Perron v. Perron, 2011 ONCA 776

CITATION: Perron v. Perron, 2011 ONCA 776

DATE: 20111209

DOCKET: M40603 (C51977)

COURT OF APPEAL FOR ONTARIO

Sharpe J.A. (In Chambers)

BETWEEN

Monique Denise Perron (now Waring)

Applicant (Respondent in Appeal) moving party

and

Joseph Ferdinand Dave Perron

Respondent (Appellant in Appeal) responding party

Counsel:

Aaron Franks and Michael Zalev, for the moving party (respondent in appeal)

Mark Power, François Larocque and Jo-Anne Thibodeau, for the responding party (appellant in appeal)

Heard: November 29, 2011

Motion for security for costs and adjournment in relation to the appeal from the judgment of Justice Alan C. R. Whitten of the Superior Court of Justice dated March 8, 2010, with reasons reported at 2010 ONSC 1482, 91 R.F.L. (6th) 110.

Sharpe J.A.:

[1] This motion for security for costs and for an adjournment arises from an appeal from a judgment granting the respondent sole custody of the parties’ three children. The order gives generous access to the appellant, affording him more or less equal time with the children, but denying him joint custody.

FACTS

[2] The trial judge provided very detailed reasons that explain why he found it to be in the best interests of these children to grant custody to the respondent and reject the appellant’s request for joint custody. The trial judge’s reasons include many adverse findings against the appellant. I will not recite those findings here but I observe that the trial judge categorically rejected the proposition that the appellant should be awarded joint custody and supported that decision with a long list of negative findings. Simply put, the trial judge did not see this case as a close call and instead took a dim view of the appellant’s conduct with respect to the respondent and their children.

[3] The central issue on appeal is whether the trial judge erred in the way he considered, and dealt with, the issue of the children’s language of education. The appellant is a Francophone and expresses a strong desire to have his children educated in French language schools. The respondent is English-speaking and the children are currently enrolled in a French immersion program. The trial judge found, as a fact, that the appellant had agreed to French immersion instruction. The appellant challenges that finding.

[4] The appellant views this appeal essentially as a constitutional case about language rights, while the respondent sees it as a case about the custody and best interests of their three children.

[5] It is important at the outset to put the motion for security for costs in its proper context. This was a hotly contested, ten-day trial on issues of custody, support and equalization of property. The appellant was ordered to pay the costs of the trial. In his reasons for granting costs, the trial judge was very critical of the way the appellant and his counsel conducted the litigation and ordered the appellant to pay costs of over $56,000. Forty per cent of those costs were allocated to support issues and are therefore enforceable through the Family Responsibility Office.

[6] Very shortly after the costs award, the appellant made an assignment in bankruptcy thereby eliminating all but a very small portion of the equalization award and all of the costs that are attributed to the litigation of the custody issue. I note here that the appellant also advances as a ground of appeal that the trial judge erred to the extent of approximately $3,000 in his equalization award. It is very difficult to see how the appellant can advance that ground of appeal in light of the bankruptcy.

[7] The appellant has secured a grant from Language Rights Support Program - Programme d’appui aux droits linguistiques (“PADL”) to conduct this appeal and the assistance of pro bono counsel to argue it.

ISSUES

[8] This motion raises the following two issues:

(1) In these circumstances, should I exercise my discretion in favour of the respondent and order the appellant to post security for costs of the appeal?

(2) Should the appeal be adjourned?

ANALYSIS

(1) Should the appellant be ordered to post security for costs?

[9] The respondent bases the request for security for costs upon rule 61.06 (1)(a) and (c) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194:

In an appeal where it appears that,

(a) there is good reason to believe that the appeal is frivolous and vexatious and that the appellant has insufficient assets in Ontario to pay the costs of the appeal;

(c) for other good reason, security for costs should be ordered,

a judge of the appellate court, on motion by the respondent, may make such order for security for costs of the proceeding and of the appeal as is just.

(a) Is there good reason to believe that the appeal is frivolous and vexatious?

[10] I turn first to an assessment of the merits of the appeal. While I would not go so far as to label the appeal as frivolous and vexatious, it is my view that it has a very low prospect of success.

[11] Counsel for the appellant identifies two alleged errors on the part of the trial judge which, they submit, raise a fundamental constitutional issue as to the interpretation of s. 23 of the Canadian Charter of Rights and Freedoms.

[12] Counsel submits first, that the trial judge erred by failing to appreciate the fundamental difference between French immersion and French language education. The second alleged error is that the trial judge failed to take into account the fact that if these children were not educated in French language schools, the appellant’s s. 23 right to have his children educated in French would not be transmitted to them, denying them their s. 23 right to have their future children educated in French. This would, in the appellants’ submission, lead to the inevitable cultural and linguistic assimilation of his children and his future grandchildren.

[13] I wish to state at the outset, that I have no doubt as to the sincerity and genuine conviction of counsel for the appellant as to the importance and merits of this appeal. Nor do I doubt the importance of securing French language education rights for Ontario’s French linguistic minority population as a means of preserving and transmitting the French language and culture in this province and of avoiding assimilation. These are clearly important issues that underlie s. 23 and attract the support of a considerable body of jurisprudence.

