COURT FILE NO.: FS-23-71-00 DATE: 2024-08-08

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

L. A-M. B. Appellant

- and -

P. D. M. M. Respondent

Counsel: Julie Hannaford & Angela Pagano, for the Appellant (Respondent in the Application) Shawn M. Philbert, for the Respondent (Applicant in the Application)

Heard: May 15, 2024

APPEAL RULING Justice Thomas A. Bielby

INTRODUCTION AND THE ORDER

[1] The Appellant appeals the family law decision (the Ruling) of Justice Peter Jeffrey Wright, dated June 26, 2023 (released June 30, 2023).

[2] In accordance with the decision of Wright J., the Appellant (Respondent at trial) shall be identified as L and the Respondent on the appeal (Applicant at trial), as P. The child will be identified as C.

[3] The trial commenced on August 10, 2021, was completed on July 19, 2022, and was heard over 25 non-consecutive days.

[4] The parties are the parents of one child, C, born May 7, 2011. The issues before the trial court were in regard to what are now referred to as parenting time and decision-making. It was determined by Wright J. that the L was guilty of alienating behaviour and his ruling implemented a “custody reversal”.

[5] The Parties were married in September 2008 and separated in September 2013. Since separation C has had her primary residence with L.

[6] Before the close of oral evidence, L requested that Justice Wright conduct a judicial interview of C to ascertain her views and preferences. Justice Wright, on December 2, 2021, denied the request.

[7] Wright J. reserved his trial decision and on May 27, 2023, at a conference held to discuss the date and time for the release of the ruling, Wright J., for the first time, was advised of an ongoing police and CAS investigation. On June 6, 2022, P was charged with one count of sexual assault and one count of sexual interference on C. The abuse was alleged to have occurred well prior to the commencement of trial.

[8] Presumably as a term of her pre-trial release, pending the trial of the criminal matter, P was not to communicate directly or indirectly with C nor attend any place C was known to be.

[9] As a result of the investigation and criminal charges, L asked the court to re-open proceedings and allow further evidence and submissions, regarding the sexual abuse allegations. Wright J., on June 30, 2023, denied the request.

[10] Wright J. noted that during the trial there was not “one scintilla of evidence” of sexual misconduct. He was of the opinion that reopening the proceedings was both dangerous and unnecessary (para. 122).

[11] At the hearing of this appeal, the Court was advised that the criminal trial had concluded, and P was found, not guilty, of both charges.

[12] At trial, P argued that L was guilty of alienating behaviour and that such behaviour resulted in the alienation of the relationship between P and C.

[13] The L denied the allegation and argued that if there was any alienation, P was the cause.

[14] Wright J. concluded L was guilty of such alienating behaviour and noted that alienation can be described as a form of emotional abuse (A.M. v. C.H., 2019 ONCA 764). He accepted the proposition that a change of custody and a temporary suspension of parenting time with the alienating parent may be necessary in the long-term best interests of a child. Parental alienation is not in the best interests of children (A.M. v. C.H, para. 18).

THE LAW REGARDING APPEALS

[15] In regard to the approach to be taken on an appeal, in Alajajian v. Alajajian, 2021 ONCA 602, para. 4, it was said:

“The trial judge’s factual findings and credibility assessments are entitled to substantial deference. This is so in family law cases. This court can interfere “only where the fact-related aspects of the judge’s decision in a family law case exceeds the generous ambit within which reasonable disagreement is possible and plainly wrong.”

[16] From para. 13 of Van de Perre v. Edwards, 2001 SCC 60, para. 13, I quote,

“An appellant 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 of 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 enable a balanced evaluation of the best interests of the child and permits the court to respond to the spectrum of factors that can both positively and negatively affect a child.”

[17] As long as the reasons of the trial judge demonstrate why he arrived at his conclusion, the Court will not interfere (D.M. Drugs (Harris Guardian Drugs) v. Bywater, 2013 ONCA 356, para. 37).

[18] A trial judge, after making findings of alienation, has a number of options available, including an option of ordering a custody reversal (W.C. v. C.E., 2018 ONSC 3575, para. 129).

[19] In Housen v. Nikolaise, 2022 SCC 23 at paras. 8 and 10, the standard of proof on questions of law was said to be, correctness. On questions of fact or mixed questions of fact and law the test is that of a palpable and overriding error.

ARGUMENT

THE APPELLANT L

[20] At the hearing of this appeal, L argued the following grounds of relief:

1. The trial judge, Wright J. erred in not conducting a judicial interview of C to understand her preferences and wishes submitting that at the trial, there was no evidence of C’s views and preferences.
2. Wright J. erred because he did not provide any reasons why a custody reversal was in the best interest of C;
3. Wright J. erred by not re-opening the trial to hear further evidence and submissions in regard to the allegations that the Respondent sexually abused C;
4. Wright J. demonstrated considerable bias;
5. Wright J. erred in not conducting a proper creditability analysis and did not say why he preferred the Respondent’s evidence over that of the Appellant; and
6. Wright J. erred by not setting out the reasons he made a reverse custody order.
7. Wright J. erred by making an incomprehensible order.

