CITATION: Agboola v. Unoh, 2024 ONSC 6191
DIVISIONAL COURT FILE NO.: DC-19-00000035
DATE: 20241113
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Sachs, Hebner and Davies JJ.
BETWEEN:
Ayodele Mobolaji Agboola
Appellant
– and –
Emma Samuda Unoh
Respondent
Ayodele Mobolaji Agboola, acting in person
Mr. Steven L. Nagy, for the Respondent
HEARD at Hamilton: June 7, 2024
P.L. HEBNER J.
Overview
[1] The appellant, Mr. Agboola, and the respondent, Dr. Unoh, have a child, Zoe Joy Agboola, born October 1, 2014. The parties have engaged in a lengthy course of litigation involving custody (now decision making) and access (now parenting time) for Zoe. On June 27, 2019, after a 14-day trial, Turnbull J. released his reasons for judgment providing that Dr. Unoh have sole custody and Mr. Agboola have access two weekends per month, virtual access three times per week and specified holiday access.
[2] Mr. Agboola appealed the judgment to this court seeking a new trial or, alternatively, an order granting him custody of Zoe.
[3] Mr. Agboola brought a motion for an order allowing him to file new evidence on the appeal. For reasons given orally on June 7, 2024, that motion was dismissed. For the following reasons, the appeal is also dismissed.
Factual Background
[4] The appellant is in his mid-40s and is a software engineer living and working in Colorado. The respondent is also in her mid-40s and is a psychiatrist living and working in St. Catharines.
[5] The appellant and the respondent were married in New York on August 16, 2011, and began their married life in St. Catharines, Ontario. In September of 2012, the appellant obtained a job in New Jersey. The parties travelled back and forth between St. Catharines and New Jersey until September 2013 when the appellant decided to go to bible college in Colorado. The respondent reduced her workload with the Niagara Health System, put her private practice on hold and began bible studies in Colorado with the appellant. The respondent returned to St. Catharines periodically to work and see some clients.
[6] The parties registered at the bible college in November of 2013. They discovered that the respondent was pregnant with Zoe in February of 2014. Zoe was born in Colorado in October of 2014 and has dual US-Canadian citizenship. The respondent took a six month leave of absence from the Niagara Health Care Centre.
[7] In May of 2015, the respondent returned to work at Niagara Health Care Centre and took a full-time locum position for the summer in North Bay, Ontario. The family stayed together in North Bay for the summer. While working in St. Catharines, the respondent and Zoe stayed with family and friends.
[8] In September of 2015, the appellant opted to do another year of bible college. The parties obtained an apartment in St. Catharines where the family could stay while in Canada and moved back to Colorado.
[9] By October of 2015, there was considerable tension in the marriage. With the consent of the appellant, the respondent took Zoe to visit the appellant’s parents in Ottawa. She then took Zoe to the apartment in St. Catharines and, in November, told the appellant she would not be returning to Colorado.
Procedural History
[10] The appellant brought an application under the Hague Convention on the Civil Aspects of International Child Abduction, 25 October 1980, Can. T.S. 1983, No. 35, in July of 2016 seeking Zoe’s return to Colorado. The application was dismissed by Scott J., the appellant’s appeal to the Divisional Court was dismissed and leave to appeal to the Court of Appeal was denied.
[11] The respondent commenced an application under the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”), in June of 2016. It is that application that was tried by Turnbull J. with reasons for judgment released in June of 2019.
The Trial Judge’s Decision
[12] In a lengthy oral decision, the trial judge’s order included the following:
The respondent, Dr. Unoh, shall have sole custody of Zoe;
The respondent shall keep the appellant, Mr. Agboola, fully informed of major decisions regarding the education, health, religion and extra-curricular activities of Zoe.
The appellant shall be entitled to obtain information from teachers and health practitioners directly.
Zoe shall not be removed from Ontario without the respondent’s consent, which shall not be unreasonably withheld.
