Appeal judge had no jurisdiction to remit custody matter to trial judge for further hearing

Powers of appellate court

Appeal judge had no jurisdiction to remit custody matter to trial judge for further hearing

Father appealed trial decision awarding custody of parties’ three-year-old child to mother, allowing mother’s application to relocate from Ontario to England and prescribing access. First appeal judge affirmed custody, relocation and access decisions but remitted final order to trial judge “to correct any errors or inconsistencies in its wording and to adjudicate on any particular matters that were not dealt with.” He held that trial judge could admit additional oral or affidavit evidence. Father’s further appeal allowed in part. This court can intervene only if judge below erred in law or made material error in appreciation of facts. Deferential approach intensified on second appeal. No basis to interfere with appeal judge’s decision upholding custody and relocation decisions. Trial judge proceeded upon proper legal framework and trial judge’s factual findings were permissible inferences from evidence. Appeal judge, however, had no jurisdiction to remit matter back to trial judge for further hearing. Process to settle order is to ensure that formal order accurately sets out intention of court as reflected in endorsement or reasons. It is not opportunity for parties to re-argue issues already decided. Appeal judge erred to extent he relied on R. 25(19)(c) of Family Law Rules (Ont.) as basis for remitting issues of custody and access back to trial judge. Rule 25(19)(c) only permits court to change order that “needs to be changed to deal with a matter that was before the court but that it did not decide.” Rule 25(19)(c) had no application since trial judge dealt with all matters relating to custody and access. Trial judge’s subsequent custody and access order was of no force or effect. Original custody and access order remained in place.
Chitsabesan v. Yuhendran (Feb. 5, 2016, Ont. C.A., R.G. Juriansz J.A., C.W. Hourigan J.A., and David Brown J.A., CA C59537) Decision at 245 A.C.W.S. (3d) 144 was reversed. 262 A.C.W.S. (3d) 13.