THE RESPONDENT P

[21] P submitted that Wright J., keeping in mind the entitlement of deference, did not err in dismissing the motion to reopen the evidence and submissions. It was argued that Wright J. provided reasons for his rulings. The allegations of sexual abuse were alleged to have occurred well prior to trial but were not disclosed until the evidence had been heard and submissions made, at a time well after the matter had been reserved and shortly prior to the release of the Ruling. It was submitted that the request to re-open the matter failed the Palmer test and that the timing of the motion was more than a coincidence.

[22] It was submitted that Wright J. ‘s Ruling does not give rise to an apprehension of bias.

[23] Wright J. did not err in declining to interview C. The decision to do so is entirely discretionary. Further, C’s preferences were referenced in the professional evidence and were well known. The basis of the alienation claim was C’s preferences.

[24] Wright J.’s ruling is not incomprehensible.

ANALYSIS

JUDICIAL INTERVIEW OF A CHILD

[25] In accordance with s. 64(1) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, a court shall, where possible, take into consideration the views and preferences of the child to the extent the child is able to express them. Section 64(2) authorizes the court to interview a child regarding his or her views and preferences.

[26] It is conceded that a decision to interview a child is purely discretionary.

[27] Wright J., on December 2, 2021, after receiving written submissions, dismissed the request of L that he conduct a judicial interview of C.

[28] When before Wright J., L had submitted that C was then 10 years old and that there was no evidence of her (parenting time) views preferences. Notwithstanding the discretionary nature of conducting a judicial interview of the child, L now submits that Wright J. erred in not conducting a judicial interview of C and for not ordering a Voice of the Child report.

[29] On this point I agree with counsel for P. I find there was no error on the part of Wright J., given the discretionary nature of the procedure and the fact that there was sufficient evidence before the court evidence regarding C’s wishes and preferences.

[30] As said in, Medjuck v. Medjuck, 2019 ONCA 325, para. 25,

“Custody and access are perhaps the most fundamental issues upon which the views and preferences of a child should be ascertained.”

[31] However, that does not mean a judicial interview is required. In Uldrian v. Uldrian, it was said,

“In our opinion ss. 24 and 65 of the Children’s Law Reform Act do not impose a duty on a trial judge to interview the child. This is a matter for his discretion. The statute does not obligate the trial judge to consider the views and preferences of the child in this case [1986] W.D.F. L 1748. There was amble evidence of such views and preferences. Although the trial judge did not specifically refer to the evidence, we agree with counsel for the Official Guardian that he did consider it. This being so, the District Court Judge should not have set aside the award of custody of the Provincial Judge.”

[32] A court must decide on a case by case basis, using a flexible approach, whether such an interview would be in the in the best interests of the particular child in issue (L.E.G. v. A.G., 2015 BCSC 1455, para. 41).

[33] The issue before Wright J. was not what C’s views and preferences were but whether her views and preferences were the result of parental alienation.

[34] Wright J. noted that it was the role of the OCL to make every effort to place the views and preferences of a child before the court. The evidence before Wright J. included an OCL report and the viva voce evidence of the author of the report. While the OCL did not recommend a custody reversal, equal parenting time was recommended.

[35] Wright J. had regard to all of the professional evidence including that of Andrea Barclay who considered C’s expressed preferences. She noted that, over time, L’s and C’s views became similar which, in her opinion, was an indicator of alienation.

APPLICATION TO ADMIT FRESH EVIDENCE REGARDING SEXUAL ABUSE

[36] L alleges that Wright J. erred in not reopening the trial for fresh evidence and submissions and for not staying the release of his ruling until the criminal matters were concluded.

[37] As noted in R. v. Palmer, [1980] 1 S.C.R. 759, para. 22, the following requirements need to be met in order to admit fresh evidence;

1. The evidence should not be admitted if by due diligence it could have been adduced at trial;
2. The evidence must be relevant in the sense that it bears upon a decision or potentially decisive issue in the trial;
3. It must be credible, in the sense it is reasonably capable of belief; and
4. It must be such that if believed it could reasonably, when taken by the other evidence adduced at trial, be expected to have affected the result (See also, H.E. v. M.M., 2015 ONCA 813).

[38] In Sengmueller v. Sengmueller, para. 9, the Ontario Court of Appeal set out the test for allowing fresh evidence:

1. The tendered evidence is credible;
2. It could not have been obtained, by the exercise of due diligence, prior to that; and
3. The evidence, if admitted, will likely be conclusive of an issue in the appeal.

