Schwemler v. McBain., 2008 ONCA 772

CITATION: Schwemler v. McBain., 2008 ONCA 772

DATE: 20081118

DOCKET: C46949

COURT OF APPEAL FOR ONTARIO

Rosenberg, Borins and Gillese JJ.A.

BETWEEN:

Darin Schwemler

Applicant (Appellant)

and

Margaret McBain and Luc Ralph

Respondents (Respondents)

Eric D. McCooeye for the appellant

No one appearing for the respondents

Heard: September 10, 2008

On appeal from the order of Justice Bourke Smith of the Superior Court of Justice dated March 1, 2007.

Rosenberg J.A.

[1] The appellant Darin Schwemler appeals from the judgment of Smith J. dismissing his application for a declaration under s. 4 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 that he be recognized as the father of a child, Madison Ralph, and also dismissing his application for access to the child. There were two respondents to the application, Luc Ralph, who brought a cross-application seeking a declaration that he was the child’s father, and Margaret McBain, the child’s mother. Ralph’s cross-application was also dismissed.

[2] The appellant raises three grounds of appeal. He submits that the trial judge erred in excluding evidence of a conversation between a worker with the Children’s Aid Society and the mother on the basis of privilege. Second, that he erred in failing to draw an adverse inference from the mother’s refusal to permit DNA testing of the child. Third, that the judge’s reasons were inadequate, especially in failing to articulate why the appellant was disbelieved.

[3] For the following reasons, I would dismiss the appeal.

THE FACTS

The Relationships

[4] The child involved in this case, Madison Ralph, was born December 11, 2004. Thus, the important period for determining paternity was March 2004. Both the appellant and Mr. Ralph claim to have had sexual relations with Ms. McBain at that time. McBain, who pinpointed the date of conception at March 20, 2004, testified that she was only involved sexually with Ralph at that time, having ended her relationship with the appellant on February 20, 2004.

[5] In February and March 2004, the appellant and McBain lived in separate townhouses in a complex on Second Line West in Sault Ste. Marie. When the appellant first moved into the complex he was living with Pam Ralph, the spouse of the respondent Luc Ralph. Living with the appellant and Ms. Ralph were three children all bearing the last name Ralph. However, the appellant was the biological father of two of the children. The respondent Luc Ralph was the biological father of the third child.

[6] Pam Ralph introduced the appellant to Ms. McBain when they moved into the complex in the fall of 2003. By February 2004, the appellant had become interested in having a romantic relationship with Ms. McBain. Ms. McBain did not want to have such a relationship as long as the appellant was still with Pam Ralph. In the appellant’s words, he “granted that request” and had Ms. Ralph move out. The appellant retained custody of the three children. He began his sexual relationship with Ms. McBain on February 9, 2004.

[7] Throughout February and March the appellant and McBain maintained their separate residences, although the appellant and his three children would often stay over at the McBain residence with Ms. McBain and her four children. The appellant testified that he had sexual relations with McBain from February 9 until early July when he broke off the relationship because of an argument over use of a computer. As far as he knew, no one else was having sexual relations with McBain during this time. He testified that they were constantly together, and even when they were in their separate residences he had a clear view into her townhouse from his residence.

[8] Ms. McBain testified that she ended the relationship with the appellant on February 20, 2004 after an argument at a bar. She claimed that the appellant assaulted her because she refused to give him money so he could continue to drink. The appellant acknowledged that there was some sort of dispute on that date but denied assaulting McBain. He claimed that this was merely one of a number of arguments that he had with McBain. These arguments usually resolved themselves within a day, and the sexual relationship would then resume. Ms. McBain conceded that she continued to see the appellant almost daily over the next few months.

[9] Luc Ralph and Ms. McBain had known each other since 1994. Ms. McBain testified that she first had sexual relations with Ralph in February 2002 and continued to have occasional relations with him in the following years, including the time when she was having sexual relations with the appellant. She testified that after she ended her relationship with the appellant she was only having relations with Ralph.

[10] Luc Ralph testified that he was the father of two children with Pam Ralph. He had been charged with assaulting one of those children. He also had a lengthy criminal record for other offences, including offences of dishonesty. In 2003, when he was not in jail, he had a relationship with another woman with whom he has two other children.

[11] Like Ms. McBain, Mr. Ralph testified that they began having sexual relations in February 2002 and that this continued intermittently into 2004. Ralph testified that McBain told him that he was the father of one of her other children, a boy born in October 2002. From February 2004 to July 2004 they had sexual relations more often. Ms. McBain told Ralph that she had ended her relationship with the appellant in February. He and the three children who were in his custody moved in with Ms. McBain and her four children in July 2004. Neither he nor McBain were using contraceptive measures. McBain and Ralph were still together at the time of the trial in November 2006 and were discussing marriage.

