King v. Mongrain, 2009 ONCA 486

CITATION: King v. Mongrain, 2009 ONCA 486

DATE: 20090615

DOCKET: C50008

COURT OF APPEAL FOR ONTARIO

Doherty, Rosenberg and Gillese JJ.A.

BETWEEN

Mark King

Applicant (Respondent)

and

Tammy Mongrain

Respondent (Appellant)

Michael F. Sirdevan, for the appellant

Peter A. Douglas, for the respondent

Heard: June 1, 2009

On appeal from the order of Justice J. Robert MacKinnon of the Superior Court of Justice dated January 8, 2009.

Reasons for Decision

Gillese J.A.

[1] Tammy Mongrain, the appellant, and Mark King, the respondent, have two children: Faith Erin King and Liam Thomas King. Faith was born on February 27, 2006, and Liam was born on August 6, 2007. Faith is currently three years old and Liam is not yet two.

[2] Ms. Mongrain was a registered nurse working in North Bay, Ontario, when she became pregnant with Faith. In July 2006, approximately five months after Faith was born, Ms. Mongrain moved to Barrie to live with Mr. King in a home owned by him. They separated on January 26, 2008, but reconciled and resumed cohabitation in March or early April, 2008.

[3] On July 11, 2008, Ms. Mongrain left the home and took the children with her. According to Ms. Mongrain, she fled to a women’s shelter because of continued violence at the respondent’s hands and his drinking. According to both parties, she very quickly moved to Quebec where her family of origin has lived for many years.

[4] On August 1, 2008, Mr. King started an application in the Superior Court of Justice. He sought blood testing to determine Liam’s paternity, custody of Liam if he was the father, custody of Faith in any event, and child support. By the time of the application, Ms. Mongrain had already moved to Quebec.

[5] On August 18, 2008, Ms. Mongrain started custody and access proceedings in the Quebec Superior Court.

[6] Mr. King brought a summary judgment motion. On September 25, 2008, Boswell J. issued an interim order requiring Ms. Mongrain to immediately return the children to the County of Simcoe, Ontario and to provide Mr. King with access every weekend, from 5:00 p.m. on Friday to 5:00 p.m. on Sunday. Mr. King’s motion was adjourned to November 27, 2008.

[7] Ms. Mongrain did not comply with this order.

[8] On October 15, 2008, in recognition of Ontario’s jurisdiction over the children, the Quebec Superior Court upheld the order of Boswell J., dated September 25, 2008. As a result, Ms. Mongrain was required to return the children to the Count of Simcoe and give Mr. King access to them.

[9] Ms. Mongrain did not comply with this order.

[10] Because of Ms. Mongrain’s ongoing breach of the court orders, on November 27, 2008, Boswell J. ordered that Mr. King would have interim custody of the children. He gave Ms. Mongrain ten days in which to file responding materials to the summary judgment motion, “failing which [Mr. King] may proceed in default with a motion for uncontested trial.”

[11] Ms. Mongrain filed her responding materials within time. However, she did not give the children to Mr. King. In her responding materials, she states that after moving to Quebec, she went to a police station and gave video statements of the assaults committed by Mr. King against her that she could remember most specifically. In her affidavit, Ms. Mongrain describes several incidents of physical and verbal abuse. She recalls having her head repeatedly driven into the headboard of the bed. She also says that Mr. King once held a sledge hammer and told her that he would either hit her or the car in which she had intended to drive and pick up a friend. Ms. Mongrain also says that after she spoke with another man while she was on a day-long boat excursion with Mr. King, Mr. King told her that if he ever caught her with another man he would kill the other man in front of her and then kill her.

[12] As a result of the allegations, Mr. King was charged with a number of offences. In the materials filed by Mr. King with the court on these proceedings, he states that he has retained counsel to defend the following criminal charges:

Assault – July 1, 2005, to July 31, 2005

Assault – July 7, 2006

Assault – April 1, 2007 to April 30, 2007

Assault – March 20, 2007 to June 21, 2007

Assault – September 1, 2007 to September 30, 2007

Assault – December 1 to December 31, 2007

Assault – June 29, 2008

Assault with a weapon – October 15, 2007

Utter threat.

[13] Mr. King describes the “majority of the charges” as “historical in nature”.

[14] Ms. Mongrain also deposed that: Mr. King has a drinking problem; she has cared for the children throughout their lives; and, in July 2008 when she left the home she shared with Mr. King, she had not worked for two years and no longer had a license to work as a nurse in Ontario. She had no money and understood that she had no right to live in the home because she was not on title and was not married to Mr. King. It was in that context that she left the women’s shelter and returned to Quebec.

[15] Ms. Mongrain further deposed that during the parties’ first separation, the Children’s Aid Society (“CAS”) had been involved. At that time, CAS told her that she was not to let Mr. King have the children until an agreement had been reached and that the agreement was to include CAS as a party. Access by Mr. King to the children during the separation had been resolved by means of a voluntary services agreement with the CAS.

