COURT OF APPEAL FOR ONTARIO

CITATION: B.V. v. P.V., 2012 ONCA 262

DATE: 20120425

DOCKET: C53806

Sharpe, Armstrong and Rouleau JJ.A.

BETWEEN

B.V.

Applicant (Appellant)

and

P.V.

Respondent (Respondent in Appeal)

Tom Bastedo Q.C., for the appellant

Randy S. Brant and M. Alysha McColl, for the respondent

Heard: March 30, 2012

On appeal from the judgment of Justice C. William Hourigan of the Superior Court of Justice, dated April 29, 2011, with reasons reported at 2011 ONSC 2697, [2011] O.J. No. 1957.

By the Court:

[1] This appeal involves issues of custody, access and spousal support.

[2] The parties were married on August 31, 1996 and separated on July 24, 2008. They have two children, Z.V., born on December 24, 2001 and E.V., born on May 15, 2007. Following a nine-day trial, the trial judge awarded sole custody of the two children of the marriage to the respondent P.V. with minimal access to the appellant B.V. B.V. was also ordered to pay spousal and child support and costs to P.V.

[3] The trial judge provided full reasons setting out the history of the marriage and its breakdown. It is not necessary for us to repeat those findings here but we will mention some of the facts pertinent to the issues we must decide.

[4] P.V. has not worked outside the home since the birth of Z.V. and she has always been the primary caregiver to both children. P.V. has experienced significant health problems and she has suffered from depression. However, the trial judge found that these issues did not adversely affect her ability to parent. The trial judge found that she offers the children a warm and loving home environment. The trial judge also found that P.V. had taken a proactive approach to Z.V.’s special educational needs and that she was very involved with his schooling.

[5] P.V. obtained Masters and PhD degrees during the marriage and has a well-paying job as a statistician. He has remarried and he and his new wife have a child. While he now shows considerable interest in Z.V. and E.V., during his marriage with P.V. he was preoccupied with work and his studies. The trial judge expressed concerns that B.V. had belittled P.V., that he failed to respect her opinions and ability to make decisions, and that he had difficulty controlling his emotions.

[6] B.V. appeals the order below, seeking joint custody or increased access to the children and reduced spousal support.

Joint custody

[7] We agree with B.V.’s submission that the trial judge appears to have made a material error in finding that if granted custody, B.V. would move Z.V. from the school he was attending in Guelph. The trial judge described this as the “one overriding factor” which led him “to conclude that custody should be awarded to the respondent”. In his evidence, B.V. made it very clear that he was willing to accommodate Z.V. staying at his current school in Guelph if that was in Z.V.’s best interests.

[8] However, B.V. no longer seeks sole custody and we are not persuaded that the trial judge’s error in relation to rejecting B.V.’s claim for sole custody has any bearing on the decision to refuse joint custody, which is the order B.V. now seeks.

[9] To have custody of a child is to have decision-making responsibilities in relation to the child’s care and upbringing. Good communication between parents is relevant to the appropriateness of a joint custody order. In our view, the trial judge, who had the benefit of seeing and hearing the parties over the nine-day trial, gave adequate reasons for refusing to order joint custody. He found, at paras. 58-60 of his reasons:

This is not an appropriate case for an order for joint custody. As noted by the Ontario Court of Appeal in Kaplanis v. Kaplanis (2005), 2005 1625 (ON CA), 194 O.A.C. 106 (C.A.), a mere hope for better communications between parents after the litigation has ended is not a sufficient basis to order joint custody.

Based on the evidence before me, there is no indication that the parties could effectively co-parent the children. This is a case rife with conflict between the parents and with serious allegations levelled against each other.

In my view, an order for joint custody would not be in the children's best interests and would only lead to further conflict between the parents.

[10] Those findings were amply supported by the evidence and justified the conclusion that given the lack of communication and cooperation between these parties, joint custody was not a viable option.

Access

[11] Prior to trial, there were considerable difficulties with respect to access. B.V. asserts that P.V. did not cooperate in affording him access to the children. P.V. asserts that B.V. demonstrated little interest in the children. Regrettably, it would appear that neither party was able to realize that a cooperative approach was in the best interests of their children. However, by the time of trial, a consent access order was in place and the parties were able to cooperate to some considerable extent. In particular, they have been able to cooperate in addressing the most serious challenge they face with respect to their children, namely Z.V.’s educational and social challenges.

