DATE: 20060602
DOCKET: C42170
COURT OF APPEAL FOR ONTARIO
LASKIN, BORINS AND JURIANSZ JJ.A.
B E T W E E N :
ERIC MICHAEL URSIC
Norman M. Aitken for the respondent
Respondent
- and -
JOANNE HILDA URSIC
Malcolm Bennett for the appellant
Appellant
Heard: April 25, 2006
On appeal from the judgment of Justice James M. Donnelly of the Superior Court of Justice, dated June 11 2004, made at Woodstock, Ontario.
LASKIN J.A.:
A. INTRODUCTION
[1] The appellant, Joanne Ursic (now Verbeek) and the respondent, Eric Ursic, are the parents of Jacob Ursic, who is now four and a half years old. This appeal is principally about the custody of Jacob.
[2] The parties had lived together since 1995, and were married in 2000. Jacob was born in September 2001. In December 2003, when Jacob was a little more than two years old, the appellant and the respondent separated, though they continued to live under the same roof until June 2004.
[3] Over four days in April and May 2004, the parties litigated the question of custody before Donnelly J. Each parent sought sole custody of Jacob. Each parent has a job – Mrs. Verbeek is an athletic officer at Fanshawe College in London, and Mr. Ursic is a high school teacher in St. Thomas – and each put forward a different parenting plan for Jacob.
[4] In his lengthy and reasoned decision, reported at [2004] O.J. No. 3550 (Sup. Ct. J.), Donnelly J. ordered that the appellant and respondent share “joint custody in the parallel parenting mode”. He set out a detailed parenting schedule, under which Jacob was to live with each parent about half the time.
[5] Jacob’s mother has appealed to this court, contending that the trial judge erred in failing to award her sole custody of Jacob. She advances three main submissions in support of her appeal:
(1) The trial judge erred by putting the father’s interests ahead of Jacob’s best interests.
(2) The trial judge erred by presuming co-parenting was appropriate, even though Jacob had never been solely in his father’s care.
(3) The trial judge erred by granting joint custody in the face of a history of conflict between the parents on how best to raise Jacob.
[6] The appellant also asks this court to order child support in accordance with the Child Support Guidelines, S.O.R. /1997-175. Although child support was in issue before the trial judge, he did not deal with it in his decision.
B. RELEVANT MATTERS BETWEEN TRIAL AND APPEAL
[7] The events that have taken place after trial and before the argument of the appeal had a bearing on this court’s decision.
[8] The trial judge delivered his decision on June 11, 2004. After filing her notice of appeal, the appellant sought a stay of the trial judgment. On July 30, 2004, Gillese J.A. granted a stay on revised terms of access to which the parties agreed. These terms, though different from those ordered by the trial judge, still gave the parties roughly equal time with Jacob.
[9] The parties then agreed to mediate their dispute before Lang J.A. To assist in the mediation, they also agreed to ask Morrison Reid, a social worker, to deliver an assessment report and recommend a parenting plan for Jacob. The mediation did not resolve the parties’ dispute. However, Mr. Reid delivered an interim report in August 2005 and a final report in September 2005. Those reports were filed as fresh evidence on the appeal.
[10] Mr. Reid concluded that “joint custody over one year has demonstrated the ability to meet Jacob’s needs well, and should be continued.” He recommended a parenting plan somewhat different from the plan endorsed by Gillese J.A., but under which Jacob would continue to live with each parent approximately half the time. At Appendix A to these reasons is a copy of Mr. Reid’s recommended parenting plan.
[11] By September 2005, Jacob was ready to start kindergarten. The parties could not agree on which school he should attend, each preferring one closer to his or her residence. Mr. Reid recommended that Jacob go to Northridge Public School, the school closer to his mother’s home. Mr. Ursic accepted this recommendation; in return, Mrs. Verbeek agreed to Mr. Reid’s parenting plan. There are relatively minor differences between the plan recommended in Mr. Reid’s interim report, and the plan recommended in his final report. Since September 2005, Jacob has been cared for in accordance with the plan in Mr. Reid’s final report.
C. THE PARTIES’ POSITIONS ON APPEAL
[12] On appeal, Mrs. Verbeek still seeks sole custody of Jacob. Mr. Ursic is content with the trial judge’s order for joint custody and parallel parenting, and with the parenting plan recommended by Mr. Reid, which has now been in effect for nearly nine months. Mr. Ursic, however, contends that he should have the final say on the school Jacob attends. Neither party wants a new trial.
D. CUSTODY OF JACOB
[13] The following brief overview will put the appellant’s submissions in context.
[14] The record shows a pattern of considerable conflict between Jacob’s parents, especially over how best to raise Jacob. Mr. Reid commented on this conflict in his final report:
Joanne and Eric report that conflict has continued in their relationship since their separation. They agree that this conflict is usually about their differing perspectives about Jacob’s needs and what should be an appropriate parenting plan.
