COURT OF APPEAL FOR ONTARIO
GOUDGE, SIMMONS AND GILLESE JJ.A.
B E T W E E N:
SHIMON SEGAL
Avra Rosen for the appellant
Respondent
- and -
IRENE SEGAL
Sheila Holmes for the respondent
Appellant
Heard: June 21, 2002
Released Orally: June 21, 2002
On appeal from the judgment of Justice Joseph C.M. James dated June 7, 2001.
[1] The standard of review to be applied on appeals of matters of custody and access was clearly articulated by the Supreme Court of Canada in Van de Perre v. Edwards (2001), 2001 SCC 60, 19 R.F.L. 5th 396 (S.C.C.). An appellate court is not to overturn a custody order in the absence of a material error, a serious misapprehension of the evidence or an error of law. Omissions in reasons for judgment amount to material error if they give rise to the reasoned belief that the trial judge must have forgotten, ignored or misconstrued the evidence in a way that affects his conclusions.
[2] In our view, in this case, the trial judge made a number of material errors in coming to his decisions in respect of custody and access.
[3] The first error is that in ruling that he would consider no evidence that predated the November 15, 1999 consent order, he precluded a consideration of evidence relevant to the best interests of the children including the court ordered report of Dr. Morris which was the foundation of that November 15, 1999 order.
[4] The second error relates to the joint custody order. The fundamental principle upon which all custody orders must rest is the best interest of the children. In our view, the trial judge erred because he failed to faithfully follow this principle in making the joint custody order he did. We say so for the following reasons.
[5] First, having found that a change in custody would traumatize the children, the trial judge went on to do just that – change custody.
[6] Second, in justifying his order of joint custody, the trial judge appears to have focussed on the interests of the parents rather than the best interests of the children.
[7] Third, in the circumstances of this case, where the parents find communication between themselves almost impossible and no mechanisms are in place to cope with this, the trial judge offered no explanation whatsoever of how the order he made serves the best interests of the children.
[8] Fourth, although he ordered joint custody, the trial judge left in place an order which arguably provides the mother with final decision making power on “any significant matter relating to the children’s health, education or religion”. He did so without explanation or elaboration. This lack of clarity and the conflict to which it will inevitably and undoubtedly lead is, in our view, contrary to the best interests of the children.
[9] The third error relates to the access order. The trial judge made no reference in his reasons to the evidence given by Ms. Kussin, the court appointed therapist for the children. She gave evidence that the children regressed in their behaviour and displayed evidence of retraumatization when the parties attempted to implement the supervised access regime set out in the November 15, 1999 order. It was her recommendation that the children should not have access to their father for a period of at least two years in order to permit a period of emotional stability and security. The trial judge said nothing about this evidence and ordered that the father have unsupervised access to the children on alternating Sundays following four three‑hour supervised access periods.
[10] In light of the fact that the therapist’s evidence addressed the underlying question of the best interests of the children, without attributing fault to either parent, if the trial judge was going to reject her evidence and the resulting recommendation, some explanation of the trial judge’s reasons for doing so should have been given. Indeed, it is not clear what, if any, evidence the trial judge could have relied on in rejecting the therapist’s evidence and in making an order for unsupervised access.
[11] Given these errors, the appeal must succeed. Paragraphs 1, 2 and 3 of the order below are set aside. We would not give effect to the appellant’s request to dismiss the application on the basis that the trial judge erred in finding that there had been a material change in circumstances. We have not found it necessary to determine that issue. Moreover, it was as a result of the appellant’s request that evidence predating the November 15, 1999 order was erroneously excluded. There must be a new trial on custody and access including the issue of material change.
[12] In the interim, pending trial, the order of November 15, 1999, remains in effect. Paragraph 9 of that order is, in our view, effective to permit either party to apply to the court below for interlocutory relief.
[13] As to costs, the order below was based on a custody and access result which we have set aside. We would therefore set aside the costs order below as well. In the circumstances, it is our view that there should be no costs of the trial nor any costs of this appeal.
[14] Given the nature of the dispute, if this court can be of assistance in the carrying out of our order, we may be spoken to.
Released: July 4, 2002 “JS” “S.T. Goudge J.A.”
“Janet Simmons J.A.”
“E.E. Gillese J.A.”
