DATE: 20020418 DOCKET: C34127
COURT OF APPEAL FOR ONTARIO
McMURTRY C.J.O., CHARRON and MOLDAVER JJ.A.
B E T W E E N :
RAOUL SODHI
Jeffrey Langevin, for the appellant
Appellant
(Respondent in cross-appeal)
- and -
CAROLINE SODHI
Philip M. Epstein, for the respondent
Respondent
(Appellant in cross-appeal)
Heard: February 20, 2002
On appeal from the judgment of Charbonneau J. dated February 4, 2000 and March 24, 2000.
CHARRON J.A.:
[1] The parties are the parents of two children, Shane born on August 7, 1994 and Mariah born on February 7, 1996. I will refer to the parties as the mother and the father throughout these reasons. The parties’ short marriage was quite turbulent, almost from the start. They have been involved in acrimonious and protracted litigation since their final separation in May 1998. Following a trial, Charbonneau J., in reasons delivered on February 4, 2000 and March 24, 2000, adjudicated on issues of custody, access, child support, spousal support, equalization of net family property and costs. The appellant Raoul Sodhi appealed the judgment on all those issues; the respondent Caroline Sodhi cross-appealed from that part of the judgment that required her, in order to retain custody of her children, to move to Ottawa from her present residence in Stoney Creek.
[2] The proceedings in relation to the property and cost issues were subsequently stayed as a result of the respondent’s assignment in bankruptcy on January 25, 2001. The appellant did not obtain an order to continue the proceedings on the property and cost issues and the appeal did not proceed on those issues.
[3] No oral argument was advanced at the hearing of the appeal on the question of the arrears of child and spousal support. However, the argument of the parties is set out in their respective facta and the matter can be disposed of summarily. The appellant submits that the trial judge misapprehended the evidence and made other errors in the calculation of the reduction of support arrears. Although the exact basis for the trial judge’s calculation is not easily ascertainable on the record, I agree with the respondent’s submission that the reduction allowed by the trial judge was reasonable and commensurate with the appellant’s reduction in salary during the relevant period of time. Further, the trial judge’s decision on whether to allow for any reduction of the support arrears was discretionary and I am not persuaded that there was any error in the exercise of his discretion.
[4] Consequently, the sole remaining issues on the appeal and cross-appeal are custody and access, with custody as the sole live issue for determination by this court.
[5] The trial judge awarded custody of the children to the mother, with generous access to the father and the paternal grandparents, provided that the mother move back to Ottawa with the children, on or before September 1, 2000. In the event that the mother failed to move back to Ottawa, the trial judge awarded custody to the father, with similar generous access to the mother. By order dated August 3, 2000, Goudge J.A. granted a partial stay of the judgment pending the disposition of this appeal. As a result of that order, the requirement that the mother move back to Ottawa, and the related default provision that awarded custody to the father, were stayed.
[6] The father appeals from the award of custody to the mother and submits that he should be awarded sole custody of the children, regardless of whether the mother moves back to Ottawa or not. By her cross-appeal, the mother seeks a variation of the judgment by removing the condition that she set up residence with the children in Ottawa.
[7] At the conclusion of a difficult three-week trial, the trial judge made a number of findings of fact. In my view, the most significant finding and, perhaps the only one that is encouraging in this case, is that “both [parents] have much to offer the children.” This finding is particularly noteworthy given the unrelenting character attack mounted by each party against the other during the course of this litigation. The trial judge described the process that unfolded before him in these words:
As a result of both parties’ lack of insight and self-centered attitude, this trial became three weeks where each one tried to show what an evil person the other one was. The trial was about tactics, non-disclosure, secret taping, surveillance, videotaping of visits and trying to manipulate witnesses to support their position. This trial was not about establishing the best parenting plan. Never did this trial focus on the real issue; namely, the best interests of the children.
[8] The numerous pre-trial proceedings, to the extent that their conduct is apparent from the written record, also reflect negatively on the parties’ respective attitudes and their lack of insight into the only issue in this case, the best interests of their children.
[9] Given this ongoing acrimony, it is almost surprising that the children, at least so far, appear to have come out relatively unscathed. As impossible as it appears to be for each party to discern it in the other, it becomes apparent from the record that this relatively fortunate state of affairs is due, not only to the resilience that is not uncommonly seen in many children, but, without a doubt, to the exercise of good parenting skills by each parent, at least when they are away from each other.
[10] In view of the fact that each party is a good parent who has a lot to offer to the children, the trial judge held that “the ideal scenario would be joint custody.” He held, however, that this result was not possible for two reasons: the father’s attitude towards alcohol, and the mother’s move with the children to another city. As I will explain, these two reasons in turn drove the result on custody.
[11] I will review firstly the trial judge’s findings with respect to the father’s consumption of alcohol. The evidence at trial was overwhelming that the father has a long standing problem with substance abuse, mainly alcohol. This problem was more acute during the parties’ brief cohabitation but it continued following separation. Despite the recommendations of professionals and court-imposed conditions that he stop drinking, the father remained adamant throughout that he would continue to consume alcohol. In this regard, the trial judge held that the father acted recklessly, that he had no insight whatsoever on the detrimental effect that his drinking had on his ability to communicate with the mother, and, in taking this attitude, that he did not have his children’s best interests at heart.
