CITATION: GB v SA, 2013 ONSC 2147

DIVISIONAL COURT FILE NO.: 12 DC 1860

DATE: 2013/04/30

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

MATLOW, SWINTON and WHITAKER JJ.

B E T W E E N:

G.B.

Applicant (Respondent on Appeal)

• and –

S.A.

Respondent (Appellant)

G.B. in person

Carol A. Cochrane, for the Respondent (Appellant)

HEARD at Ottawa: April 10, 2013

Swinton J.:

Overview

1The appellant S.A. appeals the order of Polowin J. dated July 27, 2012, made on consent, which sets out the terms of custody and access for the appellant’s and respondent’s two sons. The order implemented the recommendation of an assessor jointly selected by the parties that there be parallel parenting. The appellant seeks sole custody, arguing that the order made is not in the best interests of the children and the report on which it was based contains serious errors of fact and resulted from a flawed investigation.

2For the reasons that follow, I would dismiss the appeal.

Factual Background

3The parties lived in a common law relationship from the mid-1990s until late 2009. They have two sons, N born in 2000 and J born in 2006. The parties separated in December 2009 and the respondent left the family home in February 2010.

4The respondent then brought an application seeking various kinds of relief, but, in particular, an order governing custody and access of the children under the Children’s Law Reform Act, R.S.O. 1990, c. C.12. The ensuing litigation has been high conflict, as detailed in the assessor’s report and as shown by the materials filed in court for this appeal.

5A temporary custody and access order was made by Hackland R.S.J. on April 6, 2010, without prejudice, in which the appellant was given sole custody and the respondent was given access on alternative weekends and one overnight each week.

6The parties engaged in mediation with their counsel present. The mediator’s report, dated July 15, 2010, summarizes the outcome of the mediation. The parties agreed to have Ron Stewart, MSW, RSW, an experienced assessor, “arbitrate” the issues of custody and residence of the children. The report noted that the parties would have broad rights to appeal the arbitration award.

7The parties subsequently signed an “Agreement and Consent” in August 2010, witnessed by their respective counsel at the time. The parties agreed to participate “in a custody and access assessment, including decision making, as contemplated by s. 30 of the Children’s Law Reform Act,” with the assessment to be conducted by Mr. Stewart. Paragraph 3 stated that the parties wished to use the assessment process as a vehicle to resolve parenting issues between themselves, and they agreed to be bound by any interim recommendations and to make no motions involving parenting pending the recommendations. Significantly, paragraph 4 provided that “the parties agree that they will comply with any interim or final parenting recommendations as may be made by Mr. Stewart.” In paragraph 5, they agreed that either party could obtain a court order in the form of the terms of any recommendations, subject to the appeal rights set out in the Agreement, and “this Agreement constitutes each parties’ consent to the issuing of such a Temporary or Final Order.” Finally, the Agreement preserved broad rights of appeal.

8The assessor required both parties to sign an Agreement to Participate in a Family Assessment. In this document, dated October 21, 2010, the parties gave their consent to a number of terms. The document explicitly stated that the “guiding principle for the Assessment Process will be to investigate what parenting arrangement will be in the best interests of the children.” Paragraph 8 stated that “the parents also understand that the assessor will decide how many and which references to contact as part of the assessment.”

9The assessment proceeded over a number of months, culminating in a 77 page report dated September 23, 2011 in which the assessor recommended a parallel parenting arrangement. After a phasing in stage, the children would spend a week living with each parent. Decision making would be divided between the parents, with the appellant making decisions about health (but not the children’s therapy) and the respondent about education. Decisions about recreation and leisure activities would be assigned to one parent for a year and then to the other parent for a year. Because of the conflict in the family, a Parenting Coordinator was to be appointed to monitor the decisions made. There were also provisions about therapy for each of the family members.

10Starting in October 2011, the parties have implemented the recommendations in the report. The appellant’s counsel stated in a letter in late September, 2011 that his client intended to appeal, but no steps were taken around that time, nor was a court order taken out immediately.

11The parties appeared before Polowin J. at a trial management conference on May 18, 2012 with their counsel. Apparently, the judge had held other case conferences with the parties through the litigation. She endorsed the record that the matter was resolved and the parties were to draft orders. If the parties could not agree, she would settle the orders.

12The appellant then changed counsel. Her new counsel, Ms. Cochrane, wrote to Polowin J. on July 16, 2012 in anticipation of a meeting scheduled for July 18, 2012. Counsel indicated that the appellant intended to exercise her contractual rights to challenge the assessor’s recommendations, either through s. 59.8 of the Family Law Act, R.S.O. 1990, c. F.3 (which deals with family arbitration awards); through the exercise of parens patriae jurisdiction; or through the appeal rights. She sought guidance from the judge as to how to protect her client’s rights.

