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Family - Pleadings. Woods v. Timko
In Woods v. Timko (Div Court, 2024) the Divisional Court considered an appeal of a "final restraining order granted against the appellant father ... on a motion for temporary relief".
Here the court considers it's interpretive authority under the CJA's Family Law Rules R2(3) ['Dealing with cases justly'], and the limitations imposed by pleadings:[43] Here, there was no request before the motion judge to make a final order. Thus, he went beyond the boundaries of the pleadings in issuing a final restraining order.
[44] Third, the mother argues that the motion judge was bound by r. 2 of the Family Law Rules:(2) The primary objective of these rules is to enable the court to deal with cases justly.
(3) Dealing with a case justly includes,
(a) ensuring that the procedure is fair to all parties;
(b) saving expense and time;
(c) dealing with the case in ways that are appropriate to its importance and complexity; and
(d) giving appropriate court resources to the case while taking account of the need to give resources to other cases. O. Reg. 114/99, r. 2 (3).
(4) The court is required to apply these rules to promote the primary objective, and parties and their lawyers are required to help the court to promote the primary objective. [45] Admittedly, r. 2 of the Family Law Rules does provide the court with broad discretion to deal with cases justly.
[46] Nevertheless, in Rabin v. 2490918 Ontario Inc., 2023 ONCA 49, at para. 24, the Ontario Court of Appeal noted that:It is well established that as a matter of natural justice and trial fairness, it is not open to a judge to dispose of a material issue in a proceeding on a basis that has not been raised or argued by the parties: Iroquois Falls Power Corporation v. Ontario Electricity Financial Corporation, 2016 ONCA 271, 398 D.L.R. (4th) 652, at para. 62, leave to appeal refused, [2016] S.C.C.A. No. 279; Labatt Brewing Company Limited v. NHL Enterprises Canada, L.P., 2011 ONCA 511, 106 O.R. (3d) 677, at para. 6; Rodaro v. Royal Bank of Canada (2002), 2002 CanLII 41834 (ON CA), 59 O.R. (3d) 74 (C.A.), at paras. 58-62. [47] There may be circumstances in which unrequested orders are appropriately made. However, in the circumstances of this case, it was an error in law for the motion judge to make a final order in the absence of any evidence or submissions on these issues and in the absence of any explanatory reasons. This is especially so when both parties, both represented by experienced counsel had stated in their materials that they were content with the restraining order already in place.
[48] The court notes the principle from the Ontario Court of Appeal in Richardson v. Richardson, 2019 ONCA 983, at para. 26, that the court does not have to accept the position of the parties where it is not in the best interests of the children: see also Marshall v. Snow, 2022 ONSC 1687, at para. 101, and W.A.C. v. C.V.F., 2022 ONSC 2539, at para. 321. However, in making orders dealing with the children not asked for by the parties, the court should give the parties an opportunity to provide submissions.
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