Court of Appeal for Ontario

Date: 2019-09-17 Docket: C65827

Judges: Hoy A.C.J.O., Nordheimer and Jamal JJ.A.

Between

Stephanie Montforts Applicant (Respondent in Appeal)

and

David Clarke Respondent (Appellant in Appeal)

Counsel

Amanda Chapman, for the appellant

Jesse Schmidt, for the respondent

Hearing and Decision

Heard: September 11, 2019

On appeal from: The order of Justice Bonnie Wein of the Superior Court of Justice, dated July 24, 2018 with reasons reported at 2018 ONSC 4519

Reasons for Decision

[1] The appellant appeals from the judgment granted by the trial judge that awarded the respondent sole custody of the parties' then twelve-year-old son, along with various ancillary orders.

[2] The appellant raises three grounds of appeal. A fourth ground of appeal was abandoned. First, he contends that the trial judge failed to give proper weight to the preferences that the son expressed, including those communicated to the Office of the Children's Lawyer (OCL) as to where he would live and go to school. We cannot find any substantiation for this contention. The son expressed different preferences during his three interviews with the OCL. However, he had expressed a desire to live in Orangeville to both the OCL Clinical Investigator and his therapist. The trial judge's decision was consistent with the son's preference about where he would live as expressed to both the Clinical Investigator and his therapist. It was also consistent with the son's preference about the appellant's weekend access, as expressed to his therapist. The trial judge gave careful and detailed reasons for her decision. It is apparent from any fair reading of her reasons, that the trial judge was fully aware of, and gave careful consideration to, the son's preferences in her analysis of the best interests of the child.

[3] Second, the appellant asserts that the trial judge's reasons are inadequate because they do not specifically refer to the factors in s. 24(2) of the Children's Law Reform Act, R.S.O. 1990, c. 12. We do not agree. As we have already noted, the trial judge's reasons were careful and detailed. She would be well aware of the requirements of s. 24(2). The trial judge was not required to make specific reference to that subsection nor was she required to expressly address each and every factor that is set out in s. 24(2). What is clear is that the trial judge considered all of the circumstances surrounding the child and his best interests in reaching the conclusion regarding custody. Indeed, she refers on at least five separate occasions, in the course of her reasons, to that very issue.

[4] Third, the appellant says that the trial judge either misunderstood or misapplied the law relating to when it is appropriate to order joint custody in the parallel parenting mode. Yet again, we cannot find any substantiation for that assertion. The trial judge was well aware that this case was one of high conflict between the parties. Indeed, it is apparent from the record that the appellant and respondent find it difficult to communicate with each other on the most basic matters. A parallel parenting order in which each parent is allocated his or her exclusive sphere of decision-making still requires some ability of the parents to communicate in the face of inevitable gaps in even the most detailed order: see, for example, Kaplanis v. Kaplanis, [2005] O.J. No. 275 at 4 (C.A.). Here too, the trial judge's decision was fact-based and entitled to deference.

[5] Finally, in his factum, the appellant complained that the trial judge did not adequately consider his offer to settle in deciding the issue of costs. This issue was not pursued in the argument of this appeal. However, since it is mentioned in the factum we make a brief comment on it. As her endorsement on costs makes clear, the trial judge was aware of the offer to settle. There was no need, given the disposition that she had made on the main issues, for her to give any particular consideration to that offer to settle in the context of her overall disposition of the costs.

[6] The appeal is dismissed. The respondent is entitled to her costs of the appeal fixed in the amount of $23,000 inclusive of disbursements and HST.

"Alexandra Hoy A.C.J.O."

"I.V.B. Nordheimer J.A."

"M. Jamal J.A."