13On July 23, 2012, a conference was held to settle orders. On July 27, 2012, the order under appeal was made. It essentially implements the detailed recommendations from the assessor’s report except for a change in the choice of therapist for the children.

The Appeal

14Paragraph 42 of the order is preceded by the heading “preservation of right to appeal”. The two paragraphs dealing with appeals state:

42. In accordance with the parties’ Agreement and Consent, each party’s right to appeal is preserved. A party may appeal this Order on:

(i) a question of law;

(ii) a question of fact; or

(iii) a question of mixed fact and law.

43. In the event of an appeal, the Report of Ron Stewart shall constitute the entire factual record upon which this appeal is based, except that such appeal may include reference to any facts not considered by Mr. Stewart which the Appellant asserts should have been considered by him.

15An appeal lies to the Divisional Court from an order of the Family Court under the CLRA (see s. 73 of the CLRA, as read with s. 21.9.1 of the Courts of Justice Act, R.S.O. 1990, c. C.43). As the order in issue was made in the Superior Court of Justice, Family Court Branch, an appeal of a final order lies to this Court as of right.

16While Matlow J. in his dissenting reasons suggests that the parties in their agreement and the subsequent order have tried to provide appeal rights beyond those in the relevant statutes, they have not done so, if paragraphs 5 and 6 of their agreement are read together. Paragraph 5 states that a party can obtain a temporary order on the terms of an interim recommendation or a final order, “subject to the appeal rights set out herein below”, on the terms of the final recommendations. Thus the appeal rights are only with respect to a final order. Moreover, paragraph 42 of the order under appeal provides only for a right to appeal “this order”, which is a final one. Thus, there is jurisdiction to hear this appeal.

17The appellant launched this appeal in August 2012. In it, she has raised a number of issues:

1. Did Polowin J. err in failing to consider the best interests of the children?

2. Is the order contrary to the best interests of the children because the assessor failed to consider their best interests?

3. Did the assessor misapprehend information given to him and fail to make necessary inquiries?

18In support of her appeal, the appellant sought to introduce a number of affidavits to show where the assessor misapprehended information or to show that there was significant information that he failed to obtain. For example, she sought to introduce the examination of the principal of J’s school, affidavits from two of her friends who were not interviewed by the assessor although named as references, and an affidavit from her stepmother who was interviewed but whose information was not described in the report.

19The respondent argued that this evidence should not be admitted, as it is either irrelevant or not credible and, in any event, is not material to the issues that were before the assessor. He also complained of the late service of this evidence. The affidavit material and motion to admit it are dated March 23, 2013, while the examination of the principal took place April 9, 2013. This appeal was heard April 10, 2013.

20I will deal with the evidence in conjunction with the third issue raised on appeal.

Did Polowin J. err in failing to consider the best interests of the children?

21The appellant argues that the judge failed to consider the best interests of the children, effectively “rubber stamping” the assessor’s report. This is said to be an error in law, as a judge is required to consider the best interests of the children and is not bound by the parents’ agreement with respect to custody and access.

22The appellant relies on Wainright v. Wainright, 2012 ONSC 2686 in which Nolan J. examined a number of cases dealing with a judge’s role when faced with a parental agreement on custody. Nolan J. examined case law dealing with the binding nature of an arbitration or mediation clause in a domestic contract, concluding that a court is justified in ignoring such a clause if the enforcement would be contrary to the best interests of a child (at para. 156).

23In my view, Polowin J. made no error in law in giving effect to the parties’ agreement to be bound by the recommendations of the assessor. The parties here reasonably chose a very experienced assessor to make recommendations on custody and access, and they agreed to be bound by those recommendations, rather than proceed to litigate those issues in the courts. Courts generally respect the parents’ wishes as to how to resolve custody issues, unless there is a demonstrated need to intervene in order to protect the best interests of the children. There are real advantages to the parties in coming to their own agreement or in finding an alternative to the court system, including costs savings and avoidance of the adversarial process of litigation.

24In the present case, it is clear that there was no need for judicial intervention for three reasons. First, the parties preserved a right of appeal of the order, should there be errors of law or fact that affected the soundness of the assessor’s recommendations and thereby brought into question the terms of the order.

25Second, it is evident from the report that the assessor carefully considered the best interests of the children when making his recommendations. While the judge did not state in her endorsement that she had read the report, the respondent reports that the judge indicated in the trial management conference that she had read the entire report. This is an experienced judge who was familiar with this family, as she had had other conferences with them. I am satisfied that she did consider the best interests of the children in making the consent order.

26Third, there is no indication that there was any risk to the children if the order was made. The parties had implemented the recommendations in October 2011, more than six months before the order was made. Moreover, the appellant did not bring a motion before the court with evidence to show that the children were at risk.

