Court File and Parties
Court File No.: 3357/17 Date: 2020 04 14
Ontario Superior Court of Justice
Between:
MARTIN GEGUS Self-Represented Appellant (Respondent)
- and -
JULIE ANNE BILODEAU M. Schulz, for the Defendants, Plaintiff by Counterclaim Respondent (Applicant)
Heard: October 23, 2019
Reasons for Judgment
Fowler Byrne J.
[1] Mr. Gegus, the Appellant Father, appeals the Order of Kurz J., of the Ontario Court of Justice, dated July 21, 2017. The particular provisions of the order that are appealed are as follows:
- The Applicant, Julie Anne Bilodeau, shall have the exclusive right to consent to the prescribing of ADHD medication to Luke Patrick Bilodeau Gegus, born November 20, 2003, which shall be in consultation with his treating physician.
- The Applicant, Julie Anne Bilodeau, will have the exclusive right to choose Luke Patrick Bilodeau Gegus’ ADHD treatment provider.
- The Respondent, Martin Gegus, will have the right to consult with the Applicant and Luke’s treatment providers about ADHD treatment, but he shall not do so in the presence of the child.
- The Respondent, Martin Gegus, shall neither discuss ADHD medication with Luke nor shall he attempt to dissuade Luke from its use. He shall also ensure that any partner, friend or relative of his abide by this term as well.
- The Respondent, Martin Gegus, will not interfere with the prescribing of ADHD medication for Luke. He shall fully cooperate with its administration when Luke is in his care.
[2] The Appellant Father alleges that the motions judge made several mistakes of fact and law. They are as follows:
a) Errors of Fact:
- The motions judge found that the Respondent Mother wanted to give the child an opportunity to be treated with ADHD medication under the supervision of a pediatrician;
- The motions judge found that the child’s pediatrician favoured a trial of ADHD medication;
- The motions judge found that science supports medication as the single most effective form of intervention for children with ADHD;
- The motions judge found that the Appellant Father is not open to working jointly with the Respondent Mother on a treatment strategy;
- The motions judge found that the Appellant Father tried to unilaterally influence Dr. Fiorini to change her mind on her recommendations for treatment of the child;
- The motions judge found that the Appellant Father arrogated his right to convince the child to join him against his mother in a parental dispute and that he recruited a like-minded ally;
- The motions judge found that pursuant to the final order of O’Connell J., the parties were only allowed to communicate by e-mail, unless in a situation of urgency; and
- The motions judge found that the father did not deny the position of the mother that he preferred naturopathy to traditional medicine and wanted to rely on dietary matters (this was not raised in the Notice of Appeal but rather in the Appellant’s Factum);
b) Errors of Law: 9) The motions judge mischaracterized the legal issues to be determined on the motion; 10) The motions judge allowed the motion to proceed despite short service and without giving him sufficient time to prepare and gather expert evidence; 11) The motions judge failed to consider the views and preferences of the child in accordance with s. 24(2) (b) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12; 12) The motions judge failed to consider the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A, and improperly only applied the Children’s Laws Reform Act; 13) The motions judge improperly relied on the evidence of the children’s treating medical practitioners and failed to rely on evidence advanced by the Appellant Father obtained from the internet; 14) The motions judge unreasonably exercised his judicial discretion;
[3] An appeal is not an opportunity to reargue a motion or trial. The decision of the original motions judge or trier of fact remains unless the appellant can show an error of law or fact was committed.
[4] When considering potential errors of law, the standard of review is one of the correctness. Where an error of law is found, the appellate court is free to replace the opinion of the trial judge with its own: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para 8.
[5] When considering potential errors of fact, the standard of review is that an appeal will not be granted unless it can be established that the trial judge made a palpable and overriding error. Absent such a finding, deference is given to the trier of fact who was able to observe witnesses and hear the evidence first hand: Housen, at para. 10.
[6] A palpable and overriding error is where a finding of fact is clearly wrong, unreasonable or unsupported by the evidence and the error affected the result of the motion or trial. This applies whether there is direct proof of the fact in issue or indirect proof of facts from which the fact in issue has been inferred: H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401, at paras. 53-56.
[7] Matters of mixed fact and law lie along a spectrum. If there is an extricable legal principle, then that legal question will be reviewed on a correctness basis. Otherwise, if there is no extricable legal error, the standard of palpable and overriding error applies: Housen, at para. 36.
