rule was misguided.

Next, the Appeal Judge interpreted certain comments in the Trial Judge’s reasons as indicating that she though certain issues had been left out of her own ruling, or that she had not turned her mind to whether additional issues needed to be reheard or submissions made. (In particular, the Trial Judge had commented that a draft Order, prepared by one of the lawyers and intended to reflect the Trial Judge’s ruling, was “an improvement on my Order.”)

This, according to the Ontario Court of Appeal, was not proper ground for remitting the matter back to the Trial Judge.

Although – in the interests of justice – there may be some rare cases where a judge can modify his or her ruling or withdraw the reasons and re-hear the cases entirely, this was not one of them.

Here, the trial had been properly held, the ruling had been made, and the parties were at the point where they were settling the question of how the formal Court Order should be worded to best reflect the Trial Judge’s decision. This was not the time to re-argue the already-decided issues, re-open submissions, and potentially change the decided outcome.

The Appeal Judge simply therefore lacked the legal authority to remit the matter back to the Trial Judge, and any subsequent ruling that she made had no force and effect. Instead, the Trial Judge’s first ruling on custody and access was restored.

Chitsabesan v. Yuhendran, 2016 ONCA 105 (CanLII)

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About the author

Russell Alexander

Russell Alexander is the Founder & Senior Partner of Russell Alexander Collaborative Family Lawyers.