The appellant shall have access while he lives in Colorado or any location more than a two-hour drive from the respondent’s residence as follows:
a. The first and third weekends of every month from Friday at 4:30 p.m. to Sunday at 6:00 p.m., including Monday in the event of a statutory holiday.
b. The respondent shall have Christmas and Easter every year as the appellant does not celebrate Christian holidays.
c. The appellant shall have the right to a seven-day access period each year from December 27.
d. The appellant shall have access for the American Thanksgiving weekend each year.
e. Notice provisions were put in place for all access times to determine the appellant’s intentions and to facilitate flight times and other logistics.
f. The appellant shall have Skype access every Monday, Wednesday and Friday at 6:00 p.m.
- A police assistance order was made under s. 36(2) of the CLRA and s. 141 of the Courts of Justice Act, R.S.O. 1990, c. C.43.
The Issues
[13] The issues are not set out succinctly in the notice of appeal. Moreover, the issues set out in the notice of appeal and the factum filed by the appellant are somewhat different. Based on
these two filings and the oral submissions of the appellant, I discern the following as issues raised on appeal:
The trial judge did not consider the maximum contact principle in his decision;
The trial judge did not consider all the factors affecting the best interests of the child;
The trial judge failed to consider evidence that was:
a. Manifestly injurious to the case of the respondent; and/or
b. Beneficial to the appellant’s case;
The trial judge did not permit the appellant to fully present his evidence on family violence;
The trial judge misapprehended the evidence and/or failed to make findings of fact where necessary and/or did not refer to pertinent evidence in his judgment;
The trial judge did not include in his decision sufficient references to case law thus avoiding the expected comity in judgments;
A reasonable apprehension of bias was raised as the trial judge failed to consider case law provided by the appellant and considered evidence in an uneven manner.
[14] I would group the issues raised by the appellant into four categories:
Failure to consider the maximum contact principle and the factors affecting the best interests of the child;
Evidentiary issues including failure to consider evidence, failure to give appropriate weight to evidence, a misapprehension of evidence and failure to permit the appellant to present evidence of family violence;
Failure to consider case law; and
Reasonable apprehension of bias.
Standard of Review
[15] The standard of review for findings of fact by a trial judge is a palpable and overriding error. The Supreme Court of Canada articulated this concept in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 1, thusly:
A proposition that should be unnecessary to state is that a court of appeal should not interfere with a trial judge’s reasons unless there is a palpable and overriding error. The same proposition is sometimes stated as prohibiting an appellate court from reviewing a trial judge’s decision if there was some evidence upon which he or she could have relied to reach that conclusion.
[16] The standard of review on a pure question of law is correctness: Housen, at para 8. The standard of review on a question of mixed fact and law (or the application of a legal standard to a set of facts) is the same as the standard on a question of fact, namely palpable and overriding error: Canada (Minister of Health) v. Elanco Canada Limited, 2021 FCA 191, at para. 33.
[17] In Hickey v. Hickey, 1999 691 (SCC), [1999] 2 S.C.R. 518, L’Heureux-Dubé J. said, at para. 10:
[Trial judges] must balance the objectives and factors set out in the Divorce Act or in provincial support statutes with an appreciation of the particular facts of the case. It is a difficult but important determination, which is critical to the lives of the parties and to their children. Because of its fact-based and discretionary nature, trial judges must be given considerable deference by appellate courts when such decisions are reviewed. [Emphasis added.]
[18] Although Hickey was a case dealing with support orders, the principle is equally applicable to custody and access orders: Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014, at para. 12. The reason is articulated by Bastarache J. in Van de Perre, at para. 13:
As I have stated, the Court of Appeal was incorrect to imply that Hickey, supra, and the narrow scope of appellate review it advocates are not applicable to custodial determinations where the best interests of the child come into play. Its reasoning cannot be accepted. First, finality is not merely a social interest; rather, it is particularly important for the parties and children involved in custodial disputes. A child should not be unsure of his or her home for four years, as in this case. Finality is a significant consideration in child custody cases, maybe more so than in support cases, and reinforces deference to the trial judge’s decision. Second, an appellate court may only intervene in the decision of a trial judge if he or she erred in law or made a material error in the appreciation of the facts. Custody and access decisions are inherently exercises in discretion. Case-by-case consideration of the unique circumstances of each child is the hallmark of the process. This discretion vested in the trial judge enables a balanced evaluation of the best interests of the child and permits courts to respond to the spectrum of factors which can both positively and negatively affect a child.