The Pregnancy

[12] Ms. McBain testified that she first learned she was pregnant on April 21, 2004 when she went to a gynaecologist, Dr. Amimi, for a tubal ligation. Before performing the procedure the physician did a pregnancy test and it was positive. She denied doing a home pregnancy test before then. She told Dr. Amimi that the father was “unknown”. Although neither she nor Ralph was using any kind of contraceptive measures, she was surprised by the results of the test. She explained that she was surprised because she had not become pregnant in the previous two years even though she was having unprotected sex during this period.

[13] The appellant had a different version. He initially testified that Ms. McBain had used a home pregnancy test and that it came back negative. He later testified that the results were ambiguous or possibly positive. McBain then went to see Dr. Amimi. Dr. Amimi later telephoned the house and spoke to McBain’s sister and gave her the results of the test. The sister then told the appellant, who was present when the call came in. When McBain returned home, the appellant told her the results of the test and she said, “Oh, okay.” According to the appellant, McBain was trying to get pregnant. On the other hand, he also testified that he was aware that Ms. McBain had discussed “getting her tubes tied” but he did not think that was why Ms. McBain went to see Dr. Amimi.

[14] According to the appellant, thereafter until they broke up, McBain told a number of people that he was the father of the child. After he broke up with McBain, they remained friendly until he started a relationship with another woman. At that point, McBain told him he was not going to have access to his daughter.

[15] McBain testified that she was aware that after they broke up, the appellant was telling people that he was the father of the child. She initially testified that she did not confront the appellant about these statements since she did not want to have anything to do with him. The trial judge then interjected and reminded Ms. McBain of her evidence that she had continued to see the appellant after February 2004. She then said that she did tell the appellant not to say he was the father of the child. The trial judge then asked Ms. McBain if she knew what the word “truth” was.

[16] Ralph testified that Ms. McBain told him she was pregnant sometime in May or June and that he was the father. He said they were “just talking” and she mentioned it. He described his reaction as, “I was happy about it, but … that’s about it.”

Statements to the CAS Workers

[17] The appellant, Mr. Ralph and Ms. McBain all had CAS Child Protection Workers assigned to them. The appellant and Ralph were clients of Renee Jefferson. The appellant testified that at first Ms. McBain hid the pregnancy from the CAS because she was afraid she would lose custody of her children because she was having another child. However, rumours were going around that McBain was pregnant and in April Ms. Jefferson confronted McBain about the rumours. McBain apparently admitted that she was pregnant and that the appellant was the father.

[18] Ms. Jefferson testified, however, that she first learned of the pregnancy on May 7, 2004 when she was at the appellant’s home and he told her. Ms. McBain was not present at the time. Thereafter she attended the appellant’s home on several occasions when Ms. McBain was present. Ms. Jefferson testified that the appellant told her on several occasions that he was the father of the child. Ms. McBain was present some of these times and never denied that the appellant was the father. These conversations continued at least into May or June 2004.

[19] Marla Barrett was the child protection worker for Ms. McBain. Counsel for the appellant called her to testify about her conversations with Ms. McBain. Counsel had previously obtained an order, apparently on consent, requiring that Ms. Barrett provide an affidavit to the appellant “setting out information of which she and the Society may be aware related to the issue of paternity of the child Madison Ralph”. Counsel for Ms. McBain objected to Ms. Barrett testifying about these conversations, claiming that they were privileged. The application judge upheld the objection.

[20] While the order requiring production of this information was filed at the trial, appellant’s counsel did not indicate what information had been provided. The only reference to her potential evidence was in cross-examination of Ms. McBain. Counsel for the appellant suggested to McBain that she told Ms. Barrett on May 4 that she was pregnant with the appellant’s child. Ms. McBain denied telling Ms. Barrett that the appellant was the father of her child.

The DNA Order

[21] Counsel for the appellant had obtained an order pursuant to s. 10 of the Children’s Law Reform Act granting leave to do DNA testing of the child. Ms. McBain refused to submit the child for testing. She testified that there was no need for the testing because she knew who the father was. She also testified that she did not want to put the child through the procedure.

Birth Registration

[22] Ms. McBain registered Luc Ralph as the father of the child.

Cross-examination of the Appellant

[23] The appellant was cross-examined on statements he had made in two affidavits. There were a number of contradictions between these statements and his testimony, including the following:

The length of the relationship: The appellant testified that the relationship with Ms. McBain began February 9, 2004 and ended on July 5, 2004. In one affidavit he stated that he and Ms. McBain were “constantly together” throughout 2004 until August. In the other affidavit, he testified that the relationship ended on July 1, 2004.