[12] As we have noted, the trial judge identified the educational needs of Z.V. as having overriding importance. B.V. consented to P.V.’s motion to admit as fresh evidence the post-trial report of a psychologist outlining in some considerable detail Z.V.’s specific emotional and educational needs.

[13] The trial judge recognized the importance of increasing B.V.’s access to the children beyond the terms that had been agreed to pending trial. At para. 82 of his reasons, he stated:

In terms of access, it is important that access be significantly increased to the applicant. In particular, increased access will help to facilitate and build the applicant's relationship with his children, which relationship has been adversely affected by the respondent's conduct as aforesaid. Moreover, I believe that the applicant can play a significant role in helping [Z.V.] with his studies and in addressing some of the academic challenges he is facing.

[14] Despite this finding, the trial judge granted what amounts to minimal access:

(a) every other weekend from Friday at 3:00 p.m. to Monday at 8:30 a.m., to be extended to Tuesday at 8:30 a.m. on a long weekend not dealt with specifically herein;

(b) every Wednesday from 3:00 p.m. to Thursday at 8:30 a.m.;

(c) commencing in the summer of 2011, three weeks of summer holidays (only two of which can be consecutive) and further, the respondent shall have two weeks of summer holidays uninterrupted by access. The parties shall agree each year by May 31st as to which weeks of holidays they will be taking and failing agreement, the applicant shall have first choice in 2011 and odd numbered years thereafter, and the respondent shall have first choice in 2012 and even numbered years thereafter;

(d) irrespective of the access schedule, the children shall always be in the care of the respondent on Mother's Day and always be in the care of the applicant on Father's Day;

(e) the parties shall share time at holidays, including Easter, Thanksgiving, Christmas and March Break as agreed; and

(f) such further and other access as agreed by the parties.

[15] We agree with B.V.’s submission that the trial judge erred by awarding minimal access. In our respectful view, the terms of access ordered by the trial judge fail to respect the “maximum contact principle” contained in s. 16(10) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), directing the court to give effect “to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child”. See also Gordon v. Goertz, 1996 191 (SCC), [1996] 2 SCR 27.

[16] The trial judge did not identify any compelling reason for limiting B.V.’s access to the extent that he did. Indeed, the trial judge’s findings at para. 82, quoted above, support a more generous access order. B.V. has both a high level of education and a stable and welcoming family arrangement with his new wife and child into which Z.V. and E.V. have already been partially integrated. It is apparent to us, particularly from the fresh evidence, that Z.V. would benefit from greater contact with B.V. who has the capacity to assist Z.V. with his special educational needs.

[17] On the other hand, in view of the trial judge’s findings that B.V. tends to be controlling, over-bearing and disrespectful of P.V., we do not agree with the submission that access on a 50% basis would be in the best interests of these children. There is no basis to disturb the trial judge’s finding that P.V. should remain the parent with whom the children spend most of their time.

[18] However, as we have explained, the minimal terms of access are not supportable on the facts of this case, and, taking into account all the circumstances and the principle of maximum contact consistent with the best interests of the children, the appropriate access order would allow B.V. to have significant continuing involvement with the children throughout the year and particularly during the school year. As a result, we order that B.V. be granted access to the children for 35% of the time, so that they will spend the remaining 65% of the time with P.V. Counsel indicated that if the terms of access were changed, they would be able to work out the details. If there is any difficulty in that regard, we will receive brief written submissions.

Spousal Support

[19] The trial judge ordered mid-level spousal support under the Spousal Support Guidelines, finding that B.V. had the means to pay support at that level and that P.V. had suffered disadvantage from the breakdown of the marriage while B.V. had benefitted from improvements to his education and career. We are not persuaded that the trial judge erred by failing to reduce the level of spousal support on account of B.V.’s remarriage and new child or that the trial judge erred by adopting the “first-family-first” approach in the circumstances of this case.

Disposition

[20] For these reasons, the appeal is allowed only to the extent that B.V. is to be afforded access to the children on a 35% basis. The appeal is otherwise dismissed. In view of the divided success, the parties are to bear their own costs of this appeal.

“Robert J. Sharpe J.A.”

“R.P. Armstrong J.A.”

“Paul Rouleau J.A.”

Released: April 25, 2012