27This is not a case like Wainright, where the trial judge was satisfied, after hearing evidence regarding disputed issues of custody, that the mediation/arbitration mechanism the parties had agreed upon was not workable and would not be in the child’s best interests, given the parents’ inability to communicate. Therefore, she refused to include this mechanism in the court order, despite the parties’ agreement.

28In the present case, the parties agreed to be bound by the recommendations of the assessor and consented to the inclusion of the recommendations in a court order, while still preserving a broad right to appeal. While a judge may have power to refuse to make an order implementing such an arrangement where it is in the best interests of the children, in my view, the judge here was not required to hold a hearing and to determine the issue of custody and access herself, as the appellant suggests. This was not, as the dissenting reasons state, a court-ordered assessment under s. 30 of the CLRA, where the judge ultimately makes the determination on custody, having consideration to the report of a court-appointed assessor. Here, the assessor was chosen by the parties to resolve the parenting issues, and they consented to be bound by the recommendations.

Is the order contrary to the best interests of the children because the assessor failed to consider their best interests?

29In my view, it is appropriate to consider the report of the assessor in determining this appeal, as it is the basis of the court’s order.

30It is clear that the assessor approached his task from the perspective of the best interests of the children, despite the appellant’s assertion to the contrary. There are numerous references to the best interests of the children in the report, and the parties’ agreement to the assessment explicitly stated that the purpose of the assessment was to determine the children’s best interests.

31Indeed, the report of the assessor begins on p. 4 with a statement that the focus of the assessment was to determine arrangements for decision-making and access that would be in the best interests of the children. He goes on in great detail to explain why his recommendations are in the best interests of the children, so that they can continue to have loving relationships with both their parents.

Did the assessor misapprehend information given to him and fail to make necessary inquiries?

32The appellant suggests that there were many errors of fact in the report, as well as misunderstandings of what was meant by some of the individuals to whom the assessor spoke. She also submits that the investigation was incomplete because the assessor failed to speak to the school principal, the family doctor and some of her references. In support, she provided affidavits and the examination of the school principal, in accordance with the appeal provisions of the order.

33The appeal provisions state that the record of the assessor will be the factual record. However, the appellant may refer to “any facts not considered by Mr. Stewart which the Appellant asserts should have been considered by him.”

34The evidentiary provision is an unusual one. While it allows the appellant to refer to facts not considered by the assessor, I assume the purpose is to allow the appellant to show a failure to consider relevant evidence that was before him. Nevertheless, as this is an appeal, it is not the role of this Court to reweigh the evidence. Indeed, the Court is not able to do so, not having seen the individuals who were interviewed by the assessor. In my view, the proper approach to the factual issues raised by the appellant is to ask whether they demonstrate a palpable and overriding error in the findings of fact, so as to bring into question the soundness of the recommendations.

35The Ontario Court of Appeal explained the concept of a palpable and overriding error in Waxman v. Waxman, 2004 1516. A palpable error is one that is “obvious, plain to see or clear” - for example, one that is based on a misapprehension of the evidence (at para. 296). An overriding error is one that “is sufficiently significant to vitiate the challenged finding of fact” (at para. 297).

36The appellant takes issue with the scope of the investigation. In particular, she argues that the assessor should have interviewed teachers, the family doctor and her two friends who were named references.

37I see no merit to the appellant’s argument. The assessor made it clear at the outset that he would determine those whom it was necessary and helpful to contact (see the Agreement to the Assessment). Moreover, on the family assessment form that the appellant filled out, the assessor asked for five personal references and stated that he would not contact all of them. Rather, he would “select two or three people who appear to have important information.”

38The fact he did not speak to the school principal and family doctor does not undermine the thoroughness of his report. He had school reports, and they showed no problems with either boy. He had documentation showing one child had asthma.

39I note that there is a particular problem with the argument that the principal should have been interviewed. First, she is not even listed as a professional who knows the family on p. 1 of the appellant’s parent questionnaire, although two teachers are listed. There is only a passing reference to the principal in the narrative in the report.

40Second, the principal had very limited information to provide. She had no contact with the older child, N. She started working at J’s school in June 2010. Two of the incidents she discusses in detail in her examination occurred after the assessor’s report was completed – one in December 2011 (p. 6 of the transcript) and the second in February of 2012 (p. 11). Both occurred well after the assessment period, and they are of no relevance in considering the soundness of the assessor’s report. Moreover, the principal did not have firsthand knowledge of certain encounters she spoke of (p. 18 and following). She was also wrong in her recollection that the CAS had not contacted the school, as the CAS notes show the contrary. Finally, she had little, if anything, useful to offer on the key question of the respondent’s ability to parent. In the circumstances, it was reasonable for the assessor not to have interviewed her. I would give no weight to her evidence.