[15] Despite this conflict, the appellant and respondent have largely succeeded in putting Jacob’s interests above their own, and they have not exposed their son to their differences. For this they are to be commended.
[16] What is also clear from the record, and from the findings of the trial judge, is that each parent is both competent and caring, and each has a loving relationship with Jacob. Although Mrs. Verbeek took a one-year maternity leave after Jacob was born, and in that sense has been Jacob’s primary caregiver, Mr. Ursic has been actively involved in his son’s upbringing. Each parent has sufficiently flexible hours of work to be able to spend considerable time with Jacob.
[17] The trial judge put his views of the parents this way:
Jacob has lived in the same house with his parents each of whom has an abiding motivation to contribute to his care and well being. It is beyond question that each parent loves Jacob. At his age his preference was not in issue. Although the marriage failed, from Jacob’s perspective the home environment was stable thanks to the combined efforts of the parents. Each parent offers and has the ability to provide supervision, guidance, education, the necessaries of life and for such needs as may arise. The proposed plans for Jacob’s care and upbringing are similar, each in the early stages involving parental care supplemented by family or commercial care providers. Both parents are stable. Both are the biological parents (para. 38).
Each has demonstrated through their months of living separately in the same home that they are mature. . . In that unquestionably difficult circumstance they were able to maintain stability for Jacob through their personal difficulties.
Both parents are well on the plus side of competence. They are genuinely committed to Jacob’s well-being and are capable of operating at a level above their grievances. It is beyond doubt that they are capable of carrying out a parallel parenting plan in Jacob’s best interest (paras. 49-50).
[18] Appellate review of a trial judge’s determination of a child’s best interests is necessarily limited. It is the trial judge who lives through the human drama as it unfolds. It is the trial judge who hears each party’s entire story and has the opportunity to assess each party’s witnesses. And it is the trial judge who can best put in perspective each party’s inevitable criticism of the other. For these reasons, it is the trial judge who is in the best position to determine the parenting plan that would most accord with the child’s best interests.
[19] Of course, if a trial judge commits a palpable and overriding factual error, or a material legal error, or unreasonably exercises his or her discretion, then an appellate court has a duty to intervene. But it should do so only in these limited circumstances. Many authorities of this court and the Supreme Court of Canada affirm this limited scope of appellate review in custody cases. One example is the decision of Cory J. and Iacobucci J. in P. (D.) v. S. (C.) (Droit de la Famille – 1150), [1993] 4 S.C.R. 141 at 192:
Similarly the trial judge is in the best position to assess evidence pertaining to the best interests of the child. It is the trial judge who not only hears the evidence but also has the great advantage of watching the demeanor of all who testify. It is the trial judge who can take into account the significant pauses in the responses, the changes in facial expression, the looks of anger, confusion and concern. In the vast majority of cases as a result of hearing and seeing all the witnesses, it is the trial judge who is in the most advantageous position to determine the best interests of the child.
See also Behrens v. Stoodley (1999), 3 R.F.L. (5th) 8 (Ont. C.A.), and Cox v. Stephen (2002), 30 R.F.L. (5th) 54, at para. 4 (Ont. S.C.J.), aff’d (2003), 47 R.F.L. (5th) 1 (Ont. C.A.).
[20] I turn now to the appellant’s three submissions. First, she argues that the trial judge put the respondent’s interests ahead of those of Jacob. She relies on para. 41 of the trial judge’s reasons, where he said:
No reason is found in the evidence why the Applicant should not have full opportunity to participate in Jacob’s upbringing. He has much to offer in terms of a calm and patient disposition, dedication, guidance and love. Jacob will benefit in large measure from association with his father and paternal grandparents. Jacob’s care is not in question, when in his father’s custody.
[21] The appellant contends that this paragraph shows the trial judge’s concern for “the father’s rights” and not the child’s best interests. I do not read it that way. Rather, the trial judge is simply saying that Jacob will benefit from his father’s participation in his upbringing.
[22] Moreover, this paragraph has to be read in the context of the reasons as a whole. The trial judge began his judgment with this question: “The issue – [w]hat custody and access arrangements are in the best interests of Jacob …”. The trial judge also expressly refers to s. 24 of the Children’s Law Reform Act, R.S.O. 1990, c. C-12, which directs the court to decide custody “on the basis of the best interests of the child.” And the trial judge effectively concludes at para. 47 that it is in Jacob’s best interests “to maintain a relationship with both parents beyond that provided by access.” Therefore, I would not give effect to the appellant’s first submission.
