Court of Appeal for Ontario
Before: Paciocco, Monahan and Wilson JJ.A.
Between
D’Arcy Mosher Applicant (Appellant)
and
Angela Bossence Respondent (Respondent)
Counsel: D’Arcy Mosher, acting in person Brian Kelly, for the respondent
Heard: January 17, 2025
On appeal from the order of Justice Sharon Hassan of the Superior Court of Justice, dated February 13, 2024, with reasons reported at 2024 ONSC 878.
REASONS FOR DECISION
1The appellant, D’Arcy Mosher, appeals a decision made after a seven-day Superior Family Court trial that altered terms of a March 2014 consent order respecting decision-making responsibility relating to his daughter, A.B-M. The trial judge made this alteration after finding that there had been on a material change in circumstances. She reasoned that although Mr. Mosher and the respondent mother, Angela Bossence, have been able to achieve consensus on some issues, the “shared custody” provided for in the consent order was never achieved. The trial judge attributed problems with the order for shared custody to ongoing and continuing parental conflict and resentment, as well as the failure of the parties to understand what joint decision-making responsibility entails, a problem partially attributable to the lack of specificity in the consent order. She went on to find that the ensuing acrimony between the parties over parenting decisions was adversely affecting decisions relating to A.B-M. She therefore concluded that A.B-M’s needs would be best served by assigning decision-making responsibility in the areas of conflict to one parent. She found that although both parties are capable and caring parents, the respondent is best suited to undertake this responsibility relating to schooling, health care, and extracurricular activities. She crafted detailed terms specifying the areas where the respondent would have sole decision-making responsibility, imposing terms for notification to, and input by, Mr. Mosher. She also particularized issues on which both parties could instruct A.B-M.
2Mr. Mosher, who is self-represented, argues that the trial judge conducted an unfair trial by considering omnibus documents that were appended to Ms. Bossence’s affidavit even though they were not hyperlinked or referenced in the affidavit as required by a prior judicial direction, and notwithstanding an acknowledgement by Ms. Bossence’s trial counsel that these documents would not become evidence unless they were raised during the trial. We are not persuaded that the trial judge relied on documents that had not been properly admitted. Mr. Mosher could not identify any specific documents from the omnibus filing that were relied upon by the trial judge. He offers only his speculation that she must have done so because, in his view, she made findings adverse to him that are not supported by the admissible evidence. This ground of appeal is not made out.
3Mr. Mosher also argues that the trial judge made numerous palpable and overriding errors by misapprehending extensive evidence that Ms. Bossence repeatedly and flagrantly breached court orders and gave “false narratives” to medical, school and child welfare professionals. He submits that she also made adverse findings about his behaviour without supporting evidence. He argues that her decision that Ms. Bossence was more child-focused relating to issues of educational and extracurricular activities and health care, while he was more focused on gathering evidence to support ongoing litigation, was not supported by the evidence. And he submits that the trial judge erred by failing to determine which party was primarily responsible for the conflict, in his view, Ms. Bossence.
4Mr. Mosher’s profound disagreement with the trial judge’s decision is evident. But he has not persuaded us that the trial judge erred. It is clear from her careful and detailed decision, as well as the extensive trial record, that the trial judge considered and paid close attention to the evidence. She was acutely aware of the history and dynamics of the relationship, recognizing that neither party was without fault. She identified the applicable legal principles and came to reasoned conclusions. Those decisions were made after an extensive trial and her conclusions are entitled to considerable deference by this court: B.J.T. v. J.D., 2022 SCC 24, 469 D.L.R. (4th) 183, at paras. 52–53; Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014, at paras.11–12. We see no basis to interfere.
5In his factum Mr. Mosher indicated that trial judge’s costs decision was also at issue. He did not seek leave to appeal her costs determination, nor did he address why that decision was wrong. The costs order is not facially flawed. We are left with no basis for considering or allowing this ground of appeal.
6The appeal is dismissed. After considering costs submissions and the material provided, we order costs on the appeal to be paid to Ms. Bossence in the amount of $15,000, inclusive of disbursements and applicable taxes.
“David M. Paciocco J.A.”
“P.J. Monahan J.A.”
“D.A. Wilson J.A.”