41As to the two friends who were names as references, the assessor reasonably spoke to two other friends of the appellant who were listed as references. It was reasonable for him to limit the number of those to whom he spoke, and the appellant had agreed to the process.

42The appellant has not shown that the assessor’s investigation was inadequate or incomplete. He had extensive meetings with the key individuals over a long period of time – eight meetings with the appellant (including five individual interviews), seven meetings with the respondent, eight meetings with N and six with J. He met twice with N alone and concluded that despite an incident in December 2009 where the respondent shook N, and despite allegations of other incidents of abuse by the appellant in April and July 2010, N was not afraid of his father and had a good and loving relationship with him. While the assessor did not “interview” J, he spoke to J alone, and he observed both parents with the children. He also spoke to therapists, the CAS, and grandparents, as well as some of the references. In my view, there is no merit to the argument that the investigation was flawed. It was a careful and thorough investigation.

43Therefore, the following affidavits are irrelevant for purposes of this appeal: proposed references L.J. and S.B.; J.B., a caregiver for J; and neighbour M.M., who witnessed an event in December 2010.

44The appellant also argues that the assessor made a number of errors of fact. She includes an affidavit from herself, as well as one from her stepmother D.A.. While D.A. was interviewed by the assessor, there was no summary of the information she provided in the report. Accordingly, I have read her affidavit, which she says contains the information she provided. Among other things, it describes events at Christmas 2009, the respondent’s relationship with his son from his first marriage, visits to London, telephone contacts, the appellant as a parent, and the children’s behaviour after separation. The appellant also includes affidavits from two therapists who take issue with certain interpretations of what they said to the assessor, as well as two references who were interviewed and take issue with the assessor’s report.

45In my view, the affidavit evidence put forth by the appellant does not demonstrate any palpable and overriding errors in the report. The material she put forth would not, in my view, have been material to the assessor’s determination of the best interests of the children, which was based both on what happened in the past and what he observed of the parties through the assessment. The assessor was well aware of the abuse allegation of December 2009, and he concluded that N did not fear the respondent but rather had a loving relationship with him. Other allegations of abuse against N were not substantiated, despite the involvement of the Children’s Aid Society and the Ottawa Police.

46The appellant focuses in particular on events from December 2009 through the summer of July 2010. While the assessor considered events in this time period, his focus was not only on the past, but on the current relationships of the children with each parent as the assessment went on through late 2010 and well into 2011, as well as the parties’ ability to parent in the future. Nothing in the affidavits filed raises any question about the soundness of the conclusions in the report about the children’s best interests.

47While I have considered the evidence put forth by the appellant, I wish to comment on the way in which this evidence came before the court. The appellant served motion material including a number of affidavits on March 27, 2013 for a hearing on April 10, 2013. She also conducted the examination of the school principal on April 9, 2013. The Notice of Appeal in this appeal is dated August 24, 2012. No explanation has been given as to why this material was filed so late, giving the respondent very little time to respond to it, and the practice should not be condoned. However, the respondent has not been prejudiced in this appeal by the late delivery of this evidence, as the material is either of no weight, as with the principal’s examination, or it fails to show any palpable and overriding error of fact.

Conclusion

48The order under appeal was made on the parties’ consent to abide by the recommendations of an assessor they chose. The assessor’s report, following a thorough and careful assessment of the situation of the parties and their children, made recommendations for custody and access that are in the best interests of the children, with the aim that they will be able to have a continuing and loving relationship with each of their parents. The assessor was aware of the hostility of the parents to each other and their ongoing difficulties in communicating. However, he crafted an arrangement in which he tried to address their problems and deficiencies so as to promote the children’s relationship with both parents. The appellant has failed to identify any error of fact or law underlying the order. There was no denial of natural justice by the judge, as found by my colleague in dissent. Accordingly, the appeal is dismissed.

49The respondent, while self-represented for financial reasons, seeks costs. A self-represented litigant can be awarded costs for disbursements as well as the economic loss caused by having to prepare and appear to argue the case (Fong v. Chan (1999), 1999 2052 (ON CA), 46 O.R. (3d) 330 (C.A.).

50In the present appeal, the respondent has disbursements for printing and binding and for filing fees. These disbursements amount to approximately $1,200.00. He has also had to take several days off work without pay to attend the examination of the school principal, to prepare for the hearing and to appear to argue the appeal. Given his yearly salary, I would award $3,000.00 for this time. Therefore, the appellant shall pay costs to the respondent of $4,200.00 for the appeal.

Swinton J.

Whitaker J.

MATLOW, J: (Dissenting)

My proposed disposition

51I respectfully disagree with the disposition of this appeal by the majority. For the reasons that follow, I would allow the appeal, set aside the order in appeal and remit the application below to the application judge (“judge”) for reconsideration in accordance with the reasons set out below. For obvious reasons, it is important that the reconsideration be given priority so that it can be completed as soon as reasonably possible. I would further order that, until the reconsideration is completed, the present arrangements for custody and access continue as if the order in appeal were still in force. Having regard to the shared responsibility for the outcome of this appeal that I would propose, I would make no award of costs of this appeal.