[19] I must keep these principles in mind when considering the grounds of appeal put forth by the appellant.
Analysis
Failure to Consider the Maximum Contact Principle and the Factors Affecting the Best Interests of the Child
[20] Section 24(6) of the CLRA provides:
In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each parent as is consistent with the best interests of the child.
[21] This provision came into force March 1, 2021. It mirrors amendments to the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), as amended, which replaced the maximum contact principle. As this appeal was heard after March 1, 2021, this section applies: O’Brien v. Chuluunbaatar, 2021 ONCA 555, 461 D.L.R. (4th) 113, at para. 49.
[22] Section 24(6) highlights the importance of a child having time with both parents while explicitly providing that the parenting time allotted must be consistent with the child’s best interests.
[23] At the time of this trial, in 2019, the CLRA did not include an express provision of the maximum contact principle. The 2019 CLRA, in s. 24, set out the factors that a court must consider in an application for custody and/or access as follows:
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,
(a) the love, affection and emotional ties between the child and,
(i) each person, including a parent or grandparent, entitled to or claiming custody of or access to the child,
(ii) other members of the child’s family who reside with the child, and
(iii) persons involved in the child’s care and upbringing;
(b) the child’s views and preferences, if they can reasonably be ascertained;
(c) the length of time the child has lived in a stable home environment;
(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;
(e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;
(f) the permanence and stability of the family unit with which it is proposed that the child will live;
(g) the ability of each person applying for custody of or access to the child to act as a parent; and
(h) any familial relationship between the child and each person who is a party to the application. 2006, c. 1, s. 3 (1); 2009, c. 11, s. 10; 2016, c. 23, s. 7 (1, 2); 2016, c. 28, s. 2.
[24] Although the statutory provisions at the time of trial did not include the current s. 24(6) of the Act, the trial judge was alive to the need for Zoe to continue to maintain relationships with both of her parents. At p. 42 of the reasons, the trial judge said:
I find on the evidence before this Court that, notwithstanding the issues between the parties, Zoe is doing well and she is growing and developing well under the primary care of the applicant. In saying that, I do not in any way wish to be understood as saying that I do not consider Mr. Agboola's role in her upbringing not to be important. He clearly loves his little girl and wishes to continue to nourish that relationship not just for himself but for the well-being of Zoe.
[25] Moreover, the trial judge instructed himself to consider the maximum contact principle before embarking on an analysis of the factors set out in s. 24(6). At pp. 43-44 of the reasons, the trial judge referred to the decision of McLachlin J. in Young v. Young, 1993 34 (SCC), [1993] 4 S.C.R. 3, at p. 12, where she said:
The ultimate test in all cases is the best interest in the child. This is a positive test, encompassing a wide variety of factors. One of the factors which the judge seeking to determine what is in the best interests of the child must have regard to is the desirability of maximizing contact between the child and each parent. But in the final analysis, decisions on access must reflect what is in the best interests of the child.
[26] The trial judge’s reasons demonstrate that he was fully cognizant of the importance of the child having time with each parent so long as the allocation of parenting time was consistent with the child’s best interests.
[27] Turning then to the factors affecting best interests, at pp. 26-27 of his reasons, the trial judge identified the factors listed in s. 24 that he was required to consider. The trial judge then referenced each of those factors in his analysis of the evidence before him. The trial judge did not reference all the evidence before him, but he was not required to do so.
