Court File and Parties

CITATION: Rayes v. Dominguez-Cortes, 2015 ONSC 3693

COURT FILE NO.: 14-2004

DATE: 2015-06-09

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Marco Ramey Rayes, Appellant

AND:

Sahara Dominguez-Cortes, Respondent

BEFORE: Heeney R.S.J., Lofchik and Matheson JJ.

COUNSEL: Frances M. Wood, for the Appellant

Odette Rwigamba, for the Respondent

HEARD: June 8, 2015 at Ottawa

Endorsement

[1] Despite the able efforts of Ms. Wood on behalf of the Appellant, we are of the view that this appeal must be dismissed. We did not find it necessary to call on the Respondent.

[2] The decision under appeal was released by Warkentin J. on January 23, 2014, following a four day trial which dealt with issues of custody and access. The Appellant submits that the trial was unfair to him, primarily because the trial judge intervened at several points in the trial to curtail his questioning in certain specific areas. Those interventions were, in our view, quite appropriate, and were within the power of the trial judge to control the proceedings and ensure that only admissible evidence was heard. Most of the interventions occurred when the Appellant attempted to tender evidence regarding settlement discussions, which clearly offends the principle of settlement privilege. Many of the rest related to the Appellant’s attempts to delve into his personal relationship with the Respondent, and in particular to explore his theory that the Respondent was jealous over his new girlfriend. The trial judge correctly intervened on the basis that the conduct of the parties is irrelevant except insofar as it impacts upon the best interests of the child.

[3] In the same vein, the Appellant argues that the trial judge was inappropriately sympathetic to the Respondent and correspondingly antipathetic to the Appellant. We disagree. The trial judge’s reasons for judgment reflect a balanced approach to the parties and to the issues. She found that both parties are good parents, who often make good decisions for their child. Her finding that the Appellant was controlling, particularly as it relates to travel issues, was amply supported by the evidence, and the trial judge committed no palpable or overriding error in making that finding.

[4] Significantly, despite concerns about such behaviour, the trial judge found that joint custody of the child was warranted, on the basis that the parties would share equally the care and control of the child. In doing so, she dismissed the Respondent’s claim for sole custody. This result runs contrary to the Appellant’s theory that the trial judge was unduly sympathetic to the Respondent.

[5] The trial judge ruled that, despite the joint custody and shared parenting order, if the parties are unable to reach agreement on any issue, the Respondent shall have final decision-making power. Two significant exceptions to this power were specified: the location of the child’s school; and, relocating more than 30 km from the Appellant’s home. This was, in our view, a sensible way to avoid a continuation of the conflict between the parties, and thereby further the best interests of the child.

[6] Another ground of appeal was that the trial judge permitted the testimony of a social worker who testified about telephone conversations she had with the Respondent in which the Respondent was complaining about the Appellant’s behaviour. While this evidence would be hearsay if it were admitted as proof of the facts contained in the statements, its admission is ultimately of no consequence, because it played no part in the trial judge’s reasons.

[7] The Appellant also submitted that the trial judge erred in making an order relating to travel to Mexico that went beyond the scope of the orders requested by the parties. The trial judge is tasked with making an order that is in the best interests of the child. While that may at times accord with the position taken by one party or the other, the trial judge is not constrained by those positions. In this case, the order made by the judge was, once again, a sensible one, designed to avoid a repetition of the frequent conflicts between the parties over trips to Mexico, and furthered the best interests of the child.

[8] Much of the focus of the Appellant’s Factum and argument related to the trial judge’s statement that should the Appellant continue to attempt to control the mothers travel and holiday and other time with their son or attempt to control other aspects of her life, this may constitute a material change in circumstances that might be sufficient to warrant a re-examination of the current schedule. In our view, nothing turns on this because this statement cannot bind the hands of any future judge dealing with a motion to change. We view this as nothing more than a warning to the Appellant, in the hope that ongoing disputes over travel might finally become a thing of the past.

[9] In summary, the trial judge’s decision relating to matters of custody and access was balanced and thoughtful, and was clearly driven by a consideration of the best interests of the child. We find no basis to interfere.

[10] We do agree with the Appellant that the trial judge ordered that he pay 100% of s. 7 “extraordinary” expenses, without giving any reasons for so doing. However, the trial judge did expressly note that the Appellant earned $65,000 per year, while the earnings of the Respondent were only $10,000 per year. An order under s. 7 is discretionary. The “guiding principle” enunciated in s. 7(2) is that such expenses are to be shared by the parents in proportion to their respective incomes, but that is not an absolute rule. Given the extremely modest income of the Respondent, she would not have enough means to cover her own expenses, let alone have any additional income from which she could contribute toward the extraordinary expenses of the child. In such circumstances, an order that the Appellant bear the entire burden of such expenses is entirely appropriate.

[11] While it would have been preferable had the trial judge provided reasons, we are satisfied that this was a reasonable exercise of her discretion.

[12] The appeal is, therefore, dismissed.

[13] With respect to costs, counsel for the Respondent seeks costs of $16,800 inclusive of HST and disbursements. Ms. Wood, for the Appellant, argues that the appeal raised issues of importance to the child and was not unreasonable, and submits that there should be no costs. She submitted that if we were inclined to award costs, they should be fixed at $5,000.

[14] The Respondent has been wholly successful and is presumptively entitled to her costs. We see no reason to depart from that presumption. We do not agree with Ms. Wood’s characterization of the appeal. In our view, the appeal raised no issues of substance. The trial judge’s decision was balanced and fair to both sides, and provided the parties with a workable framework within which to get on with their lives and avoid further conflict. Instead of receiving and acting on that message, the Appellant chose to continue the conflict by launching this meritless appeal.

[15] In our view, a fair and reasonable amount for the unsuccessful party to pay on this appeal is $8,000 all inclusive. Costs are awarded to the Respondent in that amount, payable within 30 days.

T. Heeney R.S.J.

T. Lofchik J.

W. Matheson J.

Released: June 9, 2015