The statutory provisions

52This appeal requires consideration of the application of sections 24 and 30 of the Children’s Law Reform Act (“CLRA”) to the parties’ Agreement and Consent (“Agreement”). Section 24 reads, in part, as follows:

Merits of application for custody or access

24. (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4). 2006, c. 1, s. 3 (1).

Best interests of child

(2) The court shall consider all the child’s needs and circumstances, including…

Section 30 reads as follows:

Custody and Access – assistance to Court

Assessment of needs of child

30. (1) The court before which an application is brought in respect of custody of or access to a child, by order, may appoint a person who has technical or professional skill to assess and report to the court on the needs of the child and the ability and willingness of the parties or any of them to satisfy the needs of the child. R.S.O. 1990, c. C.12, s. 30 (1).

When order may be made

(2) An order may be made under subsection (1) on or before the hearing of the application in respect of custody of or access to the child and with or without a request by a party to the application. R.S.O. 1990, c. C.12, s. 30 (2).

Agreement by parties

(3) The court shall, if possible, appoint a person agreed upon by the parties, but if the parties do not agree the court shall choose and appoint the person. R.S.O. 1990, c. C.12, s. 30 (3).

Consent to act

(4) The court shall not appoint a person under subsection (1) unless the person has consented to make the assessment and to report to the court within the period of time specified by the court. R.S.O. 1990, c. C.12, s. 30 (4).

Attendance for assessment

(5) In an order under subsection (1), the court may require the parties, the child and any other person who has been given notice of the proposed order, or any of them, to attend for assessment by the person appointed by the order. R.S.O. 1990, c. C.12, s. 30 (5).

Refusal to attend

(6) Where a person ordered under this section to attend for assessment refuses to attend or to undergo the assessment, the court may draw such inferences in respect of the ability and willingness of any person to satisfy the needs of the child as the court considers appropriate. R.S.O. 1990, c. C.12, s. 30 (6).

Report

(7) The person appointed under subsection (1) shall file his or her report with the clerk of the court. R.S.O. 1990, c. C.12, s. 30 (7); 2009, c. 11, s. 13 (1).

Copies of report

(8) The clerk of the court shall give a copy of the report to each of the parties and to counsel, if any, representing the child. R.S.O. 1990, c. C.12, s. 30 (8); 2009, c. 11, s. 13 (2).

Admissibility of report

(9) The report mentioned in subsection (7) is admissible in evidence in the application. R.S.O. 1990, c. C.12, s. 30 (9).

Assessor may be witness

(10) Any of the parties, and counsel, if any, representing the child, may require the person appointed under subsection (1) to attend as a witness at the hearing of the application. R.S.O. 1990, c. C.12, s. 30 (10).

Directions

(11) Upon motion, the court by order may give such directions in respect of the assessment as the court considers appropriate. R.S.O. 1990, c. C.12, s. 30 (11).

Fees and expenses

(12) The court shall require the parties to pay the fees and expenses of the person appointed under subsection (1). R.S.O. 1990, c. C.12, s. 30 (12).

Idem, proportions or amounts

(13) The court shall specify in the order the proportions or amounts of the fees and expenses that the court requires each party to pay. R.S.O. 1990, c. C.12, s. 30 (13).

Idem, serious financial hardship

(14) The court may relieve a party from responsibility for payment of any of the fees and expenses of the person appointed under subsection (1) where the court is satisfied that payment would cause serious financial hardship to the party. R.S.O. 1990, c. C.12, s. 30 (14).

Other expert evidence

(15) The appointment of a person under subsection (1) does not prevent the parties or counsel representing the child from submitting other expert evidence as to the needs of the child and the ability and willingness of the parties or any of them to satisfy the needs of the child. R.S.O. 1990, c. C.12, s. 30 (15).

The procedure created by the parties

53The procedure for resolving the parties’ issues relating to custody and access, adopted by the judge, was a novel one created by the parties themselves and set out in the Agreement. Although paragraph 2 of the Agreement recites that the assessment was “as contemplated by section 30 of the Children’s Law Reform Act”, the rest of the procedure was substantially different from that contemplated by the CLRA. The text of the Agreement, with the exceptions of the identification of the children and the precise dates of their respective births, reads as follows:

AGREEMENT AND CONSENT

1. The parties are presently involved in the within litigation concerning, among other things, the most appropriate parenting regime regarding the children, N born in 2000 and J born in 2006.

2. The parties have agreed to participate in a custody and access assessment, including decision making, as contemplated by section 30 of the Children’s Law Reform Act, The assessment is to be conducted by Mr. Ron Stewart and the assessment is presently scheduled to commence in August or September 2010.

