Court of Appeal for Ontario

Date: 20210510 Docket: C67153

Benotto, Miller and Trotter JJ.A.

Between:

David Jonathan Knapp Applicant (Respondent)

and

Keturah Lael Knapp Respondent (Appellant)

Counsel: Michael Stangarone, for the appellant Todd Hein and John C. Noonan, for the respondent

Heard: April 19, 2021 by video conference

On appeal from the order of Justice Erika Chozik of the Superior Court of Justice, dated June 18, 2019, with reasons at 2019 ONSC 7353, and from the costs order dated February 19, 2020, with reasons at 2020 ONSC 1094.

Benotto J.A.:

[1] The parties are former spouses. They were involved in a high-conflict parenting dispute. After two years and multiple court attendances, the matter culminated in an 18-day trial. The trial judge concluded that joint custody was in the best interests of the children and apportioned the decision-making authority in an attempt to avoid ongoing conflict between the parents.

[2] The mother appeals alleging errors by the trial judge.

[3] For the reasons that follow, I would dismiss the appeal.

Facts

[4] The appellant Keturah Knapp and the respondent David Knapp were married for over 13 years before separating in 2017. They have two children, now aged 11 and 8. While living together, they had roughly equal parenting time with the children.

[5] The parties are deeply religious. In 2016, the appellant’s sister was going through a divorce and the respondent sent her a letter saying he believed she would suffer grave consequences from Jesus if she moved forward with her divorce. It was around this time that the appellant and respondent’s own marital problems escalated.

[6] In early 2017, the parties decided to discuss their marital issues before two “witnesses” from their church. They had two meetings. The appellant asked the respondent to email her the biblical passages he was reading so she could better understand his position. After the meetings, he sent her the passages in an email with the subject line “Warning keturah”. The email included bible passages and comments suggesting wives should always submit to their husbands and that it was a sin for a wife to refuse to have intercourse with her husband.

[7] Around two weeks later, without warning, the appellant took the children to a women’s shelter. She refused to allow the respondent to see the children unsupervised. The appellant testified that she was afraid the respondent would hurt her or her children to do “God’s bidding”.

[8] The Office of the Children’s Lawyer (“OCL”), Children’s Aid Society (“CAS”), and the Crisis, Outreach and Support Team (“COAST”) were called in. They all investigated the respondent.

[9] CAS and COAST found the respondent was no risk to himself or his children. The OCL recommended the respondent undergo a psychological evaluation. He complied and the evaluation found no indications of abuse and supported a finding that the respondent was a “well-functioning, adaptive individual with no major personality disturbances.” Nevertheless, the OCL recommended the appellant have sole custody of the children.

Decision Below

[10] The main issue at trial was the parenting plan for the children. The trial judge was required to determine where the children would live, how much time they would spend with each parent and who would have decision-making authority. The trial judge concluded that the best interests of the children required a joint custody arrangement with parallel decision-making authority, and equal parenting time.

[11] The trial judge rejected most of the appellant’s evidence, particularly her evidence respecting the allegations against the respondent. She found no evidence the respondent was, or was at risk of becoming, neglectful or abusive. His letter to the appellant’s sister and his email titled “Warning keturah”, when read in context, were not meant to be threatening.

[12] The trial judge also rejected the bulk of the assumptions and conclusions underpinning the OCL’s report. The OCL investigator himself had observed no issues with the respondent’s parenting and failed to consider the best interests of the children in making his recommendation.

[13] The trial judge noted that neither the CAS nor COAST had any concerns with the respondent’s parenting abilities.

[14] At the conclusion of trial, the trial judge allocated decision-making between the parents: the appellant would have authority over education decisions and the respondent would have authority over medical decisions. This was in part because the appellant is fearful of traditional medicine and had a history of misrepresenting medical recommendations to the respondent.

[15] Finally, the trial judge ordered the appellant to pay the respondent $250,000 in costs.

Issues

[16] The appellant alleges that the trial judge erred: (i) by relying on hearsay when she analyzed the OCL recommendations; (ii) by failing to consider the children’s wishes; (iii) by presuming that the maximum contact principle amounted to equal parenting time; (iv) by making an order that conflicts with final orders that were previously made on consent; and (v) by awarding costs to the respondent.

Analysis

[17] It is always preferable – and in the best interests of the children – that the parenting plans be developed by the parents. That is why there is an emphasis on resolution in family law legislation and practice. When the parents cannot agree, the court must formulate a plan for them. This frequently results in at least one parent being dissatisfied. So too here.

[18] I begin with two themes that permeate the appellant’s submissions and then turn to the specific allegations set out above.

[19] The two themes are that the trial judge rejected the recommendation in the OCL report and also changed the status quo.

[20] A trial judge is not required to accept the OCL recommendations. They are just that: recommendations. Here, the trial judge made extensive factual findings rejecting the foundation of the OCL recommendations. She then proceeded to make her own assessment as to the best interests of the children.

[21] A trial judge is not bound by the perceived status quo. Here, the trial judge rejected the appellant’s evidence that she was the primary caregiver. Instead, she found that prior to the separation the parents shared parenting equally. The only change to the status quo occurred when the appellant unilaterally – and wrongly – removed the children from their home and kept them in a women’s shelter, denying the respondent parenting time.

[22] Against this background, I turn to the specific errors of law alleged.

(1) Hearsay

[23] The appellant submits that the multiple reports including from COAST and the medical records filed were presumptively inadmissible hearsay and the trial judge erred in relying upon then absent authentication.

[24] The trial judge did not err by referring to them.

[25] Many of the medical reports were filed into evidence by the appellant. The COAST report was discussed in the OCL report. Many were put to both parties in cross-examination. Neither party denied the accuracy nor sought to call the declarants as witnesses. The appellant cannot now allege that the trial judge erred by relying on documents she submitted.

