DATE: 2006-11-02

DOCKET: C43897

COURT OF APPEAL FOR ONTARIO

RE:

FRANK COOK (Applicant/Appellant) – and – LORA SACCO (Respondent)

BEFORE:

WEILER, BLAIR and ROULEAU JJ.A.

COUNSEL:

Todd K. Plant

for the appellant

Jeremy Dolgin

for the respondent

HEARD:

October 18, 2006

On appeal from the order of Justice Robert E. Zelinski of the Superior Court of Justice dated June 24, 2005.

E N D O R S E M E N T

[1] The appellant, Frank Cook, is appealing the order dated June 24, 2005, granting the appellant and respondent joint custody of their children, and requiring the appellant to pay the respondent child and spousal support monthly. The appellant seeks to have the order set aside and requests the following:

(1) A Final Order for sole custody of the children in favour of the appellant;

(2) A Final Order for access to the children by the respondent, on the terms set out in the assessment report of Dr. Weinberger;

(3) A Final Order dismissing the respondent’s claim for spousal support; and,

(4) A Final Order requiring the respondent to pay the appellant child support and her share of the section 7 expenses in accordance with the Child Support Guidelines, along with an obligation to make ongoing financial disclosure.

[2] In the alternative, the appellant requests that a new trial be ordered with directions to the trial judge. The appellant further requests that this court order a stay of the judgment pending the disposition of the appeal. The appellant also seeks costs of the appeal and throughout. The respondent requests a dismissal of the appeal and costs of the appeal. Alternatively, the respondent requests a new trial.

FACTS

[3] The appellant and the respondent met in Japan in 1994. The couple married in Canada on October 27, 1997. They have two children. They separated on February 1, 2003. The appellant brought an application before the trial judge seeking sole custody, child support and contribution towards special and extraordinary expenses for activities in which the children are enrolled.

Dr. Weinberger’s Custody and Access Assessment Report

[4] The appellant and respondent retained Dr. Weinberger to prepare a custody and access assessment for the purposes of the application hearing. On July 7, 2004, he reported that he could not see how a joint decision making arrangement would be feasible in the circumstances. He did, however, note that this might change if the respondent became healthy and settled into recovery. Dr. Weinberger recommended interim sole custody to the appellant, to be reviewed in 18-24 months, with significant ongoing but defined access that included weekends, overnights and extensive holiday time to the respondent.

Dr. Sweet’s Evidence

[5] At the application hearing, Dr. Sweet testified that the respondent suffers from substance abuse and Type II bi-polar affective disorder. He also stated that he is not especially disturbed by the respondent’s relapses because he believes psychiatric assistance will help the respondent. He identified prospective treatment of the respondent with antibuse. The respondent has been unable to pay for such medication but Dr. Sweet testified that the medication would be made available to the respondent, possibly without charge, if ordered by the court. He testified that he would be prepared to prescribe its use and to supervise the treatment. The respondent not only consented to such an order, but also expressed a wish that it be made. Dr. Sweet believed that the respondent was gradually learning about and accepting her problems. He stated, however, that to improve, the respondent would have to absent herself from work for two years.

Disposition

[6] Upon hearing all available evidence, the trial judge made numerous findings of fact. The most significant ones are reproduced below:

• The respondent has ongoing addiction problems and suffers from bipolar affective disorder;

• The appellant and respondent have co-parented for almost 3 years;

• The children have benefited and grown under the extended periods of time each parent has with them;

• The respondent is a loving, forthcoming and truthful mother who makes her children’s best interests her own;

• The respondent is likely to relapse again but her relapses have never affected the parenting which she has shared with the appellant;

• The respondent will continue to seek appropriate help when needed;

• The appellant is a loving parent and the more emotionally stable parent;

• The appellant is not prepared to recognize the respondent’s important parenting role except to the extent necessitated by his own work schedule, availability and interests;

• Some of the evidence adduced at trial contradicted portions of Dr. Weinberger’s conclusions;

• The appellant provided and paid for the furnishings in the matrimonial home;

• The respondent is not in a relationship that is contrary to the respondent’s ongoing treatment;

• The children are deeply attached to each parent; and,

• The respondent has no income other than social assistance.

[7] Based on his findings of fact and a review of the applicable legal principles, the trial judge made numerous orders, including joint custody of the children, antibuse treatment for the respondent, and monthly payments of $225 and $325 for child and spousal support, respectively, to the respondent.

