CITATION: Somerville v. Somerville, 2007 ONCA 210
DATE: 20070326
DOCKET: C45263
COURT OF APPEAL FOR ONTARIO
LASKIN, CRONK and LANG JJ.A.
B E T W E E N :
BRIAN MICHAEL SOMERVILLE
Pamela L. Hebner, for the appellant
Applicant (Appellant)
- and -
MICHELLE ANGELA SOMERVILLE
David St. C. Bond, for the respondent
Respondent (Respondent in Appeal)
Heard: February 2, 2007
On appeal from the divorce order of Justice Nick Borkovich of the Superior Court of Justice, dated March 23, 2006.
LANG J.A.:
Overview
[1] The appellant father, Brian Somerville, appeals from the judgment of Borkovich J., which awarded sole custody of the two children (now six and three-and-a-half years of age) to the respondent mother, Michelle Somerville, and did not deal with the issue of the appellant’s access to the access to the children.
[2] For the reasons that follow, I would allow the appeal and order a new trial.
Background
[3] After ten years of marriage, the parties separated in February 2003. At the time, the respondent was pregnant with the parties’ second child. In May 2003, the parties entered into a separation agreement, which provided for shared custody with the children residing equal amounts of time at each party’s residence. As well, it provided for consultation regarding matters affecting the children.
[4] In July 2004, the appellant brought an application for divorce, custody and child support. Pending trial, the interim order of Glithero J. provided for a shared parenting arrangement with a schedule of rotating residences for the children.
[5] At trial, although each parent was content with a shared custody regime, each sought to gain primary residence of the children because they found their existing arrangement of two days with one parent followed by two days with the other to be too disruptive for the children.
[6] In addition to seeking primary residence, the appellant sought to have the final decision on significant matters affecting the children. On this issue, the respondent suggested that such matters could be resolved through mediation, since the parties had resolved other disagreements this way in the past.
Trial decision
[7] Despite the positions of the parties regarding shared custody, after a four-day trial, the trial judge awarded sole custody to the respondent. He did so because he found the appellant to be arrogant as well as both disparaging and controlling of the respondent. The trial judge was also influenced by his finding that the appellant had been deceitful with the respondent regarding the reasons that he left the marriage and, in particular, regarding his relationship with the woman who is now the appellant’s wife. In contrast, the trial judge found the respondent to be “blameless” with respect to the break-up of the marriage.
[8] On the basis of the evidence from the appellant and his current wife, the trial judge concluded that they intended to be the children’s only family and that they would minimize the respondent’s involvement in the children’s lives.
[9] Since the trial judge was of the view that the appellant would not cooperate in a shared joint custody arrangement, he determined that such an arrangement would “lead to disaster and would not be in the best interests of the children.”
[10] The trial judge refused to consider the parties’ separation agreement as a relevant factor because he found that the appellant induced the respondent to enter into the agreement by fraudulently holding out to her a false hope of reconciliation. In any event, given the “present status quo” and the “passage of time”, he considered the separation agreement to have no relevance to the issues.
[11] For these reasons, the trial judge refused to order joint custody and instead awarded sole custody with primary residence to the respondent. In addition, he ordered that the respondent would have the right to make all important decisions regarding the children. The trial judge did not determine the question of access “to allow some time for the parties to attempt to resolve [that issue].”
[12] The trial judge’s order was stayed pending this appeal by order of Flynn J. dated July 26, 2006.
Analysis
[13] It is an error in principle to place undue emphasis on the conduct of a parent and insufficient emphasis on the children’s best interests when determining child custody issues. See Cox v. Stephen, 2003 18571 (ON CA), [2003] O.J. No. 4371 (C.A.). In this case, the trial judge erred by focusing on the appellant’s deceit and his controlling conduct almost to the exclusion of the other factors relevant to the best interests of the children and the merits of the agreed equal parenting arrangements that were in place at the time of trial.
[14] In reaching his decision regarding custody of the children, the trial judge did not address the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) s. 16(8) factors of the “best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.” The trial judge did not review the extensive evidence given at trial about the children’s situation since the parties’ separation both in the home of the appellant and in the home of the respondent. He did not consider their school arrangements, their daycare arrangements, their extra-curricular activities, or their emotional needs and bonds with their parents and their caregivers. He did not refer to the evidence about how the parties resolved, and failed to resolve, conflicts concerning the children in the past.
[15] Although the trial judge highlighted his concerns about the appellant’s inability to facilitate contact with the respondent, he did not address the other s. 16(10) factor, which requires a court to give effect to the principle that a child should have as much contact with each parent as is consistent with the child’s best interests.
[16] As well, s. 16(9) of the Divorce Act specifically instructs a court to “not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of a child.” While the appellant’s “deceit” certainly reflected on his ability as a spouse, it does not follow that this is the controlling factor reflective of his abilities as a parent.
[17] Finally, the trial judge erred in declining to deal with the issue of access.
Result
[18] For these reasons, the order below must be set aside. On the basis of the record before this court, it is not feasible to determine what custodial terms are in the best interests of the children, particularly since we have not had the opportunity available to the trial judge to observe the parties or their witnesses and to draw conclusions about the family dynamics from the whole of the evidence.
[19] Accordingly, in my view, there must be a new trial on the issues of custody and access as well as the ancillary issue of child support. Pending that trial, the terms of the order of Flynn J. dated July 26, 2006 shall remain in effect. In this way, except as varied by an order of a judge of the Superior Court of Justice, the parenting arrangements will be in accord with paragraph 1 of the order of Glithero J. of November 3, 2004 and child support will be in accord with paragraph 2 of the order of Flynn J.
[20] I note that the delay in releasing this decision resulted from the parties’ efforts to settle these issues without the need for a determination of this appeal. We are informed that they have been unsuccessful in reaching a settlement. Clearly, this matter should proceed for a new trial at the earliest available trial date.
[21] In the circumstances, there will be no order as to costs of this appeal or of the stay motion below.
RELEASED: March 26, 2007 “S.E. Lang J.A.”
“I agree John Laskin J.A.”
“I agree E.A. Cronk”