[39] In Ojeikere v. Ojeikere, 2018 ONCA 372, para. 47, the Ontario Court of Appeal expressed an opinion that there is no material difference, between the Palmer test and the Sengmueller test, although the latter approach may be more demanding Further, the tests are applied with more flexibly in custody cases.

[40] In Barendregt v. Grebliunas, 2022 SCC 22, para. 3, it was said that appellate courts must apply the Palmer criteria to determine whether finality and order in the administration of justice must yield in service of a just outcome. The overarching consideration is the interests of justice regardless of when the evidence or fact, came into existence.

[41] I am of the opinion that the circumstances surrounding the disclosure of the allegations of sexual abuse, failed two of the Palmer steps; credibility and due diligence.

[42] In this matter, the alleged incidents of sexual misconduct were said to have occurred between January 1, 2017, and March 25, 2018. However, evidence regarding the alleged abuse was not adduced at trial; a trial that took 25 non-consecutive days to complete and extended over a number of months.

[43] The alleged abuse was not reported to the police until June 2023. Charges were laid on June 6, 2023, months after the trial was completed and the decision was under reserve.

[44] Wright J. noted there was not one scintilla of such evidence at the trial.

[45] I agree with counsel for P that the timing of the disclosure of these allegations is suspect and can be said to challenge the credibility of the allegations.

[46] Regarding due diligence, I am not aware of any reason why the alleged sexual abuse could not have disclosed prior to the completion of the trial, through the exercise of due diligence.

[47] I find that Wright J. did not err in declining to re-open the trial to receive further evidence and additional submissions.

JUDICIAL BIAS

[48] L submits that the Ruling of Wright J. gives rise to an Apprehension of Bias. It is submitted that the application to re-open the evidence together with the passage of time and the length of the trial infuriated Wright J. and raised an apprehension of bias on his part.

[49] The appellant alleges that evidence of such bias can be found in Wright J’s Ruling, for example, by his use of such words and phrases as, “like a dagger thrust into the heart of this family”. It is argued that such wording illustrates a bias or a perceived bias against L and her collateral evidence.

[50] Counsel for P submits that there exists a strong presumption of a, lack of bias which has not been overcome and that the decision of Wright J. was grounded on the evidence before him.

[51] The test for reasonable bias is whether a reasonable and right-minded person, informed of all the circumstances, viewing the matter realistically and practically and having thought the matter through, would conclude it was more likely than not that the arbitrator consciously or unconsciously would decide fairly (R. v. S. (R.D.), [1997] 3 S.C.R. 484, (para. 31).

[52] In my opinion, this ground of the appeal must fail. A reasonable and like-minded person would not conclude such bias or apprehension of bias existed which then led to a lack of fairness. I would not doubt, that given the timing of the allegation of sexual misconduct on the part of P and the request to re-open, may have caused Wright J., some distress or frustration. However, the facts and circumstances of this case do not give rise to bias, or an apprehension of bias, and the test set out above has not been met.

FINDINGS OF BEST INTERESTS, ALIENATION AND THE EVIDENCE GENERALLY

[53] In my opinion there was sufficient evidence for Wright J. to make the ruling, based in part, on the following:

1. Wright J. reviewed the evidence in detail and found that P testified in an honest and forthcoming manner without embellishment. She was said to be clear in her answers and remained consistent.
2. Wright J. opined that C’s rejection of L was not justified or corroborated by collaterals and was not severe enough to cease parenting time altogether.
3. Wright J. acknowledged and considered the evidence of the OCL and the other professional witnesses and formed the opinion that more severe measures were necessary to repair the relationship of C and the Respondent
4. There was evidence that confirmed C was open to reunification therapy, which presumably would be in the best interests of C. Such therapy was not supported by L.
5. The professional evidence was such that it allowed Wright J. to conclude that alienation was apparent and resulted in the L’s and C.’s views becoming similar, as said an indicator of alienation.

[54] On the evidence, Wright J. concluded that L had engaged in a consistent and long-term pattern of conduct that alienated C from P. Wright J. opined that to maintain the status quo would be an error and exercised the available judicial option of reversing custody.

[55] As noted previously, Wright J.’s findings of fact and credibility are to be given substantial deference. On all of the evidence, Wright J. did not err in his credibility analysis.

[56] L submitted that Wright J. did not give reasons why a custody reversal is in the best interest of C. With respect, I disagree.

[57] Wright J. had before him the professional evidence regarding C.’s best interests and the impact thereon of L’s alienation. For example, Mr. Kaval of the Accednus Group, was of the opinion that L did not support parenting time between C. and P and did not feel such parenting time, or lack thereof was in C.’s best interest).

