Williams v. Young, 2018 ONSC 5626
CITATION: Williams v. Young, 2018 ONSC 5626
DIVISIONAL COURT FILE NO.: DC-18-1102-00
DATE: 20180924
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
C. Horkins, Bale, Labrosse JJ.
BETWEEN:
SHANNON WILLIAMS Applicant/Respondent in Appeal
– and –
SCOTT YOUNG Respondent/Appellant in Appeal
B. Nielsen, for the Respondent in Appeal
S. Philbert, for the Applicant in Appeal
HEARD at Oshawa: September 24, 2018
ORAL REASONS FOR JUDGMENT
Labrosse J (Orally):
OVERVIEW
[1] On September 24, 2013, the Respondent moved to change the Final Order of Olah J., dated April 6, 2011, and requested that she have sole custody of the child and that the Appellant have access to the child on alternate weekends with pick up at her current address in Barrie, Ontario; that the Appellant pay s.7 daycare expenses; and that a police enforcement clause be issued.
[2] The Appellant requested an Order granting him sole custody of the child and primary residency; that the Respondent have access on alternate weekends; access exchange to occur at the Newmarket Police Station; termination of his current child support obligations and requesting child support from the Respondent.
[3] In her judgment, the trial judge ordered that the parties would continue to have joint custody of the child and that the Appellant will have access on alternate weekends. The Final Order implements a form of parallel parenting with respect to the issues of health, education, religion and extracurricular activities.
[4] The Appellant appeals from the decision of Olah J. arguing that her conclusion following a finding of a material change in circumstance should have been an order of sole custody to the Appellant Father.
[5] The Appellant initially filed his appeal in the Court of Appeal for Ontario. On July 5, 2018, the Court of Appeal found that the appeal should be transferred to the Divisional Court to be heard in a timely way.
STANDARD OF REVIEW
[6] The Supreme Court of Canada addressed the standard of review of an appeal from a judge’s decision in Housen v. Nikolaisen, (2002) SCC 33, 2002 SCC 33, [2002] 2 S.C.R. 235. The court held that questions of law are to be reviewed on a “correctness” standard, questions of fact are to be reviewed on a “palpable and overriding error” standard, and because mixed questions of fact and law “lie along a spectrum,” the standard will depend on the circumstances.
[7] The parties agree on the standard of review in custody cases and both cite the Supreme Court of Canada in Van de Perre v. Edward (2001 SCC 60) and the Court of Appeal for Ontario in Perron v. Perron. (2012 ONCA 811) There is a high standard of review for cases involving child custody disputes. Appellate courts must give significant deference to the decisions of family court judges. An appellate court may only intervene when there has been a material error, a serious misapprehension of the evidence, or an error of law. Even where an error is found, the court must put a child’s best interest first in fashioning a remedy.
BACKGROUND
[8] The Appellant and Respondent are the parents of a child who was almost nine years old at the time of trial in September 2016. The parents were relatively young parents with the Applicant being 30 years old and the Respondent being 31 years old at the time of trial. The parties cohabited from April 2007 and separated in March 2008, shortly after the child was born. The parties had a tumultuous relationship that involved violence.
[9] At the time of trial, the Respondent lived and worked in Barrie as a paralegal. She had four children. Her partner at the time and the father of her youngest child was a computer technician and worked out of her home. He was significantly involved in the parenting of all four children.
[10] The Appellant lived in North York and was employed as a security liaison at a post-secondary institution. He was married and at the time of trial had been in the relationship with his wife for five years. He had a stepson who lived with him and his wife.
[11] The trial judge who presided over the motion to change considered the parties’ respective claims to a material change of circumstance. Both parties were claiming that the material change warranted an order for sole custody in their favour.
[12] The trial judge concluded that there had been a material change in circumstance and went on to review custody by applying the best interests of the child test. A very thorough analysis of the relevant criteria led her to conclude that it continued to be in the child’s best interest for the parents to have joint custody in the form of parallel parenting. She then considered the issue of residency and ruled in favour of the status quo with the child continuing to reside primarily with the Respondent Mother and his other half-siblings, particularly Aadyn, with whom the child was particularly close.
ISSUES RAISED
[13] The Appellant raises the following issues on appeal:
i. Whether the trial judge erred in law in treating as factual the hearsay evidence upon which the opinions of Dr. Hansen were based?
ii. Whether the trial judge erred in law and in evidence when she relied upon facts that were not presented at trial in support of her findings?
iii. Whether the trial judge erred in law when determining joint custody to be in the child’s best interest?
iv. Whether the trial judge committed an error of law when she failed to consider whether the Appellant should be granted sole custody of the child?
v. Whether the trial judge erred in fact when she found that the Appellant had pled guilty and received a discharge on the offence involving his stepson?
ANALYSIS
[14] The trial judge’s reasons reflect that she considered the appropriate legal principles in her decision and made no errors of law.
[15] With respect to the first two issues raised, there may have been some confusion as to the weight to be attributed to some of the third party evidence. Specifically, with respect to findings of fact relating to the child’s need for stability, there was ample evidence for the trial judge to conclude that it was not in the child’s best interest to be subject to further instability. While the trial judge may have misinterpreted Dr. Hansen’s November 6, 2015 report, her conclusion that any further change in schooling and residence was not in the child’s best interest is entirely supported by the evidence. She made no palpable and overriding error.
[16] On the issue of the finding that the Appellant pled guilty to assault against Ethan, this was a minor issue. The trial judge’s finding is not clear on what she understood to have been the result on those charges and we conclude that in any event, any belief she had that the Appellant had pled guilty to assault against Ethan played a minor role in her decision making, if any.
[17] We disagree that the trial judge failed to consider sole custody to the appellant. It is clear from the trial judge’s reasons that she assessed who should have custody of the child. While she did not do a specific analysis of sole custody to either parent, her analysis took her firstly to joint custody. She concluded that joint custody should be maintained with the implementation of parallel parenting and as such there was no need to perform a further separate analysis of the merits of an award of sole custody to either parent.
[18] Finally, the trial judge’s analysis that joint custody was in the best interests of the child was available to her. The trial judge performed the correct legal analysis and made findings of mixed fact and law from which there is no extricable error. Her findings are entitled to deference.
[19] We find that Olah J. made no errors in the assessment of the case. Her findings were properly supported by the evidence and the Appellant has failed to identify a reviewable error.
[20] For these reasons, the appeal from the decision of Justice Olah is dismissed.
C. HORKINS J.
[1] Appeal is dismissed. Oral reasons provided today. It is agreed that there shall be no costs awarded either from the Court of Appeal attendance or today.
Labrosse J.
I agree
Horkins J.
I agree
Bale J.
Date of Reasons for Judgment: September 24, 2018
Date of Release: September 25, 2018
CITATION: Williams v. Young, 2018 ONSC 5626
DIVISIONAL COURT FILE NO.: DC-18-1102-00
DATE: 20180924
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Horkins, Bale, Labrosse J
BETWEEN:
Williams v. Young
ORAL REASONS FOR JUDGMENT
Labrosse J
Date of Reasons for Judgment: September 24, 2018
Date of Release: September 25, 2018