[8] Trial judges are entitled to considerable deference when their decisions are reviewed. This promotes finality in family law matters and recognizes the importance of the appreciation of facts by a trial judge. While an appeal court must intervene when there is a material error, a serious misapprehension of the evidence, or an error of law, it is not entitled to overturn a support order simply because it would have made a different decision or balanced the factors differently: Hickey v. Hickey, [1999] 2 S.C.R. 518, at paras. 10, 12. This principle is equally applicable to orders concerning child custody: Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014, at para. 12.
Analysis
Issue 1: Giving the Child the Option of Treatment by Medication
[9] The Appellant Father claims the motions judge made an error in fact by finding that the Respondent Mother wanted to give the child an opportunity to be treated with ADHD medication under the supervision of a pediatrician. The Appellant Father claims that the mother was really seeking drug-based treatment options to the exclusion of non-drug-based treatments, against the child's wishes.
[10] The motion judge’s finding of fact is clearly supported by the evidentiary record. At the start of the original motion, one of the Respondent Mother’s first submissions was that she was not seeking an order requiring the child to take medication but rather wanted it to be an available treatment option and for the Appellant Father not intervene if the child decides to try it. The mother is not ruling out non-pharmaceutical options but asking that medication be considered. This was repeated on several occasions.
[11] There is no palpable and overriding error of fact with regard to this finding. This ground of appeal is without basis and is dismissed.
Issue 2: Pediatrician’s Preference for Medication
[12] The Appellant Father argued that the motions judge made an error of fact when he found that the child’s pediatrician, Dr. Fiorini, favoured a trial of ADHD medication.
[13] This finding of fact is supported by the evidence. The motions judge reviewed both letters from the pediatrician. In Dr. Fiorini’s first letter, she stated,
“Current recommendations for the treatment of ADHD, as outlined by the APP (American Academy of Pediatrics), includes medications and behaviour modification therapy. Studies indicate that medication management alone is a stronger intervention than behavioural treatment alone and combination therapy with both medication and behaviour therapy does not demonstrate significantly greater benefits than medication alone.
[14] She then followed that “…recommendations for Luke include a trial of medication in an effort to increase his attention…. In addition, Luke will benefit from continued support at home with a consistent and structured environment”.
[15] In Dr. Fiorini’s second letter, she reiterated that she outlined the AAP recommendations but then maintained she did not offer an opinion. She saw her role as being to provide current recommendations and then allow the parents to decide.
[16] It is clear that initially Dr. Fiorini did recommend a course of medication. In her second letter, she seemed to want to remove herself from the conflict and confirm that a course of medication was the recommendation of the AAP, which she had a duty to present to the parents.
[17] The motions judge inferred the doctor’s position on medication, which was not clearly wrong and was supported by the evidence. There is no palpable and overriding error and this ground of appeal is dismissed.
Issue 3: Medication as the Single Most Effective Intervention
[18] The Appellant Father maintains that the motions judge’s finding of fact that science supports medication as the single most effective form of intervention for children with ADHD was a palpable and overriding error.
[19] This is a mischaracterization of the finding made. When this statement was made, it was in reference to his review of the evidence presented by the Respondent Mother:
The psychologist who diagnosed Luke has stated that medical treatment, that is medication, is usually necessary to enable students with ADHD to succeed in high school and university. Luke’s pediatrician has stated that both the recommendations of the American Academy of Pediatrics and the science points to medication as the single most effective form of intervention for children with ADHD. (emphasis mine).
[20] The motions judge later stated that on the evidence, he was satisfied that medication was the best form of treatment for the child, based on the findings of the two participant experts whose evidence was attached to the Respondent Mother’s affidavit.
[21] This is a fair and reasonable inference on the facts, supported by the evidence put before the motions judge. In any event, the real issue to be decided, which was correctly identified by the motions judge, is what to do if the two joint-custodial parents cannot agree on what form of treatment is in the child’s best interests. Whether medication was characterized as “the single most effective form of intervention” or the recommendation of the AAP, it does not impact the key issue the motions judge had to decide and the result reached.
[22] Accordingly, the motions judge made no palpable and overriding error on this point and this ground of appeal is dismissed.
Issues 4, 5, 6: Father’s Willingness to Work Jointly with Mother
[23] The Appellant Father claims that these three findings of fact constitute palpable and overriding errors.