The date of conception: At trial, the appellant put the time of conception as March 2004. In one of the affidavits he referred to the time of conception as May.

The engagement ring: At trial, the appellant testified that he gave Ms. McBain a ring as a sign of his commitment to her, but denied that he intended to marry her. In one affidavit, the appellant referred to the ring as an engagement ring which she wore on her “engagement finger”. He also stated that they had intended to marry in March 2004. When confronted with the affidavit, the appellant testified that they had discussed marriage.

The pregnancy test: At trial, the appellant gave several different versions of the results of the home pregnancy test. He first said it was negative, then said it was unclear and then said it appeared positive. In one of his affidavits, he stated that it was “like positive”.

Whether McBain wanted to get pregnant: The appellant testified that Ms. McBain wanted to get pregnant and have a child with him. He agreed that in one of his affidavits he stated that in “May 2005” McBain said that she had changed her mind and did not want to have a baby. He testified that the affidavit was mistaken and that the conversation was in March.

[24] The appellant admitted that he had read over his affidavits and there were a few mistakes in them but that “you… can’t always correct them all that you see”. The trial judge interjected to point out that these were “pretty vital” mistakes. The appellant agreed. Later, the trial judge asked the appellant if he had sworn on the Bible when he signed his affidavits. He said that he was not given a Bible and no one asked him to swear that the contents were true.

[25] There were other problems with the appellant’s evidence. He testified that he and Ms. McBain were “constantly together” and that no one else was having sexual relations with her during their relationship. He testified that they were apart only for a night or two as a result of arguments. In one of his affidavits he stated that they were not even apart for a few waking hours. However, he conceded in cross-examination that there were a number of occasions when they were not with each other. He agreed that Ms. McBain would have had an opportunity to have sexual relations with other men at those times. He was also aware that she had had sexual relations with Luc Ralph on at least one occasion before their relationship.

[26] The appellant initially testified: “I don’t drink.” He later conceded that he does drink and specifically was drinking on February 20, the date Ms. McBain put as the end of the relationship.

THE TRIAL JUDGE’S REASONS

[27] The trial judge briefly reviewed the evidence, particularly the evidence about the various relationships. He then referred to Ms. Jefferson’s evidence that Ms. McBain did not deny the appellant’s claim that he was the father of the child during the pregnancy. The trial judge did not attribute any probative value to this evidence:

This lack of comment would ordinarily work to the detriment of the validity of an eventual denial by McBain. But McBain’s demonstrated fluid attitude and position as to the fathering of children born to her takes her silence on this occasion out of ordinary circumstances.

[28] The trial judge also dealt with Ms. McBain’s refusal to have the DNA testing done. The trial judge drew the following inference from this refusal:

Bearing in mind the nonchalant attitude of Margaret McBain as to the fathering of her children, the inference I draw is that she does not know for certain who the father of Madison is and does not want to know.

[29] Finally, on the question of paternity, the trial judge stated that he could draw no conclusion as to who the father was. He said this:

In the end, it would be purely guesswork on my part to fix paternity. The strength of the evidence on both sides is equally suspect; the totality of it cannot be used to tip the scales to either side. Under these circumstances, where credibility of the parties is so wanting, no adverse inference available to me can supply the answer. The evidence is contradictory in every vital respect. None of the parties is sufficiently reliable as to support either the Applicant or the Cross-Applicant's position to the evidentiary extent required.

Specifically, in order to have any confidence in a ruling to support either claimant, I would have to be able to make some finding as to which of the applicants was the more likely sexual partner of the mother in the March, 2004 effective period. I find myself unable to do that because of the unreliability of the evidence on both sides. [Emphasis added.]

ANALYSIS

The Privilege Issue

[30] The appellant submits that the trial judge erred in finding that the communications between Ms. McBain and her child protection worker were privileged. In my view, it is not necessary to resolve this issue and, given that neither Ms. McBain nor the Children’s Aid Society appeared at this appeal, I am reluctant to do so. It is unnecessary to resolve the issue because the appellant has not shown that if there were an error, it would have affected the verdict. There was already evidence before the trial judge from Ms. Jefferson of implied admissions. The trial judge was unwilling to accord those admissions any weight because of Ms. McBain’s “demonstrated fluid attitude and position as to the fathering of children”. For the same reason, it is highly unlikely that the trial judge would have accorded any greater weight to admissions Ms. McBain may have made to Ms. Barrett. Further, there is almost nothing in the record to show the nature of any admissions allegedly made to Ms. Barrett, other than Ms. McBain’s denial that she told Ms. Barrett that the appellant was the father.

