DATE: 2006-05-25

DOCKET: C41629

COURT OF APPEAL FOR ONTARIO

RE: MAUREEN COYLE (Plaintiff/Mother (Respondent) – and – BRIAN DANYLKIW (Defendant/Father (Appellant)

BEFORE: McMurtry C.J.O, Rosenberg and Blair JJ.A.

COUNSEL: Rodica David Q.C. and Michael F. Charles for the appellant

Maureen Coyle In person

HEARD: May 18, 2006

On appeal from the judgment of Justice Susan E. Greer of the Superior Court of Justice dated March 9, 2004.

E N D O R S E M E N T

[1] The appellant father appeals from the judgment of Greer J. awarding the respondent mother sole custody of the child of the marriage and permitting the mother to move with the child out of Ontario. He also seeks leave to appeal the costs order. For the following reasons the appeal is allowed in part and paragraph 2 of the Judgment is struck out. In all other respects the appeal is dismissed.

[2] By the time of the appeal (over two years since the trial) the mother and child had returned to Toronto. Thus, the mobility issue was no longer a concern. Rather, the principal concern on this appeal is the trial judge’s order awarding the mother sole custody. The father submits that the mother has so consistently interfered with access to the child that the only way to vindicate the principle of maximum contact in s. 16(10) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) as amended is to give him sole custody. He submits that the trial judge failed to give adequate consideration to the maximum contact principle and made an unreasonable finding that the mother would facilitate access. He also submits that the trial judge unreasonably failed to give effect to the findings of the custody assessor, Linda Chodos.

[3] The trial judge’s decisions on both these issues primarily turned on her findings of fact and counsel recognized that those findings are entitled to deference and will only be set aside on the basis of a palpable and overriding error. In balancing the various factors in a child custody matter the decision of the trial judge is entitled to considerable deference. In Van de Perre v. Edwards (2001), 2001 SCC 60, 204 D.L.R. (4th) 257 (S.C.C.) at para. 11 Bastarache J. referred to the reasons of the court in Hickey v. Hickey, 1999 691 (SCC), [1999] 2 S.C.R. 518 at paras. 10 and 12:

[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.

There are strong reasons for the significant deference that must be given to trial judges in relation to support orders. This standard of appellate review recognizes that the discretion involved in making a support order is best exercised by the judge who has heard the parties directly. It avoids giving parties an incentive to appeal judgments and incur added expenses in the hope that the appeal court will have a different appreciation of the relevant factors and evidence. This approach promotes finality in family law litigation and recognizes the importance of the appreciation of the facts by the trial judge. Though an appeal court must intervene when there is a material error, a serious misapprehension of the evidence, or an error in law, it is not entitled to overturn a support order simply because it would have made a different decision or balanced the factors differently.

[4] Bastarache J. then observed at para. 12 that while Hickey was a support case, the same considerations apply to a child custody case. As he said, “The narrow power of appellate review does not allow an appellate court to delve into all custody cases in the name of the best interests of the child where there is no material error as decided in Hickey. The Court of Appeal is not in a position to determine what it considers to be the correct conclusions from the evidence. This is the role of the trial judge.”

[5] In her thorough and helpful submissions, Ms. David has shown several mistakes by the trial judge in her review of some of the facts. Those errors, however, do not demonstrate that the trial judge made any overriding error. In particular, with respect to the question of the application of s. 16(10), the trial judge is required to give effect to the principle that a child should have as much contact with each spouse “as is consistent with the best interests of the child”. The judge must for that purpose take into consideration the willingness of the person for whom custody is sought to facilitate contact. The trial judge was alive to all of these issues. She found that the mother would facilitate access with the father. The father challenges that finding. But, the trial judge accepted the evidence of the mother and her witnesses and that evidence provided a reasonable basis for that finding. There is no question that the father’s access became more limited after the July 2001 long weekend incident, but the mother’s concerns were reasonable given the father’s living arrangements at the time. We cannot say that the trial judge’s finding concerning the mother’s commitment to access for the father was unreasonable.