[24] Again, I disagree. The motions judge took great pains to outline why he made these findings of fact. He is entitled to draw inferences on the evidence before him. His characterization of the Appellant Father’s position vis-à-vis medication is a reasonable inference. His finding that the Appellant Father blames the Respondent Mother for the child’s academic struggles is part of the evidentiary record. Also, it is clear from the evidence that the Appellant Father saw Dr. Fiorini without the knowledge of the Respondent Mother, and then alleged a change in recommendation for the child’s treatment. This was not an accurate reflection of the Dr. Fiorini’s position, as clarified in her second letter confirming the recommendations of the AAP. The Appellant Father admits to showing the child internet articles that showed the negative effects of ADHD medication.
[25] Accordingly, these findings of fact are not palpable and overriding errors, and these grounds of appeal are dismissed.
Issue 7: Interpretation of O’Connell J. Order
[26] The Appellant Father maintains that the motions judge made a palpable and overriding error when he indicated that pursuant to the final Order reached in 2011, the parties were required to communicate by e-mail, unless in a situation of urgency.
[27] Paragraphs 15 to 17 of the final order of O’Connell J., dated September 29, 2011, state:
Parent to Parent Communications
- Communications can be via email if the matter is not urgent.
- Communications will be via telephone if the matter is urgent or requires a response within 24 hours. The parties will return each other’s phone calls within 24 hours.
- The Applicant and the Respondent shall not contact each other at his/her workplace except in the case of an emergency concerning the child.
[28] A clear reading of these provisions suggest that other modes of communication may be permissible. Even if the characterization of permissible communication was slightly askew, it is not a finding that would have in any way affected the final outcome of this motion. Therefore, it is not a palpable and overriding error and this ground of appeal is dismissed.
Issue 8: Father’s Preference for Naturopathy
[29] This alleged error of fact was not raised in the Notice of Appeal but gleaned from the Appellant Father’s factum. He maintains that the motions judge made an error in fact when he stated at para. 29:
The mother states that the father prefers naturopathy to traditional medicine and that he wishes to concentrate on dietary matters. The father does not deny this either.
[30] During his submissions, the Appellant Father clearly denied that he does not support traditional medicine. It is not clear on the evidentiary record whether such a preference is made out. Nonetheless, I do not find that any such finding is palpable and overriding. The motions judge made his decision based on what was in the child’s best interests and the parties’ inability to effectively communicate on the subject of ADHD treatment. The Appellant Father’s preference for non-pharmaceutical treatment of ADHD is well supported by the evidence. Whether or not he prefers naturopathy to traditional medicine in general is of no relevance to the final determination of this motion.
[31] This ground of appeal is dismissed.
Issue 9: Proper Identification of the Legal Issues
[32] The Appellant Father claims that the motions judge erred in that he improperly mischaracterized the issues to be decided. The Appellant Father characterized this as an error in fact, but I would characterize this ground of appeal more as an alleged error in law and will examine it accordingly.
[33] While it is true that the motions judge characterized as a key issue "whether [the child] will be dragged as an ally into a parental conflict between science and opinion", this statement followed a paragraph where the motions judge clearly identified the issues to be what was in the child’s best interests. The motion judge’s reasons are structured to answer this very question. The motions judge also considered this issue with a narrow focus on ADHD treatment. With the exception of decisions regarding the treatment of ADHD, the motions judge did not make any changes to the joint custodial and access regime.
[34] Accordingly, there was no error in law made by the motions judge in relation to the issues to be considered, and thus, this ground of appeal is dismissed.
Issue 10: Failure to Adjourn
[35] The Appellant Father argues that the motions judge’s decision to proceed with the motion, despite short service by the Respondent Mother and giving him insufficient time to gather evidence, was an error in fact. I would characterize this ground of appeal more as an alleged error in law and will examine it accordingly.
[36] A case conference was held on June 12, 2017. In his endorsement, the motions judge identified the issue of medication for ADHD as being a live issue and indicated that a motion was necessary. On that day, the motion was scheduled for July 14, 2017. A schedule was put in place to send a joint letter to Dr. Fiorini, the child’s pediatrician, to clarify her recommendations. Dr. Fiorini’s letter in response was dated July 8, 2017. The Respondent Mother served the Notice of Motion two days later – on July 10, 2017.
[37] When the Appellant Father was served, there is no evidence he asked for an adjournment. In fact, the next day he took the time to bring his own motion, also returnable on July 14, 2017. He sought an order that the Respondent Mother’s motion be dismissed and that the parties work collaboratively on determining the proper treatment of their child’s ADHD. Nowhere does he seek an adjournment, despite the short service. Also, from the transcript of the argued motion, the Appellant Father did not ask that the motion be adjourned. It would be reasonable to assume that no adjournment was sought at that time because the Appellant Father interpreted Dr. Fiorini’s second letter as supportive of his position and wanted to proceed.