(2) Views of the children

[26] There is no question that the views and preferences of children must be considered in all matters affecting them. However, they must be viewed in context.

[27] The children had been taken from their home, kept away from their father while their mother professed fear of their father. He was then only able to see them in a supervised setting with gradual increases. It would be naïve to think that these circumstances would not negatively influence the children’s views.

[28] The trial judge rejected the appellant’s testimony that she feared for her safety or the safety of her children and found that her flight to the shelter and subsequent conduct “was aimed at gaining a tactical advantage in this litigation”. In doing so she correctly gave the children’s preferences little weight.

[29] In any event the parties had agreed that the views of the children would be put in evidence through the OCL. The then 9-year old was somewhat ambivalent about where to live. The then 6-year old wanted more time with the appellant. The OCL report was not based on the wishes of the children, but on the clinician’s own views. The trial judge rejected the foundation of the clinician’s views and made her own determination as to best interest.

(3) Maximum contact

[30] The appellant submits that the trial judge erred by placing an onus on her to establish that equal parenting was not in the children’s best interests. She relies on the trial judge’s reference to Folahan v. Folahan, 2013 ONSC 2966, [2013] W.D.F.L. 4357, where the trial judge said that the onus is on a parent to rebut the presumption of equal time. As this court said in Rigillo v. Rigillo, 2019 ONCA 647, 31 R.F.L. (8th) 361, at para. 13, the maximum contact principle does not necessarily require equal parenting time.

[31] The Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) in force at the time of the trial addressed the maximum contact principle:

16(10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.

[32] The current provision of Divorce Act, is more direct:

16(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.

[33] The Children’s Law Reform Act, R.S.O. 1990, c. C.12, provided:

20 (1 ) Except as otherwise provided in this Part, a child’s parents are equally entitled to custody of the child.

[34] The trial judge applied these principles and did not mistake maximum parenting time with equal time. Nor did she place an onus on the appellant to rebut equal parenting time. Her reasons, read as a whole, demonstrate that she was alive to the principle that a child-focused approach to achieving as much parenting time as possible with each parent is the objective of the maximum contact principle. It may end up being equal time. It may not. Each family is different, and the principle is a guide set out to benefit children.

(4) Jurisdiction challenge

[35] The appellant argues that the trial judge lacked jurisdiction to make her order because it amounted to a change of the order of Coats J. made on March 20, 2019 which provided that: (i) the appellant is to take the children to counselling “to assist them in processing and coping with their feelings relating to the difficult transitions”; and (ii) neither parent would have care of the children for three weekends in a row.

[36] The appellant says that – in light of this order – the trial judge did not have jurisdiction to order that the respondent make all major decisions with respect to all medical, dental, optometrist and vaccination issues. Nor, she says did the trial judge have the jurisdiction to order a summer schedule of three weeks uninterrupted for each parent. She submits that the order is marked “final” and could only be changed pursuant to a motion to change under r. 15 of the Family Law Rules, O. Reg. 114/99.

[37] With respect, this submission borders on the frivolous.

[38] Rule 15 of the Family Law Rules does not confer jurisdiction. It provides a process by which a party who wishes to change a final order can make that request to the court. It is simply wrong to suggest that it in any way limits a trial judge in the exercise of her discretion.

[39] The trial judge had jurisdiction to determine the best interests of the children in all parenting matters. After an 18-day trial dealing almost exclusively with parenting, the trial judge made findings of fact and determined the best interests of the children would be served by a joint custody arrangement with specified decision-making authority and specified time-sharing. She was in no way bound by an earlier order and a motion to change was not necessary.

[40] In any event, the order of Coats J. is no longer relevant. The counselling it referred to was in connection with the transition and conflict that the children had experienced. The children are no longer in transition. They have been in the regime set out by the trial judge for two years.

[41] I am also not convinced that the order is final. Despite the word “final” on the order, all matters of parenting remained outstanding and subject to trial – this is the hallmark of an interlocutory order.

(5) Costs

[42] Costs were awarded to the respondent by the trial judge. She found that there were many examples of the appellant acting unreasonably and with excessive caution, both before and during the trial. The respondent also made two offers to receive somewhat less than 50/50 access, both of which the appellant refused. Considering the appellant’s conduct and that the respondent was more successful at trial than in either of his offers to settle, the respondent was entitled to substantial indemnity costs.

[43] The appellant seeks leave to appeal the trial judge’s costs order. She submits that it is inappropriate to order costs in parenting cases when the parties have acted in good faith.

[44] While the trial judge did not find bad faith, she did articulate multiple examples of the appellant’s unreasonable conduct which unnecessarily drew out and complicated the proceedings and increased the litigious nature of the proceedings. In arriving at her conclusion, she applied the guidance of r. 24 of the Family Law Rules.

[45] Except to comment that the words “substantial indemnity” and “full indemnity” do not apply to r. 24, I see no basis to interfere with her discretion in awarding costs to the respondent or with respect to her overall assessment of the quantum.

(6) Fresh Evidence

[46] The mother appealed the trial decision which was dated June 19, 2019. After multiple delays, she perfected the appeal which was heard nearly two years later on April 19, 2021.

[47] One week before the appeal was heard, the appellant filed a motion to submit fresh evidence on the appeal.

[48] Where children are involved, there is generally more flexibility with respect to the admission of fresh evidence. However, the evidence submitted here does not assist a determination of the issues. It is in the form of an affidavit sworn by the appellant which argues why the trial judgment is wrong. In effect, it reflects a continuation of the conduct that led the trial judge to make a finding of unreasonableness.

[49] I would not admit the fresh evidence.