CITATION: Jamieson v. Jamieson, 2008 ONCA 675
DATE: 20081007
DOCKET: C48077
COURT OF APPEAL FOR ONTARIO
Feldman, Cronk and Rouleau JJ.A.
BETWEEN
Antonia Tracy Jamieson
Appellant (Respondent)
and
Stephen Wallace Jamieson
Respondent (Applicant)
Antonia Jamieson, acting in person
J. Pietrangelo, for the respondent
Heard: September 18, 2008
On appeal from the judgment of Justice N.M. Mossip of the Superior Court of Justice dated November 5, 2007.
By the Court:
[1] The appellant appeals from the judgment awarding sole custody of the parties’ two-year old son to the respondent father. In addition, she appeals the access provisions as well as the order that no equalization payment be made between the parties.
[2] This is an unfortunate case in the sense that both parents came to court firmly of the view that any joint custody arrangement would be unworkable and, therefore, each seeks sole custody of their son.
[3] On appeal, the appellant raises several issues, which can be summarized as follows:
The trial judge erred in finding that the parties were equally capable of parenting the child;
The trial judge took irrelevant considerations into account in awarding custody to the respondent;
The trial judge failed to appropriately consider the evidence of the appellant;
The trial judge conducted the trial in a manner that was prejudicial to the appellant; and
The trial judge incorrectly apprehended the facts with regard to the couple’s finances, resulting in an incorrect determination of the equalization payment.
[4] At the opening of the appeal, the appellant brought an application to file fresh evidence, which consisted of a 43 page affidavit and 2 volumes of attachments. The fresh evidence tendered consisted of information:
i) that was available at the time of trial, but not presented because, according to the appellant, she was not given the opportunity to do so;
ii) with respect to the issue of division of property put together by the appellant after the trial; and
iii) concerning events that occurred after the decision under appeal was rendered.
[5] In our view, the fresh material does not meet the test for admission on appeal and ought not to be admitted. We are not satisfied that, with due diligence, the first two categories of material could not have been adduced at trial. With respect to the materials dealing with post-judgment events, these are not, in our view, relevant to the decision under appeal. These latter materials seek to establish that, subsequent to the decision, the respondent restricted or denied the appellant access pursuant to the provisions in the judgment on several occasions. These concerns are best addressed either at the trial of an issue we are ordering or on a new application seeking a variance of the order for custody or the access provisions.
[6] Turning to the appeal of the custody order, the trial judge’s reasons indicate that she had no concerns about the parenting skills of either parent and concluded that the parenting abilities of both parties were perfectly adequate. The trial judge further agreed that a joint custody regime would be unworkable and inappropriate given the parties’ inability to effectively communicate about their son without animosity and disagreement.
[7] The trial judge correctly observed that the only factor to be considered in deciding custody is “the best interests of the child as determined by reference to the condition, means, needs and other circumstances of the child.” Having found that in most respects the parties are essentially on an equal footing, the trial judge then concluded that the decision turned primarily on her view of which parent best satisfied the criteria set out in s. 16(10) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), which reads as follows:
In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child, and for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.
[8] Applying s. 16(10), the trial judge then concluded that:
The … evidence satisfied me that not only was a joint custody order contrary to Stephen’s best interests because of Mrs. Jamieson’s personality and her attitude towards Mr. Jamieson, combined with her over-protectiveness of Stephen, this evidence satisfied me that Stephen’s best interests could only be satisfied by Mr. Jamieson having sole custody. He will ensure maximum contact between Mrs. Jamieson and Stephen. Mrs. Jamieson, I am satisfied on the evidence, would not do that.
[9] We see no error in the trial judge’s conclusion on this issue. There is ample evidence in the record to support this finding. In particular, we note that the trial judge relied on the evidence of Ms. VanderSlikke, a child and family services worker who had been involved with the parties for over a year. Ms. VanderSlikke testified at trial that she had investigated a number of complaints made by the appellant concerning the respondent’s care of the child. Her investigation of these complaints, including her attendance at the respondent’s home on at least eight occasions, left her with no concern about the respondent’s parenting abilities. Despite this evidence, the appellant continued to take the position, even at trial, that there were serious concerns about the respondent’s parenting skills. She claimed that the respondent was “sneaky” and must have “hid” things from Ms. VanderSlikke.
[10] The trial judge accepted Ms. VanderSlikke’s evidence concerning the respondent’s parenting abilities and felt that the appellant’s insistence that the respondent had inadequate parenting skills only served to highlight her concern that the appellant was stubborn and would not facilitate contact between the child and the respondent. We would not, therefore, give effect to the appellant’s submissions that the trial judge erred in finding that the parties were equally capable of parenting the child, considered irrelevant considerations in determining custody, and failed to appropriately consider the evidence of the appellant. In our view, the trial judge applied the correct legal principles and her findings of fact were reasonably available on the record before her.
[11] The appellant also argues that she was not given an opportunity to call some of the evidence she felt was necessary. However, from our review of the transcript, it is apparent that the appellant never advised the trial judge that she wished to call additional witnesses, or that she needed additional time to consider her position. We would not, therefore, give effect to this submission.
[12] The appellant further alleges that the trial judge misapprehended the parties’ financial situation, resulting in an incorrect determination of the equalization payment. In our view, the trial judge correctly reviewed and analysed the parties’ finances and we see no basis for interfering with her disposition in that regard.
[13] We are, however, concerned with the trial judge’s disposition on the issue of access. At the conclusion of the trial, the trial judge gave oral reasons for judgment, including a schedule of access. The appellant immediately raised concerns, pointing out that the times at which access was to be granted were unworkable given the requirements of her employment and traffic considerations. The appellant indicated that both the pick up and return times were at peak traffic times and could not be complied with given her hours of work. In response to these concerns, the trial judge indicated that she did not sit in appeal of her own orders and that, subject to the order being set aside on appeal or the parties consenting to a change, she was not prepared to address the appellant’s concerns.
[14] It is apparent from the concerns raised by the appellant that certain aspects of the access order were problematic and may not have been workable. The trial judge seems to have recognized this, but she was nonetheless unwilling to consider the further submissions of the appellant. At the point when the concerns were raised, the trial judge was not functus and, in our view, ought to have received further submissions on the issue from the parties and sought to address the concerns raised. This is particularly so given that the appellant was representing herself and the concerns raised appeared, on their face, to have merit. Where, as here, there is an acrimonious relationship and ongoing issues concerning the exercise of access, it is important that concerns respecting a workable access schedule be fully aired.
[15] In conclusion, we dismiss the appeal in all respects, except for the issue of access. We order a trial of an issue on the question of access and remit that issue to the Superior Court of Justice to be determined by a judge, other than the trial judge who conducted the first trial, as may be assigned for that purpose. The access provisions ordered by the trial judge are to remain in effect in the interim or until further order of the Superior Court.
[16] In light of the divided success on this appeal, we make no order as to costs.
“K. Feldman J.A.”
“E.A. Cronk J.A.”
“Paul Rouleau J.A.”
RELEASED: October 7, 2008