[23] The appellant’s second submission is that the trial judge wrongly presumed co-parenting was appropriate even though Jacob had never been solely in his father’s care. I do not agree with this submission either. It is true that up until the trial, the respondent did not have sole care of Jacob. But that does not preclude a joint custody order.
[24] More germane to the appellant’s submission, the trial judge did not start from the presumption that a co-parenting arrangement was the appropriate arrangement. Quite the opposite. He concluded at para. 45 that “this is that rare case where, although the mother has much to offer, Jacob’s best interest demands the Applicant Father must have a meaningful and secure role in his life.” And he added, “[t]he parallel parenting concept is no one’s first choice” (para. 48). But in the trial judge’s view, “it [is] substantially preferable to the other options.” Thus, I would not give effect to the appellant’s second submission.
[25] The appellant’s third submission is that a joint custody order was not appropriate because the parties were continually in conflict over how best to raise Jacob and could neither co-operate nor communicate with each other on his upbringing. Courts have generally been reluctant to order joint custody where parents are unwilling to set aside their differences and work together to raise their child or children. See for example the reasons of Weiler J.A. in Kaplanis v. Kaplanis (2005), 10 R.F.L. (6th) 373 (Ont. C.A.). Here, however, despite the conflict between them, the parties, to their credit, have largely co-operated on major decisions affecting Jacob. The issue of Jacob’s schooling, to which I will return later in these reasons, is the exception.
[26] Also, importantly, the trial judge did not merely order joint custody. He included with it a parallel parenting order. Many trial courts have recognized that joint custody under a parallel parenting regime may be suitable where both parents love the child and should play an active role in the child’s life, yet have difficulty communicating or reaching a consensus on the child’s upbringing. See T.J.M. v. P.G.M. (2002), 25 R.F.L. (5th) 78 (Ont. Sup. Ct. J.), and Mol v. Mol, [1997] O.J. No. 4060 (Sup. Ct. J.). The trial judge viewed parallel parenting to be suitable in this case, and I am not persuaded that he erred in ordering it.
[27] Overall, nothing in the record affords a basis for changing the joint custody order to an order for sole custody in favor of the appellant. The trial judge did not commit a reviewable error of fact or law, and he did not exercise his discretion unreasonably. Moreover, the fresh evidence filed on appeal supports the wisdom of the trial judge’s decision. We are now at a distance of two years from the trial. The evidence available to us suggests that Jacob has thrived under the regime ordered by the trial judge. Mr. Reid confirmed this to be so in his assessment report and, therefore, concluded that the trial judge’s joint custody order should continue:
Jacob believes his parents to be friends, which would not be the situation if he had experienced exposure to their animosity toward each other. It is an observation and conclusion of this assessment that Jacob has a strong loving relationship with his mother and father and both are competent caring parents. Because of Jacob’s current excellent progress with respect to child development, his lack of exposure to parent conflict and his strong relationship with competent parents, there are no reasons to suggest a decrease in parenting time for either parent or a change of the present joint custody arrangement.
[28] In summary, the trial judge’s findings are supported by the evidence at trial and buttressed by the opinion of the one expert who has assessed the child. I would therefore dismiss the appellant’s appeal in respect of the custody of Jacob.
[29] However, I add these four concluding comments. First, for the past nine months Jacob has lived with each parent under the parenting plan recommended by Mr. Reid. That plan differs from the plan ordered by the trial judge. In the interests of continuity and stability, it is sensible for Jacob to be cared for under Mr. Reid’s plan. To that extent, I would vary the order of the trial judge.
[30] Second, typically when a court orders parallel parenting, it allocates decision- making on major matters, so that in case of a conflict, one parent will have the final say. The trial judge did not allocate decision-making in this case.
[31] Fortunately, and again to their credit, the parties have agreed on most major matters affecting Jacob – his health care, religious upbringing and extracurricular activities. One major exception is schooling. The parties cannot agree on the school Jacob should attend, and each wants the right to make that decision.
[32] I do not think it appropriate for this court to allocate decision making on schooling. However, I think it is fair to provide that Jacob should continue to go to Northridge Public School unless both parties agree to send him to another school, or unless either parent brings forward compelling and cogent evidence showing a change of schools is in Jacob’s best interest. I would so provide for these reasons: Mr. Reid recommended that Jacob go to Northridge; Jacob will likely already have formed attachments to the school; and, continuing at the school promotes stability in Jacob’s life.
[33] Third, before the trial began, both parties asked the trial judge to order an assessment report on Jacob. The trial judge refused their request, and proceeded with the trial. Although a trial judge has discretion whether to order an assessment, and although the trial judge in this case no doubt thought a speedy trial was in everyone’s best interests, I expect an expert assessment of Jacob before trial would have been useful both to the court and to the parties. I can do no better than repeat the words of Gillese J.A. in her decision on the appellant’s stay motion:
In particular, in a situation where there is a high degree of conflict and the child is but a toddler. This is a situation that cries out for expert assessment and the benefits such information could give trial judge. While assessments are the discretion of the court, it may have been an error to refuse to order one where such expert testimony would be of such use and need to the trial judge.