[28] The Supreme Court of Canada in Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014, at para. 10, said:
In preparing reasons in custody cases, a trial judge is expected to consider each of these factors in light of the evidence adduced at trial; however, this is not to say that he or she is obligated to discuss every piece of evidence in detail, or at all, when explaining his or her reasons for awarding custody to one person over another. This would indeed be an unreasonable requirement at the end of a 26-day trial. Because of this, trial judges might sometimes appear to stress one factor over another and, in fact, it may be said that this is inevitable in custody cases which are heavily dependant on the particular factual circumstances at issue. This situation does not open the door to a redetermination of the facts by the Court of Appeal.
[29] On a reading of the entire reasons for judgment, it is clear that the trial judge considered all of the required factors in his analysis. Accordingly, I would not give effect to this ground of appeal.
Evidentiary Issues
[30] In his factum and his oral argument, the appellant focused on the following arguments:
• The trial judge was not even-handed in his treatment of missed access visits and failed to consider evidence of blocked visits;
• The trial judge did not make a credibility assessment;
• The trial judge did not properly take the evidence of family violence into account.
[31] In T.J.L. v. E.B., 2021 ONCA 75, the appellant challenged the trial judge’s findings of fact that underpinned his decision. At para. 5, the court said:
It is the trial judge’s task, and not this court’s role, to assess and weigh the evidence and make findings of fact and credibility. In child custody cases, the trial judge’s findings are subject to considerable deference on appeal, and intervention is only warranted when there is a material error, a serious misapprehension of the evidence, or an error in law: Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014, at paras. 11, 13; Perron v. Perron, 2012 ONCA 811, 113 O.R. (3d) 600, at para. 25, leave to appeal refused, [2013] S.C.C.A. No. 26. The appellant has not pointed to any such error or serious misapprehension of the evidence that would permit this court to intervene.
[32] I reach the same conclusion in this case. The trial judge extensively reviewed the history of the parties’ relationship with emphasis on their parenting. He reviewed evidence of domestic violence on the part of both parties, setting out the differing versions of events. He reviewed the evidence on the parties’ various changes in residence over the years focusing on the impact to the child. He reviewed the history of proceedings between the parties including the Hague application and proceedings commenced by the appellant in the United States. He reviewed the communications between the parties and found Dr. Unoh’s communication to be dismissive and insensitive.
[33] On July 5, 2017, at a case conference before Scott J., a consent order was signed whereby the appellant was to have parenting time with Zoe on the first and third weekends of every month from Friday at 2:00 p.m. to Sunday at 6:00 p.m. and Skype sessions each week on Mondays, Wednesdays and Fridays. The trial judge reviewed the access visits following that order and noted that the appellant chose not to exercise his right to weekend visits on 21 occasions for various reasons. He also noted the appellant’s reasons for the missed visits being travel costs and fatigue. The trial judge also considered the impact of the missed time on the child in the following excerpt:
There is no question in my mind that regular and much more frequent access visits with her father would be in Zoe's best interests and the applicant agrees with that suggestion.
[34] After reviewing all of the evidence, the trial judge related that evidence to Zoe’s best interests referencing all of the factors set out in the CLRA as it was then. The trial judge was, as is required by the legislation, laser focused on the best interests of the child throughout his review of the evidence and his analysis.
[35] As for the family violence, the trial judge reviewed the allegations of violence made by the appellant and by the respondent at pp. 21 to 23 and found as follows:
There is no question that the best thing for both parties was to terminate the marriage and remove Zoe from the spectre of seeing and hearing her parents berate, hit and demean each other.
[36] With this statement, the trial judge acknowledged violence on the part of both parties and recognized that the focus must be on the child’s best interests.
[37] The trial judge made no error of law or palpable and overriding error of fact in his consideration of the evidence.
