Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20241108 DOCKET: COA-23-CV-1082

Huscroft, Trotter and Dawe JJ.A.

BETWEEN

Janet Mary Maceroni Applicant (Respondent)

and

Leo Frank Maceroni Respondent (Appellant)

Counsel: Brian Ludmer, for the appellant Amy Johnson and Tristan J. Miller, for the respondent

Heard: November 6, 2024

On appeal from the order of Justice Kirk W. Munroe of the Superior Court of Justice, dated September 13, 2023, with reasons at 2023 ONSC 5172.

Reasons for Decision

[1] This is an appeal from a trial decision concerning a dispute over parenting time and decision-making responsibility. At the conclusion of the hearing, we dismissed the appeal without calling on counsel for the respondent, with reasons to follow. These are those reasons.

[2] The appellant father and the respondent mother separated in 2016. They have three children, the oldest of whom is now an adult. The younger two children are twins. They were 16 years old at the time of the trial decision, and are now 17 years old.

[3] The sole disputed issue at trial was the father’s request for a change in the shared decision making and 50/50 parenting time arrangement. The father maintained that the existing arrangement was not working because of “alienation” by the mother. He sought a 90-day “protective separation” order during which the twins would reside solely with him and have no contact with the mother. The mother opposed this order and argued that the existing parenting arrangement should continue.

[4] After a ten-day trial, the trial judge gave lengthy reasons in which he explained why he found that “it is in the best interests of [the twins] to continue with the existing shared parenting and decision-making.” He awarded $100,000 in all-inclusive costs to the mother. This was considerably less than the amount the father had been seeking on a partial indemnity basis, which was more than $450,000 for fees, disbursements and HST.

[5] The father appeals both the trial decision and the costs award, and seeks leave to adduce fresh evidence about events since the trial judgment. The mother also seeks to adduce responding fresh evidence.

[6] The father’s grounds of appeal can all be characterized as attempts to challenge the trial judge’s findings of fact and assessment of the evidence. The father does not take issue with the trial judge’s conclusion that a 50/50 parenting arrangement would be in the best interests of the children. However, he alleges that the trial judge made “palpable and overriding errors of fact finding” by not accepting the father’s evidence that the existing 50/50 parenting arrangement would fail without intervention by the court.

[7] According to the father, it was “predictable and inevitable” on the evidence at trial that the existing parenting plan would fail. He seeks to adduce fresh evidence that he says shows that the plan has failed, and that the twins are now refusing to have any contact with him.

[8] The scope of appellate review in parenting dispute cases is “narrow”: Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014, at para. 11. A trial judge’s determination of the best interests of a child is “owed significant deference on appeal”, and we can only intervene “if there is a material error, a serious misapprehension of the evidence, or an error in law”: Shipton v. Shipton, 2024 ONCA 624, at para. 6. As Pardu J.A. explained in A.M. v. C.H., 2019 ONCA 764, 32 R.F.L. (8th) 1, at para. 74:

Each case must be determined on its own specific facts. The trial judge hears from all the witnesses and as such, is in the best position to assess the child’s best interests. If there is no error in law, no palpable and overriding error of fact, and no misapprehension of evidence, appeal courts should not interfere.

[9] In this case, we are not persuaded that the father has shown that the trial judge made any palpable and overriding errors. His reasons show that he properly considered all of the evidence, and reached conclusions that were open to him on the trial record. The father essentially wants us to reassess and reweigh the evidence and draw different conclusions, including on issues of credibility. That is not our function.

[10] The father seeks to support his argument that the trial judge should have concluded that the existing 50/50 parenting arrangement would not work by adducing fresh evidence that the arrangement has, in fact, failed. In response, the mother has filed her own fresh evidence of post-trial events.

[11] The admission of fresh evidence on appeal is governed by the well-established test in Palmer v. The Queen, [1980] 1 S.C.R. 759. As Karakatsanis J. noted in Barendregt v. Grebliunas, 2022 SCC 22, 469 D.L.R. (4th) 1, at para. 4:

In cases where the best interests of the child are the primary concern, the Palmer test is sufficiently flexible to recognize that it may be in the interests of justice for a court to have more context before rendering decisions that could profoundly alter the course of a child’s life. At the same time, finality and order are critically important in family proceedings, and factual developments that occur subsequent to trial are usually better addressed through variation procedures.

She noted further that “the admission of post-trial evidence on appeal may be unnecessary because, unlike decisions that award damages in one final order, litigation about ongoing parenting arrangements remains subject to court oversight”: Barendregt, at para. 73.

[12] In this case, even if we were to conclude from the proposed fresh evidence that the parenting order made by the trial judge is no longer working, this would not lead us to find that the trial judge committed any reversible error. Predictions of future events are necessarily imprecise, and the fact that a parenting order has not worked out as the judge who made the order hoped and expected does not mean that the judge’s decision was wrong when it was made. As Karakatsanis J. noted in Barendregt, at para. 77:

An appeal … is designed to determine whether there is an error in the trial decision. In other words, the correctness of the previous decision — and not the implications of subsequent events — is the focal point in an appeal. This assessment is inherently retrospective, with the review typically circumscribed within the four corners of the judgment below. Here, finality in the original decision is preserved unless the court identifies a material error.

[13] This court is not the appropriate forum to resolve any problems that have arisen with the implementation of the trial judge’s parenting order. The father obtained an enforcement order on April 22, 2024, and the mother’s motion for leave to appeal this order to the Divisional Court was denied on July 12, 2024: Maceroni v. Maceroni, 2024 ONSC 3688 (Div. Ct.). In our view concerns raised by the father are ones that must be addressed in the Superior Court: see A.M. v. C.H., at para. 91; Barendregt, at paras. 73-80. We would accordingly decline to admit the fresh evidence.

[14] On the issue of costs, the father complains that he was not given the chance to make costs submissions after the trial judgment was rendered. He submits that if he had known the outcome, he would have urged the trial judge to award costs to him, even though he was the unsuccessful party.

[15] However, the trial judge stated in his reasons that the parties were allowed to make written submissions on costs before they made their final submissions. The father has not cited any authority for his contention that the rules of natural justice required him to have the opportunity to make further submissions once the outcome of the trial was known.

[16] Costs orders are discretionary, and may only be appealed with leave: Court of Justice Act, R.S.O. 1990, c. C.43, s. 133(b). Leave will only be granted when there are “strong grounds” for appeal: Knight v. Knight, 2019 ONCA 538, at para. 15. We are not satisfied that the father has met this high threshold.

[17] The appeal is accordingly dismissed. Leave to appeal the costs award is not granted. Costs of the appeal, and of the previous motion and cross-motion that were reserved to the panel, are fixed at $20,000 all inclusive, payable by the appellant to the respondent.

“Grant Huscroft J.A.”

“Gary Trotter J.A.”

“J. Dawe J.A.”