As is apparent from my reasons, I have found the expert assessment of Jacob prepared after trial of great assistance in deciding this appeal.
[34] Fourth, I comment briefly on one aspect of the trial judge’s parenting schedule. At paras. 55 and 56, he provided that Mr. Ursic have care and control of Jacob “without interruption for the month of July” and that Mrs. Verbeek similarly have care and control of Jacob for all of August. When those terms came into effect in the summer of 2004, Jacob was not even three years old and had not been out of his mother’s care for more than two consecutive days. The well known expert, Peter Jaffe, who filed an affidavit in support of Mrs. Verbeek’s stay motion, commented on the inappropriateness of these provisions:
In my opinion, these extended periods of time without contact with the other parent are contra-indicated by the child’s age and stage of development. In fact, it likely is harmful to a child’s sense of security and primary attachments for this schedule to occur.
[35] I concur. Indeed, the trial judge appeared to recognize that extended periods with one parent to the exclusion of the other were ill advised. Earlier in his reasons at para. 45, he rejected the idea of “week-about shared custody” as being “too extreme for a child of Jacob’s age and fails for want of security and stability.” In fashioning a summer parenting schedule, the trial judge appears to have overlooked his own reasoning.
[36] However, Gillese J.A. gave Mr. Ursic access for two weekends in August. Most importantly, Jacob is by all accounts a resilient child and he managed to cope during these extended periods when he did not see one or the other of his parents.
E. CHILD SUPPORT
[37] The appellant claimed child support at trial, but the trial judge did not address her claim. Both parties are salaried employees. Mr. Ursic, however, earns more than Mrs. Verbeek. He should therefore pay net child support in accordance with the Child Support Guidelines. I assume that the parties, with the assistance of their counsel, can work out the appropriate monthly figure. Support should be paid from June 1, 2004, the beginning of the month in which the trial judge delivered his judgment.
F. CONCLUSION
[38] I am not persuaded that the trial judge committed a reviewable error in awarding joint custody under a parallel parenting regime. I would, however, vary his parenting schedule by implementing the schedule recommended by Mr. Reid, which has now been in effect since September 2005. Otherwise, I would dismiss Mrs.Verbeek’s appeal concerning the custody of Jacob.
[39] I would allow her appeal on child support, and order that Mr. Ursic pay her child support in accordance with the Child Support Guidelines, effective June 1, 2004.
[40] As Mr. Ursic has largely succeeded on the appeal, I would order that the appellant pay his costs of the appeal, including the stay motion before Gillese J.A. I would fix those costs in the amount of $6,000, inclusive of disbursements and GST.
RELEASED: June 2, 2006
“J.I.L.”
Signed “J.I.Laskin J.A.”
“I agree: S. Borins J.A.”
“I agree: R. Juriansz J.A.”
APPENDIX A
RECOMMENDATIONS
Joint custody of Jacob Ursic be awarded to his father, Eric Ursic, and his mother, Joanne Verbeek.
Jacob to reside with his father the first three of every four weekends from Friday evening until Monday morning, and Wednesday evening and overnight prior to and following the fourth weekend when he is not in his father’s home. Jacob to reside with his mother the fourth of every four weekends. If a stat holiday or P.D. day is concurrent with a weekend, it is to be considered part of the weekend. This schedule is to reverse in the summer when Eric Ursic is on vacation from teaching. With the exception of the one full week of vacation with both parents during July and August, Jacob will reside with his mother on weekends from Friday to Monday morning with weekends including statutory holidays and with his father Monday until Friday evening.
The parenting plan may change to an arrangement where Jacob resides with each parent half of each week when he begins to attend school full days. In this situation, Jacob would reside with each parent the same two consecutive day and overnight periods Monday and Tuesday with one parent, Wednesday and Thursday with the other parent, and on alternate weekends with Friday considered part of each weekend.
Religious holidays, Thanksgiving holiday and Jacob’s birthday to rotate between each parent’s home on a yearly basis. Christmas and March break school vacations to be divided equally between the parents. In the summer, each parent to have one week of vacation with Jacob in July and August. When Jacob is 8 years of age, two week consecutive vacation periods are acceptable with each parent.
The parents to communicate with each other about school, health care and religious decisions.
Each parent to have direct contact with teachers, doctors, mental health professionals, and others such as religious and community activity leaders.
In the event of disagreement about education, health care or religion, the parents are to follow the advice of the professional responsible for Jacob’s care in these concerns.