Failure to Consider Case Law
[38] The appellant asserts that the trial judge did not consider any of the case law the appellant submitted and did not apply the principles from two cases that were binding on him. I would not give effect to this ground of appeal for these reasons:
A judge is presumed to know the law: Foulidis v. Foulidis, 2022 ONCA 362, at para. 44;
The trial judge did review the case law provided by the appellant as is apparent from the following excerpt in his reasons:
In his able submissions, Mr. Agboola helpfully referred the Court to a great number of court decisions relating to interim custody and permanent custody issues. I have reviewed them in detail over the past two weeks, especially those relating to the status quo.
- The trial judge was not required to refer to any case law. This case was about the best interests of the child. It was a trial about the facts to be found, not about the law to be applied. The trial judge was required to apply the facts of the case to the factors set out in the CLRA, and that is exactly what he did.
Reasonable Apprehension of Bias
[39] I turn then to the appellant’s allegation of bias against the trial judge.
[40] The threshold for establishing a reasonable apprehension of bias is a high one. In T.J.L. v. E.B., at para. 6, the Court of Appeal set out the principle thusly:
There is a presumption of fairness, impartiality, and integrity in the performance of the judicial role. The grounds and evidentiary support for an apprehension of bias must be substantial. See: Miglin v. Miglin (2001), 2001 8525 (ON CA), 53 O.R. (3d) 641 (C.A.), at paras. 29-30, rev'd on other grounds 2003 SCC 24, [2003] 1 S.C.R. 303; Yukon Francophone School Board, Education Area # 23 v. Yukon (Attorney General), 2015 SCC 25, [2015] 2 S.C.R. 282, at para. 30.
[41] Mr. Agboola asserts that a reasonable apprehension of bias arises because: there was an uneven handling of evidence in the reasons to the respondent’s favour; the trial judge described excerpts of evidence in a way that covered up the respondent’s malfeasance; the trial judge did not consider the precedents presented by the appellant; and the errors in the reasons favoured the respondent’s position.
[42] I see no basis for the appellant’s allegation of bias against the trial judge. The trial judge meticulously reviewed and assessed the evidence. He was equally critical of the applicant and the respondent on a number of occasions in his reasons. The trial judge’s thoughtful reasons demonstrate that his overarching concern and focus throughout was in making an order in the child’s best interests.
[43] The test to be applied when considering an allegation of bias is set out in the dissenting opinion of de Grandpré J. in Committee for Justice & Liberty v. Canada (National Energy Board), 1976 2 (SCC), [1978] 1 S.C.R. 369, at p. 394:
The proper test to be applied in a matter of this type was correctly expressed by the Court of Appeal. As already seen by the quotation above, the apprehension of bias must be a reasonable one held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is “what would an informed person, viewing the matter realistically and practically—and having thought the matter through—conclude. Would he think that it is more likely than not that Mr. Crowe, whether consciously or unconsciously, would not decide fairly.”
[44] In my view, a reasonable and informed person, having viewed the matter realistically and practically, and having thought the matter through, would conclude that the trial judge decided fairly.
Disposition
[45] For these reasons I would dismiss the appeal.
Costs
[46] The appellant states in his factum that he is appealing the costs of Turnbull J.; however, the notice of appeal does not mention the costs order as required under r. 61.03(7) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. In any event, as the appeal has been dismissed, the issue is moot.
[47] As for the costs of the appeal, the respondent was the successful party and is entitled to her costs. She seeks costs in the partial indemnity amount of $19,403, an amount that I find to be excessive. I would award the respondent costs of the appeal in the sum of $7,500.
Hebner J.
I agree _______________________________
Sachs J.
I agree _______________________________
Davies J.
Released: November 13, 2024
CITATION: Agboola v. Unoh, 2024 ONSC 6191
DIVISIONAL COURT FILE NO.: DC-19-00000035
DATE: 20241113
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Sachs, Hebner and Davies JJ.
BETWEEN:
Ayodele Mobolaji Agboola
Appellant
– and –
Emma Samuda Unoh
Respondent
REASONS FOR JUDGMENT
Released: November 13, 2024