[14] As I will explain, however, on the record before this court, I think that it is very unlikely that this court will be persuaded either to grant the appellant joint custody or order the respondent to enrol these children in a French language school. I arrive at this conclusion of the following reasons.

[15] I do not agree that the trial judge failed to appreciate the significant difference between French immersion education and French language education. As his reasons reveal, he carefully considered the evidence led by the appellant as to that difference and, at para. 132 he specifically stated “[t]here is no doubt that a fully French school would advance the French language capabilities of the…children more so than at French Emersion [sic] school.” The trial judge also specifically recognized, at para. 130, that there is a direct link between the risk of assimilation and respect for minority language rights.

[16] The trial judge did not specifically mention or advert to the fact that if the children do not receive French language instruction, they will not acquire s. 23 rights to have their children receive French language instruction. Does that amount to an error of law that could provide this court with a basis for reversing or altering the custody judgment? In my view, the answer to that question is almost certainly no.

[17] The rights accorded by s. 23 of the Charter are, among others, rights of the parent, enforceable against the province, to have the beneficiary’s child “receive primary and secondary school instruction” in the minority language where the numbers criterion is met. Decisions regarding a child’s education are incidents of custody and the rights-bearer under s. 23 is the “the person with parental authority at the moment section 23 is invoked”: see Mark Power and Pierre Foucher, “Language Rights and Education” in Michel Bastarache, ed., Language Rights in Canada, 2nd ed. (Cowansville: Éditions Yvon Blais, 2004) 365, at p. 385. Section 23 confers no right on one parent, enforceable against the other parent, to insist that their children attend a French language school.

[18] However, this case, first and foremost, is about the best interests of three children. The trial judge recognized that the children’s education, language and culture formed a vital and integral element of the assessment of their best interests.

[19] The trial judge also recognized that the issue of language of education was one factor bearing on the determination of their best interests, but he properly concluded that it could not be the sole or the governing factor. While he did not specifically advert to the fact that if they were not educated in a French language school, they could not acquire and transmit s. 23 rights to their children, he clearly considered, as a significant factor, the importance to these children of learning French and maintaining their connection with the French culture. The trial judge specifically found, however, at para. 135, that the issue of language rights could not overcome the appellant’s “serious shortcomings…as a parent capable of sharing his children.” Having taken the language issue into account, he determined that the respondent should be awarded sole custody.

[20] In view of the very considerable deference owed to the trial judge’s findings as to the appellant’s deficiencies as a parent and as to the unsuitability of joint custody for these children, I consider it to be very unlikely that the panel hearing this appeal will intervene on the basis that he failed to pay adequate heed to the issue of language rights.

(b) Is this a case where security for costs should be ordered “for other good reason”?

[21] Although the case is not frivolous and vexatious, the low prospect of success is one of the factors that lead me to conclude that it is appropriate to order security for costs pursuant to rule 61.06 (c).

[22] The trial judge was critical of the appellant’s conduct of the trial and found that the appellant added unnecessarily to the length and cost of the trial. The appellant avoided his liability for the costs of the trial attributable to the custody issue that is the focus of this appeal. The respondent must resort to the Family Responsibility Office to secure payment of the appellant’s support obligations. The appellant’s PADL grant and the pro bono services of his counsel free him from any of the expense of advancing an appeal based upon a constitutional issue that I consider likely to fail.

[23] In my view, given the appellant’s conduct and the low prospect of success, it would be very unfair to expose the respondent to the risk that the appellant will not satisfy the costs of this appeal.

[24] I am not persuaded by the material filed by the appellant that he is impecunious and that an order for security for costs would deny him access to the court. The appellant is employed as a teacher and both he and his new partner earn a substantial income. Apart from his support obligations, he is essentially debt-free as a result of his bankruptcy.

[25] The respondent asks for security for costs in the amount of $20,000. In my view, the appropriate amount is $15,000. The respondent’s request includes added costs because the appellant has chosen to exercise his right to argue his appeal in French. He has a right to do so and I reject the suggestion that he should post security for any additional costs the respondent may incur on that account.

[26] The appellant is therefore required to post security for costs in the amount of $15,000 in the following instalments: $5,000 by December 31, 2011, $5,000 by February 15, 2012, and $5,000 by the date for oral argument. Should the appellant fail to post security in accordance with this timetable, the respondent is at liberty to move to have the appeal dismissed.

(2) Should the appeal be adjourned?

[27] The respondent also asks that this appeal, currently listed for hearing on December 21, 2011, be adjourned as work on the respondent’s factum was suspended pending this motion. This motion was served in October but difficulties for which both parties must take some responsibility resulted in it not being heard until November 29, 2011.

[28] In my view, a short adjournment is in order. I do not believe that this will result in any prejudice to the appellant for even if he is successful on the appeal, it seems highly unlikely that the panel would order or otherwise require an immediate change of schools for the children. Accordingly, the appeal is adjourned to a day during the week of March 26, 2012, to be fixed by the Registrar in consultation with counsel.

“Robert J. Sharpe J.A.”

RELEASED: December 9, 2011