[6] There was also a body of evidence to support the trial judge’s conclusion that granting the father sole custody would not have been in the child’s best interests. The trial judge referred to a number of matters in addition to the July incident that suggested in her view that the father showed poor judgment and that some of his decisions were not in the child’s best interests. The father submits that many of the matters were minor and should not have been factors in the decision. However, the weight to attach to the various circumstances is a matter for the trial judge.

[7] The appellant submits that in the alternative the trial judge erred in failing to award joint custody. That was not feasible given the relationship between the parties and given the trial judge’s decision on mobility. The decision on mobility was amply supported by the evidence. The trial judge found that the move to Montreal would be in the best interests of the child despite the fact that it would mean a different and probably more limited access regime. The evidence from the wife, her then companion, and the members of his family supported the trial judge’s decision.

[8] With respect to the weight to be attached to the custody assessor’s evidence, in our view, there was no error by the trial judge. The weight to be attached to the evidence of any expert is a matter for the trier of fact. The trial judge did not simply dismiss the evidence out of hand. She gave detailed reasons for why she did not agree with the assessor’s conclusion and why she found it lacking in many respects. While the appellant submits that the trial judge misapprehended some of the evidence and gave unfair weight to some issues, we are satisfied that the conclusion was supported by the record. To take one example, the trial judge took an entirely different view of the impact of the July 2001 incident than did the assessor. The assessor did not consider it significant; the trial judge did. Whether or not we would have placed as much emphasis on the incident as did the trial judge is beside the point. The weight to be attached to the impact of the incident was for the trial judge. The trial judge could not simply delegate her fact-finding responsibilities to the assessor.

[9] In his written submissions, the appellant raises a number of other issues. Most of those issues concern the weight to be attached to certain factors. We are not persuaded that any of those grounds amount to reversible error.

[10] The father filed extensive fresh evidence on the appeal. Given the over two-year period since the decision of the trial judge we have considered this fresh evidence. The evidence shows that the mother’s relationship with her companion in Quebec ended and she returned to Ontario about a year later. The father had limited opportunity for access while the mother and child were in Quebec. We accept that the mother’s conduct may not have always facilitated access, but there were other reasons, including the father’s own financial situation, that impacted on the access while the mother and child lived in Quebec.

[11] Since their return to Ontario, the access has fallen into a regular pattern where the child and the father make their own access arrangements, usually one day every other weekend. We agree with the father that this could not be considered the kind of generous access as was contemplated by the trial judge’s order. However, the child of the marriage is now thirteen years of age and this is the access that she appears to desire. The fresh evidence does not convince us that the mother is attempting to undermine the relationship with the father. That said, we remind the mother that access is not solely her daughter’s responsibility. The trial judge’s order was directed to the parties, not the child and she has an obligation to facilitate the father’s access. Further, it is still open to the father to apply to the trial judge pursuant to paragraph 4 of the Judgment.

[12] The father also seeks leave to appeal the costs order. Unquestionably, the trial judge misapprehended the father’s first offer to settle. But, the fact remains that the mother achieved substantial success on the issues that dominated the trial. Awarding costs to the mother is consistent with the principle set out in Rule 24 of the Family Law Rules, O. Reg. 114/99.

[13] Accordingly, aside from setting aside paragraph 2 of the Judgment, the appeal is dismissed.

[14] We have given anxious consideration to the question of costs. The father achieved some success in that the mobility clause has been removed. He is also rightly concerned that the mother has not done everything she could to facilitate access as contemplated by the Judgment. In the circumstances, there will be no order for costs.

[15] On the hearing of the appeal, the mother raised a problem she is having in settling the costs order made by the trial judge. From the record, we gather that there is a dispute about the disbursements. We remind the parties of Goodman J.’s order clarifying the trial judge’s order in respect of costs and in particular her order that, “Delay in the determination of the disbursements shall not delay the payment of sums already fixed and referred to in this paragraph.” We are not in a position to fix the disbursements. If the parties cannot agree on the amount of the disbursements they should take out an appointment with the trial judge as provided for in Goodman J.’s order.

Signed: “R. Roy McMurtry C.J.O.”

“M. Rosenberg J.A.”

“R.A. Blair J.A.”