[12] The trial judge agreed with the Director of the Family Court Clinic, Dr. David A. McLean, who stated in a report dated December 1998 that if the father did not give up alcohol, “I could see little option to his being relegated to the role of access father.” However, despite the trial judge’s express concern over the father’s continued drinking, he was nonetheless satisfied that the problem, which was most acute in 1996-97 and for which the father was receiving treatment, was largely the result of his marital difficulties and that “at this time, it is not an impediment to the father’s ability to take proper care of the children while he has them in his care.”
[13] I will review next the trial judge’s findings concerning the mother’s move from Ottawa in early February 1999. The mother, who had interim custody of the children at the time, unilaterally and without notice to the father decided to move with the children to Stoney Creek, about a six-hour drive from Ottawa. Shortly after, the father brought a motion seeking an order for the return of the children to Ottawa. This motion was dismissed by order of McKinnon J. dated March 22, 1999. The motions judge held that while his initial reaction was to order the mother to return the children to Ottawa, given the intense bad blood between the parties, he decided against it. Rather, he continued the order of interim custody to the mother and set out regular access rights for the father and certain terms for the effective implementation of the order.
[14] The trial judge found that the mother’s move, although in part provoked by the father’s attitude, was unwarranted and against the children’s best interests. He held that while the mother may have had reason to fear for her safety during actual cohabitation, her continued fear following the separation was not grounded on objective facts. He held that she had exaggerated some of her allegations in order to win a supervised access order and that her position on the issue of access was untenable. Her move to Stoney Creek occurred shortly after the father had successfully obtained a court order granting him a period of unsupervised access to the children over the Christmas holidays. The trial judge held that what was obviously of concern to the mother at the time was Dr. McLean’s Family Court Clinic report supporting joint custody within a relatively short period of time if the father abstained from alcohol. The trial judge agreed with the conclusion in Dr. McLean’s report with respect to the mother’s attitude to access and stated that “given the opportunity, there is a risk that the mother will alienate or substantially reduce the father’s presence from the children’s life, to the detriment of the children’s best interests.” The trial judge further held that the mother “could easily be reassigned in the Ottawa area, should she decide to ask for a transfer.”
[15] It is based on those findings that the trial judge concluded that the “best essential conditions” that would meet the best interests of the children would be to grant custody to the mother provided that she return to Ottawa, failing which custody would be granted to the father.
[16] In my view, the trial judge’s finding that the best interests of the children could best be met by awarding custody to the mother is well supported by the evidence and should not be disturbed. I see no merit to the father’s contention that the trial judge erred by failing to award him sole custody of the children and I would therefore dismiss his appeal.
[17] The remaining question then is whether the trial judge’s further order that custody to the mother be conditional upon her returning to Ottawa with the children was supported on the evidence. As stated by the trial judge, this condition was imposed with a view of maximizing the children’s contact with their father and paternal grandparents. This purpose was undoubtedly sound. However, the imposition of this condition and the consequent default order of custody to the father is difficult to support on the evidence. I say this for the following reasons.
[18] First, the condition would appear to have been based in large part on the trial judge’s conclusion that the mother could easily be reassigned in the Ottawa area if she asked for a transfer. This conclusion was not supported by any convincing evidence at trial and, as shown by the fresh evidence filed on appeal with the consent of both parties, has proven to be incorrect. The mother’s move to Ottawa would more likely cause her to lose her position with the federal government and, at least temporarily, to be unemployed. The consequent loss of support for the children would not be in their best interest.
[19] Second, and most importantly, the trial judge failed to consider the impact of uprooting the children from their present lives in Stoney Creek. By the conclusion of the trial, the children had been residing in Stoney Creek for a year. The evidence at trial indicated that they were well settled in a caring and nurturing environment both at home and at school. They had developed a very warm and close bond with their maternal grandparents, aunts, uncles and cousins, all of whom lived within close proximity. They also enjoyed regular access with their father with no reported problems. Perhaps, indeed as commented by the motions judge in March 1999, the distance between the parties had effectively curtailed the intense bad blood that existed between them when they lived in the same city. Hence, the impact that a forced move back to Ottawa would have on the parties’ ongoing relationship and the consequent effect on the children was a further matter that required some consideration.
[20] Finally, it was also incumbent upon the trial judge to consider the effect of the default custodial order awarding custody to the father in the event that the mother did not move to Ottawa. On its face, this latter order appeared inconsistent with the trial judge’s conclusion that it was in the best interests of the children that they remain in the custody of their mother.
[21] In my view, it is not at all clear on the record that the condition requiring the mother to return to Ottawa, and the consequent default order awarding sole custody to the father, were in the children’s best interest at the time they were made. In the absence of reasons from the trial judge on this point, I would conclude that they were not in the children’s best interests. The passage of time since the trial provides further support for the view that those orders should not be upheld. I note that the father can hardly argue that his position has been unfairly prejudiced by this passage of time since much of the delay since the trial has been occasioned by his lack of diligence in perfecting his appeal. The children have now been in Stoney Creek for over three years. It would appear that the children continue to do well and that there have been no problems with ongoing access to the father.
[22] In these circumstances, it is my view that the cross-appeal should be allowed. I would confirm the trial judge’s order that custody be awarded to the mother but delete both the condition that she return to Ottawa and the default custody order to the father.
[23] I would award the mother her costs of the appeal and the cross-appeal. In order to comply with the requirement that this court fix costs, the mother is required to serve and file her bill of costs within 15 days together with written submissions, if any. The father may respond in writing within 10 days thereafter
RELEASED: April 18, 2002
“Louise Charron J.A.”
“I agree McMurtry C.J.O.”
“I agree Moldaver J.A.”