3. The parties wish to use to use the opportunity presented by the assessment process as a vehicle to resolve interim and final parenting issues between themselves. Therefore, the parties agree as follows:

i. The assessment will proceed before Mr. Stewart as presently agreed and each party will fully cooperate with the assessment process until it is completed.

ii. Neither party will initiate or proceed with any Motion involving parenting of the children until such time as Mr. Stewart has made his interim or final recommendations.

iii. As it is unknown as to when Mr. Stewart will complete his assessment report, the parties agree that as part of the assessment process Mr. Stewart may choose to release interim recommendations dealing with parenting from August 210, until such time as Mr. Stewart’s final report and recommendations are completed. The parties agree that Mr. Stewart shall be entitled to release such interim recommendations but is not required to do so and the decision to release such interim recommendations shall be at his sole discretion.

4. The parties agr ee that they will comply with any interim or final parenting recommendations as may be made by Mr. Stewart.

5. The parties agree that upon the release of any interim or final recommendations, either party shall be entitled to obtain a Temporary Order in the terms of the interim recommendation or a Final Order, subject to the appeal rights set out herein below, on the terms of the final parenting recommendation. This Agreement constitutes each parties’ consent to the issuing of a Temporary or Final Order.

6. The parties intend to preserve their right to appeal any Order flowing from Mr. Stewart’s recommendations. A party may appeal such an Order on:

i. a question of law;

ii. a question of fact; or

iii. a question of mixed fact and law.

7. Should either party choose to launch an appeal, as referred to above, then Mr. Stewart’s Assessment Report shall constitute the entire factual record upon which any such appeal is based, except that such Appeal may include reference to any facts not considered by Mr. Stewart which the appellant asserts should have been considered by Mr. Stewart.

Dated at Ottawa this 12th day of August, 2010

What this appeal is about

54Subsequent to the release of the assessment report but prior to the settlement of the order in appeal, the new counsel for the mother faxed a detailed letter to the judge dated July 16, 2012 seeking directions for challenging the recommendations in the assessment report. (Appellant’s Appeal Book, tab 12). The letter included the following statements:

I wanted to share with you (and with the Applicant) the advice of my client’s intentions to exercise her contractual right to challenge the recommendations made as reflected in the Custody/Access Assessment Report of Mr. Ron Stewart of the Family Therapy Associates which issued last fall. S.A. intends to oppose the enforceability or implementation of the recommendations, be it through remedial relief pursuant to s. 59.8 of the Family Law Act, through the exercise of your parens patriae jurisdiction or if necessary by way of an appeal. I am respectfully requesting Your Honour’s guidance and assistance in ensuring that my client’s rights are appropriately protected at the time we meet with you to address the Applicant’s proposal for the custody/access recommendations to be immediately endorsed by Court Order.

The Respondent takes the position that Mr. Stewart’s recommendations are contrary to the children’s best interests. Her position is that the Report should not be endorsed by Court Order and that the schedule and parenting provisions in it should not be enforced nor implemented by reasons that:

a) the children’s emotional and physical health is jeopardized by the recommendations outlined in the Report;

b) the parenting provisions outlined in the Report are unworkable, particularly as a result of the high conflict situation that is clearly identified in the Report;

c) the Assessor relied on information from certain professionals that was misunderstood or misinterpreted as confirmed by the source professionals concerned;

d) the assessment process was not procedurally even-handed, resulting in the Applicant not being treated equally or fairly and/or that bias was demonstrated as against her;

e) the Assessor failed to properly consider all relevant evidence available to him including the input of child care workers, teachers and principals of each child’s school.

At this time, we ask that Your Honour be mindful of these considerations and that our discussions with you on Wednesday afternoon recognize S.A.’ challenges to the validity of the recommendations contained in the Report by virtue of her serious concerns for the well-being of her two sons and that, if required, she intends to appeal any Order made incorporating those recommendations.

This situation is somewhat unusual and perhaps procedurally unique, and for that reason I wanted to ensure that the Respondent’s position is expressed and known to you before our attendance. I thank you in advance for your assistance and direction.

55It is obvious from the tone and contents of this letter that counsel for the mother was understandably confused by the procedure that had been prescribed and was uncertain as to how or to whom to make the challenges.

The order in appeal

56Despite the letter sent to her, the judge, over the objection of counsel for the mother, signed the order in appeal after a conference with counsel for the mother and the self-represented father held to settle the form of the order. With one minor change the order gave effect to the recommendations made by Stewart and purported to preserve the parties’ rights of appeal set out in the Agreement. Counsel for the mother was denied any opportunity to challenge the recommendations in the report and object to their adoption in the final order. It was the view of the judge that the parties’ Agreement required that she sign the order because the mother had consented to it pursuant paragraph 5 of the Agreement and was, therefore, not entitled to make any further challenge.