Failure to Permit DNA Testing

[31] Section 10(4) of the Children’s Law Reform Act provides that if a person named in an order giving leave to do DNA testing refuses to submit to the test, “the court may draw such inferences as it thinks appropriate”. The appellant submits that in the circumstances the trial judge was required to draw an adverse inference against Ms. McBain’s assertion that Ralph was the father of the child because of her refusal to permit the DNA testing of the child. In my view, there is no merit to this ground of appeal. Section 10(4) does not dictate the nature of the inference to be drawn from the refusal to undergo the testing. It was for the trial judge to determine as a matter of fact what inference should be drawn. The trial judge explained why he drew the inference that he did. Given the record before him, the inference was a reasonable one.

Adequacy of Reasons

[32] The appellant submits that the trial judge’s reasons were inadequate and in particular were deficient because the trial judge did not explain why he rejected the appellant’s evidence. Counsel for the appellant submits that the appellant “cannot know from the reasons or comments during the trial why his credibility is suspect”. I would not give effect to this ground of appeal.

[33] As the Supreme Court of Canada has held repeatedly, failure to give adequate reasons is not a free standing basis for an appeal: see, for example, F.H. v. McDougall, 2008 SCC 53, at para. 99. While one purpose of reasons is to allow for proper appellate review, if the appellate court can nevertheless discern the basis for the trial judge’s conclusion then the submission that the reasons are inadequate will fail.

[34] In R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at para. 55, Binnie J. explained, in the context of a criminal case, that an accused should not be left in doubt about why a conviction has been entered and reasons for judgment may be important to clarify the basis for the conviction. However, he also held that the basis for the conviction may be clear from the record. Similarly, I accept that in this case the appellant should not be left in doubt about why his application was dismissed. However, I am also satisfied that it is apparent from the record why the application was dismissed. The trial judge expressly stated that he found the evidence of all the parties, which would include the appellant, unreliable.

[35] When one reviews the record, the reasons for finding the appellant’s evidence unreliable are apparent. First, his trial testimony on important issues was inconsistent with statements in his affidavits. I have outlined these inconsistencies above in paragraph 23. The trial judge expressed on the record dissatisfaction with the appellant’s credibility when he pointed out that these inconsistencies were on vital matters and asked the appellant if he had sworn to tell the truth when making his affidavits. The appellant could not have been surprised that the trial judge did not accept his evidence.

[36] There were other problems with the appellant’s evidence, including his inconsistent evidence as to whether he drank and his assertion that he and McBain were constantly together. These were not minor issues. His drinking and his demand for more money from McBain to continue drinking the night of February 20 led, according to McBain, to the physical altercation which precipitated the end of sexual relations. His exaggerated assertion that he and Ms. McBain were constantly together was an obvious attempt to demonstrate that there was no opportunity for McBain and Ralph to have had sexual relations.

[37] Finally, the appellant’s testimony was inherently improbable in at least two important respects. He claimed that Ms. McBain was trying to get pregnant. However, he later admitted that she hid the pregnancy from the CAS because she was afraid she would lose her other children. It seems unlikely that Ms. McBain would be seeking to get pregnant if she was worried about losing her other children. Moreover, the appellant’s claim that the CAS found out about the pregnancy when Ms. Jefferies confronted McBain about the rumours was itself contradicted by Ms. Jefferies’ evidence that she found out about the pregnancy when the appellant told her about it in the absence of Ms. McBain.

[38] Second, as part of the claim that Ms. McBain was trying to get pregnant, the appellant testified that Ms. McBain did a home pregnancy test; yet he gave wholly inconsistent answers about the test, claiming it was negative, then unclear and then apparently positive. It is in fact more likely that Ms. McBain found out about the pregnancy when she went to see Dr. Amimi about having a tubal ligation. That Ms. McBain wanted a tubal ligation also seems more consistent with her concern about the CAS and losing her children. Even the appellant acknowledged that Ms. McBain had discussed having a tubal ligation.

[39] To conclude, the unreliability of the evidence of the appellant, Ralph and Ms. McBain is obvious from the transcript. Even without the advantage enjoyed by the trial judge of having seen and heard the witnesses, there is no mystery as to why the trial judge dismissed the application and the cross-application. The appellant’s evidence was inconsistent in numerous respects. Ms. McBain’s evidence was likewise inconsistent in important areas. Finally, Mr. Ralph was an unreliable witness. He had a lengthy criminal record for crimes of dishonesty and his testimony as to how he found out he was the father of the child is at least peculiar.

DISPOSITION

[40] Accordingly, I would dismiss the appeal without costs.

Signed: “M. Rosenberg J.A.”

“I agree S. Borins J.A.”

“I agree E.E. Gillese J.A.

RELEASED: “MR” November 18, 2008