[38] It is not an error of law (or even an error of fact for that matter) for a motions judge not to grant an adjournment when none was requested. This ground of appeal is dismissed.
Issue 11: Were the Views of the Child Considered?
[39] The Appellant Father claims the motions judge made an error in that he failed to consider the views and preferences of the child in accordance with s. 24(2) (b) of the Children’s Law Reform Act. He claims this is an error of fact, but I would characterize this ground of appeal more as an alleged error of mixed fact and law in which the judge applied the law incorrectly to the facts. I will examine this ground of appeal accordingly.
[40] The Appellant Father rightly points out that the views and preferences of the child are always a factor that should be considered when the court is making a decision with respect to custody and access. The views and preferences of the child can come from any number of sources including the evidence of trained professionals, the parties themselves, the testimony of the child or through a judicial interview: Stefureak v. Chambers, at para. 15.
[41] In the case before me, the Respondent Mother provided little evidence of the views of the child, except to say he is struggling in school. However the Appellant Father indicated in his affidavit that the child preferred not to be medicated. Accordingly, the views and preferences of the child were before the court. The court is required to consider those views and preferences as well as other factors in s. 24(2) such as s. 24(2) (d):
(d) the ability and willingness of each person applying for the custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child.
[42] The requirement of the motions judge to consider the views and preferences of the child does not mean that he or she has to follow those recommendations. While the age and maturity of the child will have a bearing on the weight to be attached to those views and preferences, it is only one factor to be considered in light of the relief sought.
[43] The Appellant Father claims that the failure of the court to appoint the Office of the Children’s Lawyer (“OCL”) to ascertain the child’s wishes constituted an error. I was unable to find any evidence that the Appellant Father sought the appointment of the OCL in any capacity in the case conference or the motions at issue. The OCL is not appointed automatically whenever a child is involved. It is ultimately up to the judge to decide if it is warranted, and then up to the OCL itself if it will even take the case.
[44] In the case before me, while the views and preferences of the child introduced through the parents’ affidavits was limited, it was sufficient for this motion because the child’s right to accept or refuse treatment was not being determined. The issue before the court is whether the Appellant Father could have a say in the child’s treatment. The motions judge eliminated the Appellant Father’s involvement in this limited issue because he determined that this would give the child the best opportunity to be educated on all modalities of treatment of ADHD and to be able to provide or withhold consent to medication without any undue pressure or influence. The full gamut of treatment options will now be available to the child.
[45] Accordingly, the motions judge having considered the views and preferences of the child appropriately, this ground of appeal is dismissed.
Issue 12: Impact of Health Care Consent Act, 1996
[46] The Appellant Father alleges that the motions judge erred in law in that he failed to consider the Health Care Consent Act, 1996 (“HCCA”) and improperly only applied the Children’s Laws Reform Act when making his decision. This is an important issue for the Appellant Father as he maintains that the child does not consent to the treatment of his ADHD by medication (Appellant’s Factum at para. 23). He fears the treatment will be forced upon the child in any event, despite very clear indications by the Mother that she would not force the child to do so. He relies on the HCCA and the Supreme Court of Canada case of A.C. v. Manitoba (Director of Child and Family Services), 2009 SCC 30, [2009] 2 S.C.R. 181, which speaks to a mature child’s right to have their views heard, in the context of a constitutional challenge to certain sections of the Manitoba Child and Family Services Act allowing the society to make decisions on behalf of a child under the age of 16.
[47] With respect, the Appellant Father has misconstrued the issue before the court. No party has asked that the child’s consent be dispensed with. It is only the dispensing of the Appellant Father’s consent that was requested because the Respondent Mother alleged it was interfering with the best interest of the child with respect to ADHD treatment.
[48] The HCCA requires the consent of a patient to any treatment. There are no age restrictions set forth in the Act. The sole determining factor is whether the party receiving the treatment consents to it. Section 4 states:
4 (1) A person is capable with respect to a treatment…if the person is able to understand the information that is relevant to making a decision about the treatment...and able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.
(2) A person is presumed to be capable with respect to treatment… .
[49] Section 10 goes on to state that a health practitioner cannot administer any treatment unless they believe their patient is capable of giving consent and that they consent to the treatment.