Observations and analysis

57It is important to bear in mind that this appeal is from the order signed by the judge. This is what it says in the notice of appeal and is repeated in the factum of the mother’s counsel. This appeal is not, and could not have been, an appeal from the assessment report.

58The Agreement is the starting point for an examination of the procedure that was followed leading to the signing of the order in appeal. As the heading above section 30 indicates, an assessment carried out pursuant to section 30 is intended to be of assistance to the court. It is not intended to usurp the duty of a judge to make an independent decision.

59Paragraph 2 recites the parties’ agreement “to participate in a custody and access assessment, including decision making, as contemplated by section 30 of the Children’s Law Reform Act”. This means that everything in the Agreement was required to be at least consistent with section 30.

60It is noteworthy that section 30 envisages that there will be a “hearing of the application” at which the assessor and other witnesses may be called and that the assessment report is to be admissible in evidence. The ultimate responsibility for deciding the issues of custody and access remains for the judge. Yet, these features, and others prescribed in section 30, are entirely absent from the procedure set out in the Agreement and no hearing was held and no witnesses were called.

61Paragraph 4 of the Agreement provides that the parties agree to “comply with any interim or final parenting recommendations made by Mr. Stewart’.

62Paragraph 5 provides, in part, that “either party shall be entitled to obtain a …Final Order, subject to the appeal rights set out below, on the terms of the final parenting recommendations. This Agreement constitutes each parties’ (sic) consent to the issuing of such a…Final Order.” This is the provision that the judge regarded as the parties’ consent to her rubber-stamping Stewart’s recommendations in the order in appeal.

63Paragraphs 6 and 7 set out the parties’ rights of appeal from “any Order flowing from Mr. Stewart’s recommendations”. They provide for appeals from “temporary” and final orders on “ a question of law”, “a question of fact” or a “question of mixed fact and law”. The order in appeal is clearly one that flows as required.

64If, as the judge demonstrated, her function was only to adopt Stewart’s recommendations, the only errors that she could possibly commit would be typographical errors occurring in the copying process and those errors could not possibly have raised questions falling into any of the three categories of appeals allowed. It follows that the wording of the rights of appeal must reflect the parties’ recognition that there was more that the judge had to than rubber-stamp Stewart’s recommendations.

65Paragraph 7, which deals with the rights of appeal, provides, that in any appeal flowing as required by paragraph 6, “Mr. Stewart’s Assessment Report shall constitute the entire factual record upon which any such appeal is based, except that such Appeal may include reference to any facts not considered by Mr. Stewart which the Appellant asserts should have been considered by Mr. Stewart”. This provision unreasonably contemplates that, on a factual record that is made up of only Stewart’s report, it would be possible for an appellate court to engage in a meaningful review of the order in appeal.

66As well, paragraph 7 contains an exception to the entire factual record provision by providing that “except that such Appeal may include reference to any facts not considered by Mr. Stewart which the Appellant asserts should have been considered by Mr. Stewart”. This provision unreasonably contemplates that, on a factual record that is made up of only the report, it would be possible for an appellate court to engage in a meaningful appeal requiring consideration of facts not considered by Stewart and, therefore, not mentioned at all in his report.

67If the words “may include reference to any facts not considered by Mr. Stewart” was intended to automatically provide for the admission, on appeal, of affidavit or other forms of evidence setting out the missing facts for the first time, the conduct of such appeals would be unimaginable.

Conclusions

68Although their efforts were well motivated, the parties’ Agreement was poorly conceived and poorly drafted. It is confusing, internally contradictory and it failed to provide for an assessment as contemplated by section 30 of the Children’s Law Reform Act as it purported to do. Rather, the parties, by the Agreement imported the concept of an assessment from the CLRA and then created their own confusing and conflicting procedure. In such circumstances, the judge ought not to have adopted the draconian procedure that she apparently understood the Agreement prescribed. To do so was an error of law.

69The judge’s decision to deny counsel for the mother a proper opportunity to raise the mother’s challenges to Stewart’s report and ask that the judge not adopt Stewart’s recommendations in the order in appeal was a denial of natural justice.

70By doing so, the judge lost sight of her duty, pursuant to section 24 of the CLRA, to ensure that the order would reflect her own view of what was in the best interests of the children, not only Stewart’s. The judge was required to consider the recommendations set out in the Stewart report and she was obliged to give it the weight she considered appropriate and she was not entitled to blindly rubber stamp Stewart’s recommendations. However, by denying the mother an opportunity to challenge Stewart’s recommendations, the judge made it impossible for her to properly comply with her obligation pursuant to section 24.