[16] On December 18, 2008, Ms. Mongrain was ordered to immediately deliver the children into Mr. King’s custody, failing which her answer would be struck and Mr. King could proceed to secure a final judgment by way of uncontested trial.

[17] Still Ms. Mongrain did not comply and deliver the children.

[18] On January 8, 2009, Ms. Mongrain attended court with two lawyers – her lawyer at the time, and Mr. Winnitoy, whom she wished to retain. Mr. Winnitoy sought an adjournment to enable Ms. Mongrain to file further materials and undertook that if the adjournment was granted, he would go on record. The adjournment request was refused since the motion judge had no confidence that Ms. Mongrain would comply with the prior orders.

[19] Two orders were made that day. In the first order, on consent, counsel for Ms. Mongrain was removed from the record. The first order also required Ms. Mongrain to deliver the children to Mr. King by 7:00 p.m. that day (the “first order”).

[20] The second order of January 8, 2009, is the subject matter of this appeal (the “Order”). It struck Ms. Mongrain’s pleadings and made a final order giving sole custody of the children to Mr. King. It gave Ms. Mongrain supervised access, or access as arranged in writing by the parties or their counsel, or as subsequently ordered by the court.

[21] That same day – January 8, 2009 – Ms. Mongrain delivered the children to Mr. King, as required by the terms of the first order.

ANALYSIS

[22] Ms. Mongrain has been in flagrant disregard of court orders. Her counsel candidly admits that she is wrong in this and does not attempt to excuse her refusal to comply with the court orders. However, he argues that the motion judge erred in making a final custody and access order because it was done without considering the best interests of the children. He also submits that the motion judge erred in striking Ms. Mongrain’s pleadings.

[23] I agree that the motion judge erred in making a final custody and access order. Even if the appellant’s conduct justified an order striking her pleading, the respondent’s material did not provide a basis on which the motion judge, acting in accordance with the relevant statutory provisions, could determine that a final custody order in favour of the respondent was in the best interests of the children.

[24] Section 24(1) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (the “Act”), makes it mandatory that custody and access be determined on the basis of the best interests of the child and in accordance with the criteria set out in ss. 23(2), (3) and (4). Those subsections provide as follows:

(2) The court shall consider all the child’s needs and circumstances, including,

(a) the love, affection and emotional ties between the child and,

(i) each person entitled to or claiming custody of or access to the child,

(ii) other members of the child’s family who reside with the child, and

(iii) persons involved in the child’s care and upbringing;

(b) the child’s views and preferences, if they can reasonably be ascertained;

(c) the length of time the child has lived in a stable home environment;

(d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

(e) any plans proposed for the child’s care and upbringing;

(f) the permanence and stability of the family unit with which it is proposed that the child will live;

(g) the ability of each person applying for custody of or access to the child to act as a parent; and

(h) the relationship by blood or through an adoption order between the child and each person who is a party to the application.

(3) A person’s past conduct shall be considered only,

(a) in accordance with subsection (4); or

(b) if the court is satisfied that the conduct is otherwise relevant to the person’s ability to act as a parent.

(4) In assessing a person’s ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,

(a) his or her spouse;

(b) a parent of the child to whom the application relates;

(c) a member of the person’s household; or

(d) any child.

[25] In his reasons, the motion judge said that he had considered the materials, including Ms. Mongrain’s responding material (even though it would be struck), and concluded that it would be just and appropriate to make a final order. He then made the orders described above. He said nothing else about custody or access. No reference was made to the best interests of the children or to any of the s. 24 factors.

[26] Mr. King’s motion materials are completely bereft of information addressing the requirements in s. 24(2) of the Act. His affidavits disclose the dates on which the parties cohabited, the criminal charges he faces in respect of the alleged acts of violence against Ms. Mongrain, some procedural aspects of this matter and some financial information about the parties. He is a self-employed welder and has been self-employed since June 2002; Ms. Mongrain was a registered nurse in North Bay before going on maternity leave in January 2006.

[27] The only information provided in Mr. King’s materials in relation to the children is as follows. Mr. King is the children’s biological father. Liam has always resided in Barrie, Ontario. Faith resided in North Bay, Ontario until early summer 2006 and thereafter in Barrie. Mr. King has a close, loving relationship with the children. Since separation in July 2008, he has been denied all contact with the children.

[28] On my review of the criteria in s. 24(2) of the Act, at most, that information partially addresses the matters in clause s. 24(2)(a). There is no information in Mr. King’s materials in relation to the balance of the criteria in s. 24(2).

[29] If Ms. Mongrain’s responding materials are considered, in accordance with s. 24(3) and (4) the court was obliged to consider the alleged violence against her by Mr. King and whether that conduct was relevant to Mr. King’s parenting ability. Ms. Mongrain’s materials also show that she has been the primary caregiver for these children since birth. There is nothing to suggest that Ms. Mongrain is an unfit parent.

[30] The motion judge had the power to strike the appellant’s pleadings due to her repeated refusals to obey court orders: see rule 14(23) of the Family Law Rules, O. Reg. 114/99. I have every sympathy for the court which had given Ms. Mongrain a number of opportunities to participate, to be heard, and to assist in the proper resolution of this matter.