[50] Accordingly, if the health practitioner believes the child has the capacity to consent to his treatment, they will abide by the child’s wishes. If, on the other hand, the health practitioner determines the child is not capable of consenting, s. 20 outlines who may give consent on behalf of the child:
20(1) If a person is incapable with respect to a treatment, consent may be given or refused on his or her behalf by a person described in one of the following paragraphs:
- A …parent of the incapable person… . This paragraph does not include a parent who has only a right of access.
(2) A person described in subsection (1) may give or refuse consent only if he or she,
(c) is not prohibited by court order or separation agreement from.… giving or refusing consent on his or her behalf;
[51] Accordingly, it appears that the HCCA contemplates situations in which only one parent, by court order or separation agreement, has the authority to give consent on behalf of a child when the child is determined to be incapable. The determination of whether only one parent should have this authority is determined under the appropriate legislation, in this case, the Children’s Law Reform Act.
[52] Accordingly, nothing in the decision of the motions judge takes away the child’s primary right to accept or refuse treatment, if the health practitioner is satisfied that the child has the capacity to do so.
[53] I will concede that the current wording of paragraph 1 of the motions judge’s order may leave the necessity of the child’s consent somewhat vague and should be clarified. By saying this, my interpretation of this Order is not that the child’s consent was dispensed with – all aspects of the Appeal Record and the Reasons for Judgment point to the opposite conclusion. I must be cognisant though, that any third party considering treating the child for ADHD will only have this Order, and it is the Order that is appealed, not the reasons: Fanshaw College of Applied Arts and Technology v. AU Optronics Corp., 2016 ONCA 621, 132 O.R. (3d) 81, at para. 24. Accordingly, I exercise my authority under s. 134(1) (a) of the Courts of Justice Act, R.S.O. 1990, c. C.43, to make an appropriate order with respect to dispensing with the Appellant Father’s consent.
Issue 13: Medical Evidence Admitted
[54] The Appellant Father maintains that the motions judge made a number of evidentiary errors. In particular, he asserts that the motions judge relied on a letter from a psychologist recommending medication, while she was unable to prescribe medication herself in her area of expertise. He also believed that Dr. Fiorini withdrew her recommendation for medication, contrary to what the motions judge found. He also took exception that his internet articles were not accepted as evidence to be considered on the motion.
[55] I have already commented on whether Dr. Fiorini withdrew her recommendation of medication and will not review that area again. With respect to the psychologist Ms. Saunders, she urged that the diagnosis of ADHD be discussed with the child and the family physician. She indicated that “usually” medication treatment is necessary, but in no way recommended it or prescribed it. It was left to the family doctor. She also recommended better study habits and review, which is something the Appellant Father was in favour of. Ms. Saunders did not offer an opinion outside of her area of expertise.
[56] Medical evidence can be accepted as evidence generally in two ways: through treating health practitioners who had direct involvement with the parties or through experts who give opinion evidence.
[57] Dr. Fiorini and Ms. Saunders were two health practitioners who treated the child and consulted with his parents. They have direct and relevant evidence to provide in this matter.
[58] By contrast, none of the evidence proffered by the Appellant Father involved individuals who had direct knowledge of the matters at issue. He submitted articles and print-offs published by pharmaceutical companies as authoritative statements on medication side effects. He also submitted articles by orthopaedic surgeons about the effects of ADHD medications. At best, it is opinion evidence.
[59] The general rule of evidence is that opinion evidence is inadmissible unless the court is satisfied that it is relevant, necessary, unbiased and qualified, and not excluded by any other rule of evidence. Then, the court must consider whether the probative value of the evidence outweighs any prejudice against the other party or harm to the trial process: White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182, at paras. 22-24.
[60] Before expert opinion evidence can even be considered by the court, there are certain requirements that must be followed, as set out in r. 20.2 of the Family Law Rules, O. Reg. 114/99. This requires the expert to prepare a report that outlines their opinion and provide their qualifications, both of which must be served on the other party. Once these documents are received, the receiving party can decide whether it will object to its admissibility based on the above-noted rules of evidence. They also have the opportunity to hire their own experts who can review the opinion for the purposes of cross-examination and decide if they wish to submit a contrary opinion by another recognized expert. The Appellant Father followed none of these rules.