71Paragraphs 6 and 7 of the Agreement, which deal with the parties’ rights of appeal, which were adopted by the judge in paragraphs 42 and 43 of the order in appeal, are very problematic. Because the Divisional Court is a statutory court, its jurisdiction is defined solely by statute and cannot be enlarged by an agreement of parties or an order of any court. Nor can its procedures be changed merely by agreement.

72In spite of this, paragraph 6 of the Agreement purports to create a right of appeal without leave from any order flowing from Mr. Stewart’s recommendations which would include what the Agreement refers to as “Temporary Orders”. Such orders are interlocutory orders and Rule 62 provides that appeals from such orders to the Divisional Court may be made only with leave granted by a judge.

73Paragraph 7 of the Agreement purports to enlarge the jurisdiction of the Divisional Court and prescribe procedures which are inconsistent with the applicable Rules. It was, therefore, unenforceable and so was paragraph 43 of the order in appeal. As well, the purported preservation of the parties’ rights of appeal to the Divisional Court in paragraphs 42 and 43 of the order in appeal was beyond the jurisdiction of the judge.

74And, finally, the rights of appeal created by the parties were illusory because they were, as this appeal shows, unworkable and not a reasonable substitute for a proper hearing before the judge who already had knowledge about the background of the parties’ disputes. The parties would have been much better served if they had been content to rely on the rights of appeal prescribed by statute and the applicable Rules of Civil Procedure.

Comments on the majority reasons

75In paragraph 6 of the majority reasons, Swinton, J. points out that, according to the mediator’s report, it was the intention of the parties to have Stewart arbitrate the issues between them. However, it is not what is contained in the mediator’s report that determines whether or not Stewart actually acted as an arbitrator. Rather, it is the parties’ Agreement, the specific reference in it to section 30 of the CLRA, their agreement with Stewart and how Stewart actually carried out his role that determine what his role was and make it clear that he was an assessor and not an arbitrator.

76In paragraph 24 of her reasons, Swinton, J. states the following:

In the present case, the parties agreed to be bound by the recommendations of the assessor and consented to the inclusion of the recommendations in a court order, while still preserving a broad right to appeal. While a judge may have power to refuse to make an order implementing such an arrangement where it is in the best interests of the children, in my view, the judge here was not required to hold a hearing and to determine the issue of custody herself, as the appellant suggests.

It is this statement which demonstrates most clearly why I take issue with the views of my colleague. Although she recognizes that the judge may have had the power to refuse to rubber stamp the recommendations in the Stewart report where it is in the best interests of the children, she overlooks the fact that it was necessary that the judge consider the mother’s challenges first in order to know what the best interests of the children require her to do. This is the point I attempted to make in paragraph 66 above.

77In paragraph 29 and following of her reasons, Swinton, J. addresses the appeal provisions set out in paragraphs 6 and 7 of the Agreement and adopted in paragraphs 42 and 43 of the order in appeal. She states that “This appeal provision is an unusual one. Nevertheless, as this is an appeal, it is not the role of the court to reweigh the evidence. Indeed, the court is not able to do so, not having seen the individuals who were interviewed by the assessor. Therefore, the proper approach to the factual issues raised by the appellant is to ask whether they demonstrate a palpable and overriding error in the findings of fact”. By doing so, she falls into error and approaches this appeal as if it were an appeal from Stewart’s report issued by him in his role as an arbitrator.

78I agree with her characterization of the problem but not with what she describes as “the proper approach”. Paragraph 7 of the Agreement, which is adopted in paragraph 43 of the order in appeal, provides that the factual record on an appeal may be extended beyond Stewart’s report to include “reference to any facts not considered by Mr. Stewart which the Appellant asserts should have been considered by him”. It is not at all clear how this reference is to be made but the clear implication is that the appeal is to be addressed as if it were an appeal from Stewart’s report rather than from the order in appeal and that the “facts not considered by Mr. Stewart” but which should have been ought somehow to be considered by this court. She fails, however, to address how facts not considered by Stewart and not mentioned in his report could possibly demonstrate a palpable and overriding error without some evidence of what those facts are.

A final word

79There are no cases of greater importance than cases that involve custody of and access to children. The mother of the children whose lives will be affected by the outcome of this appeal wished to challenge the assessment report before the judge when the judge was about to rubber stamp its recommendations in the order in appeal. She was denied that opportunity in a process that was flawed in the extreme. She should be given that opportunity now.

The standard of review

80The errors of law made by the judge highlighted throughout these reasons, with the exception of the denial of natural justice, are all reviewable on the standard of correctness. In each of the circumstances the judge’s decision or action failed to meet that standard.

Matlow J.

Released: April 30, 2013

CITATION: GB v SA, 2013 ONSC 2147

DIVISIONAL COURT FILE NO.: 12 DC 1860

DATE: 2013/04/30

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

matlow, swinton and whitaker jj.