C.S. v. M.S., 2010 ONCA 196

CITATION: C.S. v. M.S., 2010 ONCA 196

DATE: 20100316

DOCKET: C46361

COURT OF APPEAL FOR ONTARIO

Goudge, MacPherson and MacFarland JJ.A.

BETWEEN:

C.S.

Applicant (Respondent)

and

M.S.

Respondent(Appellant)

George Callahan, for the appellant

Sheilagh O’Connell, for the respondent

Heard: March 11, 2010

On appeal from the order of Justice Craig Perkins of the Superior Court of Justice dated November 17, 2006, with reasons released on February 27, 2007, and costs order dated May 31, 2007.

By the Court:

[1] The appellant, M.S. (the father), appeals the order of Perkins J. dated November 17, 2006, with reasons released on February 27, 2007, as well as a costs order dated May 31, 2007.

[2] Pursuant to s. 16 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), the trial judge ordered that the respondent, C.S. (the mother), have custody of the parties’ youngest child M, without access for the father or the other three children of the marriage (the siblings), who lived with their father and were alienated from, and had no contact with, their mother. In addition, pursuant to s. 46 of the Family Law Act, R.S.O. 1990, c. F. 3, and s. 35 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, the trial judge issued a restraining order forbidding the father to make contact directly or indirectly with his ex-wife or daughter M. Finally, the trial judge awarded the mother costs of $320,198.85, based in part on a finding of bad faith on the part of the father throughout the long and acrimonious litigation.

[3] The father appeals on 15 different grounds relating to a wide array of alleged factual and legal errors made by the trial judge. There is a good deal of overlap in the grounds of appeal and we do not propose to consider them individually.

[4] The trial judge presided over a long (18 days) and contentious trial with many witnesses and a mountain of documentary evidence. It is not our task to retry the case; we must approach the appeal with considerable respect for the task facing a trial judge in difficult family law cases, especially those involving custody and access issues. As expressed by Bastarache J. in Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014 at para. 13:

Custody and access decisions are inherently exercises in discretion. Case-by-case consideration of the unique circumstances of each child is the hallmark of the process. This discretion vested in the trial judge enables a balanced evaluation of the best interests of the child and permits courts to respond to the spectrum of factors which can both positively and negatively affect a child.

[5] As a preliminary matter, we observe that many of the grounds of appeal and much of the appellant’s argument dealt with the so-called “parental alienation syndrome”. In our view, this focus in the appellant’s case was misconceived. There is alienation between parent and child in the S family. The alienation is between the three oldest children (now adults) and the mother. This appeal, however, focuses on a different relationship, namely, the one between the child M and her father and, secondarily, her siblings. Uniquely, M is alienated from no one in her family.

[6] The focus of the trial was, as the trial judge recognized, on the best interests of the child M. The evidence in support of the no access order, at the time it was made in late 2006, was overwhelming. The father had taken aggressive and persistent steps to alienate his other children from their mother. The likelihood of this continuing with M if the father had access to her was virtually certain. The trial judge concluded that the risks to M if the father were given access were simply too great to serve her best interests. As expressed by the trial judge near the end of his comprehensive reasons:

Both the father and the two oldest children actively participated in the disobedience of the court order placing the third child in foster care during the investigation of very serious protection concerns. I have no reason to have confidence that the father or the older children would respect terms of a new access order, such as terms prohibiting negative comments about the mother or pressure on the child [M] to move to the father’s home, any more than they have respected previous court orders on various subjects. I note particularly the father’s attitude toward the order for reconciliation counselling involving the third child during the protection case. The father was having none of it, and neither was the child as a result. So it could never happen. I see no sign of positive change on the father’s part in promoting a reconciliation of the three oldest children with the mother.

[7] We agree with this description and conclusion. The inclusion in the access order of the other children who are alienated from their mother is justified by the finding that the father has engaged them in his cause and that they operate as a single camp. We also observe that there is nothing in the fresh evidence tendered by the father that would diminish the continuing applicability of the trial judge’s conclusion quoted above three years later. On these facts, which are extreme, the maximum contact between the appellant and M that is consistent with M’s best interests is no contact, subject to a material change in circumstances.

[8] The restraining order against the father strikes us as, in this unusual and troubling case, a logical and necessary corollary of the no access order. Again, there is nothing in the fresh evidence to challenge its continuing appropriateness.

[9] Finally, we affirm the costs award. It is a very large award. However, the father’s conduct of the litigation over several years and the simple reality of an 18-day trial led inevitably to huge lawyers’ fees on both sides. The mother won at trial and is, therefore, entitled to costs.

[10] Concerning the scale of costs, rule 24(8) of the Family Law Rules, O. Reg. 114/99 provides:

24(8) If a party has acted in bad faith, the court shall decide costs on a full recovery basis and shall order the party to pay them immediately.

[11] The trial judge reviewed the father’s conduct throughout the litigation, including persistent disobedience of court orders (including consent orders), and concluded:

In this case, the father has acted in bad faith over a long period of time, in relation to more than one issue, and on many occasions. The consequences of his bad faith have been a vastly prolonged and more expensive court case and vastly increased emotional damage.

[12] We agree with this description of the father’s conduct and its consequences. It justified an award of costs on a full recovery basis.

[13] The appeal is dismissed. The respondent is entitled to her costs of the appeal fixed at $10,000 inclusive of disbursements and GST.

RELEASED: March 16, 2010 (“S.T.G.”)

“S.T. Goudge J.A.”

“J.C. MacPherson J.A.”

“J. MacFarland J.A.”