[61] These requirements are understandable. Anyone can print off anything from the internet. Even if the articles are from reputable sources and by reputable authors, their relevance and reliability are not made out by their mere existence. These surgeons or pharmaceutical companies have absolutely no knowledge of this child, his particular symptoms, his education challenges or his medical history and there is no way to question or cross-examine them on what is set out in their articles or papers. There is no way to test this opinion evidence. The relevance of this information to this case is not made out. It is simply one source of information that an expert, familiar with the child, may consult to determine a proper course of treatment. As the motions judge rightly pointed out to the Appellant Father during the argument of the motion, the Appellant Father is not an expert and can offer no opinion as to the gains of medication vis-à-vis potential side effects, using these articles as support.
[62] The Appellant Father also relies on s. 34.1 of the Evidence Act, R.S.O. 1990, c. E.23, and maintains that anything taken off the internet should be considered an “electronic record” and admissible under those rules. With respect, the Appellant Father misunderstands the purpose of this section. This section deals with evidence that is electronic in form, as opposed to being printed. Also, in his argument, the Appellant Father omits consideration of s. 34.1(2):
(2) This section does not modify any common law or statutory rule relating to the admissibility of records, except the rules relating to authentication and best evidence.
[63] The authenticity of these articles was not challenged. The “best evidence rule” states that the original document should be produced if available. Again, that is not at issue here. Most importantly, this subsection confirms that if the document is electronic in form, it does not in any way impact the common law, statutes or rules relating to admissibility. The evidence provided by the Appellant Father is not “electronic evidence” as contemplated by this section. None of the “medical” evidence the father proffered was admissible.
[64] Accordingly, this ground of appeal is dismissed.
Issue 14: Unreasonable Exercise of Judicial Discretion
[65] The Appellant Father alleges that the motions judge made an error in law when he unreasonably exercised his judicial discretion. In particular, the Appellant Father claims that the motions judge did not consider the child’s views and preference. Also, he alleges “prejudicial and unfounded characterizations of the Appellant” due to lack of objective and independent third-party observation.
[66] The issue of the child’s views and preferences has already been addressed. The other basis of this ground of appeal appears to be an allegation of bias on the part of the motions judge.
[67] In order to find that there was a reasonable apprehension of bias on the part of the motions judge, a reasonable and informed person viewing the matter realistically and practically would have to think it through and conclude that the judge, consciously or unconsciously, did not decide the matter fairly. It is an extremely high threshold to meet. There is a strong presumption in favour of the judge’s impartiality and the question of a reasonable apprehension of bias requires a highly fact-specific inquiry: Clayson-Martin v. Martin, 2015 ONCA 596, 127 O.R. (3d) 1, at paras. 68, 71. A trial judge’s willingness to debate with counsel openly over relevant factual and legal issues should not serve as a basis for a reasonable apprehension of bias. In the end, an appellate court should only intervene if satisfied that the trial judge’s interventions, considered in the context of the entire trial, created a reasonable apprehension that the trial judge was biased: Chippewas of Mnjikaning First Nation v. Ontario (Minister of Native Affairs), 2010 ONCA 47, 265 O.A.C. 247, leave to appeal refused, [2010] S.C.C.A. No. 91, at para. 243.
[68] I am not satisfied that the Appellant Father has established any reasonable apprehension of bias. The motions judge found that with respect to the treatment of the child’s ADHD, the parties were unable to work together and the Respondent Mother’s approach was in the child’s best interests. In a motion, usually one party prevails over the other. For the party that did not prevail, it does not automatically mean the judge was biased. It means that the judge was performing his or her role as an adjudicator of disputes.
Conclusion
[69] For the reasons set forth herein, I make the following orders:
a) Paragraph 1 of the final order of Kurz J. of July 21, 2017 is set aside and replaced with the following order:
- The Respondent Martin Gegus is prohibited from giving or withholding consent to the prescribing or administration of ADHD medication to Luke Patrick Bilodeau Gegus, born November 20, 2003, which prescribing or administration shall occur in consultation with his treating physician.
b) The appeal is otherwise dismissed;
c) The parties are encouraged to resolve the issue of costs themselves. If they are unable to do so, the Respondent Mother shall serve and file her written submissions, restricted to two pages, single sided and double-spaced, exclusive of costs outline and offers to settle, no later than 4:30 p.m. on May 1, 2020; the Appellant Father shall serve and file his responding submissions, with the same restrictions, no later than 4:30 p.m. on May 15, 2020; any reply submissions by the Respondent Mother, with the same size restrictions, shall be served and filed no later than 4:30 p.m. on May 22, 2020; if no submissions are received by May 1, 2020, there shall be no costs. All costs submissions shall be e-mailed to my judicial assistant at sara.stafford@ontario.ca.
Fowler Byrne J.