[31] At the same time, however, courts should use the utmost caution in striking pleadings where children’s interests are involved and it is generally preferable to avoid using that sanction: see, for example, Haunert-Faga v. Faga (2005), 203 O.A.C. 388 (C.A.). The reason for that admonition is simple – in order to make custody and access decisions in the best interests of the child, the court needs the participation of both parties. Thus, while this court upheld the first instance decision to strike the pleadings of the husband in Faga, two things must be noted. First, the pleadings were largely about financial matters, although there were limited parts on custody and access. Second, and very significantly, as the court noted at para. 7 of its reasons, the Office of the Children’s Lawyer would represent the children’s interests in the proceedings. Accordingly, the court was assured that the information necessary to make custody and access decisions in the children’s best interests would be before it.

[32] Appellate courts are to give considerable deference to the decisions of trial judges on custody and access. An appellate court is not to overturn a custody order in the absence of a material error, a serious misapprehension of the evidence or an error in law. Deference is owed because trial judges, having heard the parties testify, are in the most advantageous position to determine the best interests of the child. See Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014 at paras. 11-12.

[33] Even when a custody order is made on the basis of written and documentary evidence, deference is owed although the threshold for appellate intervention may not be as high because of the absence of oral testimony: Snetzko v. Snetzko (1996), 23 R.F.L. (4th) 448 (Ont. Ct. J. (Gen. Div.)): Bryant v. Hayes (1997), 151 Nfld. & P.E.I.R. 261 (Nfld. C.A.), at para. 12.

[34] The rationale for deference does not exist in the present case, as there was no trial and, if Ms. Mongrain’s evidence is struck, there is almost a complete absence of written evidence.

[35] In any event, in my view, it is a material error to make a final custody order in the absence of evidence on virtually all of the factors listed in s. 24 of the Act.

[36] This is not a situation in which an appellate court is attempting to substitute its view of the evidence or a different weighing of the factors – an appellate court is not entitled to overturn a custody order on that basis: Coyle v. Danylkiw, [2006] O.J. No. 2061 (C.A.). If Ms. Mongrain’s pleadings are excluded from consideration, there was insufficient evidence before the motion judge on which to determine the issue of final custody of the children. If Ms. Mongrain’s pleadings are included, the motion judge failed to weigh the s. 24 factors called into play by her evidence. These are very young children who have spent all but the last few months in the full-time care of their mother. Should Ms. Mongrain’s affidavit evidence prove true, it offers a reasonable basis for concern about her safety and that of the children. There is no evidence that the children ever lived alone with Mr. King prior to Ms. Mongrain delivering them to him in January. There are ongoing criminal proceedings relating to alleged acts of violence by Mr. King against Ms. Mongrain. While an appellate court should not interfere in the weighing of relevant factors by a trial judge, intervention is required when the relevant factors have not been addressed, there is a paucity of evidence on those factors and that which does exist raises matters of serious concern for the children’s best interests.

[37] There was some suggestion that the Order should be permitted to stand and Ms. Mongrain could bring a variation application should circumstances change. Since I have concluded that the motion judge erred in striking Ms. Mongrain’s pleadings and awarding final custody to Mr. King, strictly speaking I need not address this issue. However, it is worth noting that there would be a number of procedural and substantive disadvantages in proceeding in this fashion, rather than having the matter adjudicated on its merits. If the matter returns to the family court in Barrie and proceeds in the normal fashion, a first case conference will be held. At that time, in addition to other things, a timetable will be set, the parties will be given parenting information, onsite mediation will be offered through the courts and steps will be taken to ensure that the requisite information to determine the best interests of the children will be before the court. As the matters of custody and access will not have been finally determined, there is every incentive for both parties to co-operate fully in that process. Mr. King would suffer no prejudice because the children now reside with him and the interim custody order of November 27, 2008, remains in effect.

[38] If, on the other hand, the Order stands and Ms. Mongrain must proceed by way of a variation application, the parties (and the children) would lose the benefit of the process established by the Family Law Rules. Ms. Mongrain would bear the burden of proof of establishing a material change in circumstances as a threshold issue. The court hearing the variation application would be required to assume that the Order is correct and could consider only the change in circumstances, if any, since the Order was issued: Gordon v. Goertz, [1996] 2 S.C.R. 27, at para. 11. While there would never have been an adjudication on the merits on the matter of custody, the doctrine of res judicata may prevent Ms. Mongrain from re-litigating the matters dealt with in the Order.

DISPOSITION

[39] Accordingly, I would allow the appeal, set aside the Order, reinstate the appellant’s pleadings and order that the matter be remitted to the Family Court of the Superior Court of Justice at Barrie, on an expedited basis, for a determination of the issues of custody and access. I would make no order as to costs of the appeal.

RELEASED: June 15, 2009 (“D.D.”)

“E.E. Gillese J.A.”

“I agree Doherty J.A.”

“I agree M. Rosenberg J.A.”