ISSUES

1. Did the trial judge err in making his custody order?

[8] The appellant’s submission on this point may be summarized as follows. The trial judge erred by making his custody order on the basis of what would purportedly be in the best interests of the respondent, instead of the children. The trial judge found that co-parenting would help the respondent with her substance abuse recovery efforts. He also based his decision on his finding that if he granted the appellant sole custody, the respondent’s potential future enlarged parenting role would be prejudiced by such an order, and that if she had to wait one-and-a-half to two years for such a parenting role, this would be a disincentive to her efforts to overcome her drug and alcohol addictions. The trial judge was obliged to consider each of the factors in the Childrens’ Law Reform Act in light of the evidence adduced at trial. The trial judge failed to do so. In addition, he misdirected himself with respect to the relevant evidence in favour of sole custody and with respect to the relevant evidence against joint and shared custody.

[9] We disagree. In our opinion, the trial judge did not base his decision on the best interests of the respondent. The trial judge recognized that the legal test was the best interests of the children and specifically dealt with all of the factors relating to that test. The trial judge did comment that joint custody would be contingent on the respondent’s continuing efforts to stay clear of substance abuse. He also opined that joint custody would serve as an incentive to her and that a delay in commencing joint custody could be a disincentive. A parent’s sobriety and addiction issues are clearly significant in determining the best interests of children and the trial judge did not commit an error in making the comments he did. The trial judge saw the respondent’s sobriety as a factor in determining her fitness to parent and not as an end in and of itself, or the objective of his ultimate parenting decision. The factual findings made by the trial judge served as a backdrop to his analysis of what was in the best interests of the children.

[10] With respect to shared custody, the appellant submits that all of the evidence disclosed that the parents were unable to co-operate and therefore to co-parent. We do not agree that the trial judge misapprehended the evidence. His decision is entitled to deference. The trial judge noted that the parents agreed to engage and jointly pay for Dr. Weinberger’s assessment. He adopted Dr. Weinberger’s comment to the effect that, “the girls love their mother and it would be hurtful to them to have any loss of time or contact with her.” He held, however, that Dr. Weinberger’s opinion that joint decision making was not feasible did not accord with the actual regime that was in place. They were able to agree to access schedules including holiday access; while there were difficulties coordinating pickup and drop-off times they were able to do so. They agreed that the children would attend bible school and other extra curricular activities. We would defer to the trial judge’s finding that, despite their difficulties, the parents were the able to co-parent and that that arrangement was in the best interests of the children.

[11] We would not give effect to this ground of appeal.

2. Did the trial judge err in allowing Dr. Sweet to give expert evidence?

[12] The appellant submits that the trial judge erred in permitting Dr. Sweet to give evidence, or in the alternative, that he gave evidence outside of his area of expertise. Dr. Sweet testified as to the respondent’s efforts and ability to rehabilitate herself. He also gave evidence as to the respondent’s ability to parent her children. Dr. Sweet is not a psychiatrist or a psychologist and has no background in child psychology .The appellant submits that Dr. Sweet could not give an opinion with respect to the respondent’s ability to parent.

[13] The trial judge specifically considered the four-part test articulated in Mohan in determining whether to allow the Dr. Sweet’s expert evidence. Dr. Sweet was able to show “special or peculiar knowledge through study or experience” in the areas of addictions and related psychological problems. He was previously recognized as an expert in a similar case before the Ontario Superior Court. Dr. Sweet had extensive experience in dealing with addiction and the psychological effects of addiction and the respondent had been his patient for a long time. It was open to the trial judge to qualify Dr. Sweet as an expert and to admit his evidence. Nor did the trial judge misuse that evidence.

[14] The only issue with respect to the respondent’s parenting ability was her substance abuse and mental health problems. Dr. Sweet was entitled to testify with respect to those issues. The trial judge used that evidence to conclude that she could parent and it was open to him to do that.

[15] While the appellant also complains that he was not given an expert’s report ahead of time, the trial judge provided the appellant’s counsel with the opportunity of an adjournment, which was refused.

[16] We would dismiss this ground of appeal

3. Did the trial judge err in making the spousal support award?

[17] The appellant submits that the trial judge failed to consider any of the factors delineated in the Family Law Act regarding entitlement or quantum of spousal support.

[18] In our opinion a fair reading of the trial judge’s reasons as a whole indicates that he did turn his mind to the factors outlined in the Family Law Act. In particular, he considered the appellant’s and the respondent’s current and future assets and means, their capacities to contribute to their own support, their needs, and the nature of their relationship. We see no reason to interfere.

[19] The appeal is dismissed.

[20] Having received the costs submissions of the parties and considered them, we would award costs to the respondent fixed in the amount of $5500 all inclusive.

“Karen M. Weiler J.A.”

“R. A. Blair J.A.”

“Paul Rouleau J.A.”