[58] At para. 129 of his reasons Wright J. wrote,

“The most important person in this case is child C. She has two parents but is hurting badly by the conflict between them. That must stop. The order I am making stand the best chance of success for this to happen. In determining the best interests of the child’s physical, emotional and psychological safety and well-being. Finally, I have taken into account sections 24(3) through (6) of the CLRA.”

[59] Wright J., as noted above, had regard to the report of Andrea Barclay in which it was said that the Appellant was unable to set boundaries, unable to follow court orders, unable to manage anxiety, unable to provide consistency, unable to hear concerns from professional and unable to reflect on her actions despite advice of counsel.

[60] In the end, Wright J. concluded, on the evidence, that L had engaged in a consistent and long-term pattern of conduct that had alienated C from the P. He concluded that a more intensive intervention was required, in the form of a custody reversal. He accepted that in some instances, it is in the long-term best interest of a child to make a change in custody and order a temporary suspension of contact between a child and the alienating parent (paras. 109. 110. 111 and 112).

[61] As was said in the D.M. Drugs case, at paras 36-37,

“The duty to give reasons should be given a functional and purposeful interpretation. If the reasons explain the basis for the decision reached and why the judge arrived at his or her conclusions, they will be sufficient.

[62] On reviewing Wright J.’s reasons as a whole, I find that his reasons and review of the evidence, demonstrate why and how he reached his conclusions.

[63] I find that Wright J. explained the basis for his decisions and why an order of custody reversal was in C.’s best interests. He made no error in law, nor any palpable and overriding error on the facts.

INCOMPREHENSIBILITY OF THE RULING

[64] Counsel for L submits that the parties and C have a right to receive comprehensible and reasoned decisions and submits that portions of the Ruling are incompressible and unsupported. Further, within the Ruling, there is a gap period in Wright J.’s parenting plan.

[65] In R. v. Sheppard, 2002 SCC 26, para. 55, it was said that the delivery of reasoned decisions is inherent in the judge’s role and is part of his or her accountability for the discharge of the responsibilities of the office.

[66] It is submitted that Wright J. failed to give reasons for making the decision he did, as he is obligated to do (Bruno v. Dacosta, 2020 ONCA 62, para. 15).

[67] It is further argued that Wright J. failed to make a logical connection between the verdict and the basis for the verdict resulting in confounded parenting ruling.

[68] Counsel for P in his material, made reference to the decision in, Spar Roofing & Metal Supplies Limited v. Glynn, 2016 ONCA 700, paras. 23-26, where it was said,

“While the reasons are not easy to understand, reading them as a whole and giving them a functional and purpose interpretation, they explain the basis for the motion judge’s decision to strike the pleading, why he refused to grant an adjournment to file a reply and how he arrived as his conclusion.”

[69] Counsel for P submitted that, but for the action’s of the Appellant L, the order would have been functional.

[70] I have already ruled that Wright J’s reasons for his Ruling are apparent on the evidence and within his ruling. Wright J. made a logical connection between finding of alienation and basis for the verdict. I find that the ruling was, for the most part functional, certainly functional at the time the ruling was released. The ruling also had a purpose – to overcome the harm created by the parental alienations on the part of L.

[71] However, the Court needs to address one issue regarding the parenting plan imposed by the trial judge.

[72] At paragraph 7, Wright J. imposed a reverse custody ruling, the for the period of June 30, 2023, at 6:00 pm to September 1, 2023.

[73] At paragraph 8, for the summer or 2024, a week - about parenting plan was put in place, to start on July 4, 2024, and end September 5, 2024.

[74] As of September 5, 2024, P was to have alternate weekend parenting time (para. 9).

[75] What is apparent however, is that Wright J. failed to provide a parenting plan for the period commencing September 1, 2023, and ending on July 4, 2024.

[76] Nevertheless, I have concluded that the appeal fails on this ground. The history of this file contains numerous judicial endorsements and orders. On March 6, 2021, Martin J. made an interim endorsement which at para. 32 of her endorsement, set specific dates on which P would have parenting time with C, for the period of April 18, 2021, to August 15, 2021. Thereafter, commencing August 27, 2021, P was to have parenting time with C, on alternate weekends.

[77] Further, the parties entered into a separation agreement, dated March 2, 2016, in which P was to exercise parenting time on alternate weekends.

[78] It could be argued therefore, that for the gap period, parenting time would revert to what was already in place - alternate weekends.

[79] However, and more importantly, because of the time it took to perfect and hear the appeal, the issue has become moot; the gap period in issue has already expired.

RULING

[80] This appeal is dismissed.

COSTS

[81] Following the release of this ruling, if the parties cannot agree on costs, they can make written submissions. The party claiming costs has 21 days following the release of this endorsement to deliver a claim of no more 4 pages in length, together with a cost outline.

[82] The party responding to such a claim has 15 days thereafter to deliver a response of no more than 4 pages in length together with a cost outline.

Bielby J. Released: August 08, 2024