COURT OF APPEAL FOR ONTARIO
CITATION: De Melo v. De Melo, 2015 ONCA 598
DATE: 20150904
DOCKET: C59650
Cronk, Lauwers and van Rensburg JJ.A.
BETWEEN
Donny De Melo
Appellant
and
Erin De Melo
Respondent
Counsel:
Donny De Melo, in person
Walter Drescher, for the respondent
Linda Feldman, for the Office of the Children’s Lawyer
Heard: August 31, 2015
On appeal from the judgment of Justice Harrison S. Arrell of the Superior Court of Justice, dated October 24, 2014, and the costs order of Justice Arrell, dated December 2, 2014.
ENDORSEMENT
[1] The parties married in 1999 and separated in 2011. There are two children of the marriage, now 15 and 13 years of age.
[2] By summary judgment dated October 24, 2014, H. Arrell J. of the Superior Court of Justice granted sole custody of the two children of the marriage to the respondent mother and access to the appellant father at the discretion of the children, based on their initiation, among other relief. By further order dated December 2, 2014, the motion judge also awarded costs to the mother in the amount of $20,000, inclusive of disbursements and taxes.
[3] The father, a self-represented litigant, appeals to this court from the motion judge’s rulings on custody and access. He raises several grounds of appeal.
[4] First, the father challenges the timing of the mother’s summary judgment motion. He argues that the motion should not have proceeded since, when the motion was brought in September 2014, the matrimonial action between the parties had already been placed on the trial list and scheduled for hearing in January 2015.
[5] We disagree. Under rule 16(1) of the Family Law Rules, O. Reg. 114/99, a motion for summary judgment may be brought in an action at any time after the respondent has served an answer or the time for serving an answer has expired. That is what occurred here. In this case, the mother had served an answer and, by consent order of the motion judge, the divorce claim was severed from the action.
[6] Further, contrary to the father’s submissions, there is no strict legal requirement that a motion for summary judgment be brought only before the conduct of a settlement or trial management conference. Nor did the mother’s motion seek to alter the existing status quo regarding custody and access. The children had resided with their mother on a full-time basis and had elected not to exercise their right of access to their father since the date of separation – a period of approximately three years. The relief sought by the mother, therefore, sought to maintain, rather than alter, the status quo.
[7] Second, the father submits that the motion judge erred in law by placing the onus on him to demonstrate that there was a genuine issue requiring a trial.
[8] Again, we disagree. The motion judge’s reasons indicate that he was satisfied that the mother had met her obligation under rule 16(4) to demonstrate that there was no genuine issue requiring a trial in respect of custody or access. The father was obliged to respond to the mother’s motion by providing evidence of specific facts showing that there was a genuine issue for trial: rule 16(4.1). The motion judge concluded that the father failed to meet his evidentiary burden. Indeed, he held that “[t]he evidence is overwhelming that there is no genuine issue for trial. The outcome of such a trial [on custody and access] is a certainty … .”
[9] This conclusion was open to the motion judge on the evidence, including the mother’s affidavit evidence, the affidavit evidence of John Butt – a clinical investigator with the Office of the Children’s Lawyer – and reports authored by Lourdes Geraldo – a reconciliation therapist – regarding the children’s circumstances, needs and preferences. Relying on this evidence, the motion judge applied the principles established in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 and concluded that he was able to make a fair and just determination of the custody and access issues without resort to a trial. He did not err in so concluding.
[10] Third, the father contends that the motion judge erred by failing to address the applicable criteria for determining the best interests of the children. In a related argument, he also maintains that the motion judge erred by failing to review all the relevant evidence concerning the children’s best interests. The father points particularly to evidence that he says established aggressive and assaultive conduct by the mother, alleged efforts by her to alienate the children, and asserted ineffectiveness and wrongful conduct by Ms. Geraldo, the reconciliation therapist.
[11] The motion judge’s reasons belie these contentions. They demonstrate that, in assessing the merits of the parties’ positions on custody and access, the motion judge considered the evidence of the needs and circumstances of the children in accordance with the factors described in s. 24(2) of the Children’s Law Reform Act, R.S.O. 1990, c. C-12. There is no basis to conclude that, in so doing, he failed to consider any material evidence. For example, he took account of the evidence of the parties, Mr. Butt and Ms. Geraldo regarding:
the mother’s primary parenting role since separation;
the children’s current circumstances, needs, progress and emotional well-being;
the children’s wishes and preferences, namely, their consistently expressed desire for the custodial arrangements with their mother to continue;
the need to accord considerable weight to the wishes of these teenaged children; and
the father’s claim that the mother had alienated the children from him and the children’s advice to the contrary, namely, that their mother has always encouraged their contact with their father.
[12] The motion judge recognized, correctly, that this is a high conflict matrimonial case; that joint custody is not appropriate in such cases except in exceptional circumstances; that such exceptional circumstances did not exist here, where the parties have no effective communication; that the ages of the children (15 and 13 years of age) and the custodial arrangements since separation strongly militated in favour of an award of custody to the mother; and that court-constructed access arrangements should not be imposed on teenaged children who have repeatedly confirmed that they do not wish contact with the non-custodial parent and that they wish to maintain existing custodial and access arrangements.
[13] Having considered the relevant evidence, the motion judge concluded that it was in the best interests of the children that sole custody be granted to the mother and that forcing access with the father against the wishes of the children “would be counterproductive, detrimental to their emotional well being and likely futile in any event”.
[14] The evidence overwhelmingly supported these conclusions. With respect to the issue of access, we note that the children’s opposition to court-ordered access was rooted in their own experiences with their father. They made it clear that they do not wish to see their father at the present time and they wish no further involvement in litigation or court-ordered interventions. The evidence established that the children are of sufficient age and maturity so as to warrant judicial respect for their positions on these matters.
[15] During oral argument, the father also challenged the motion judge’s failure to award him spousal support from the mother. On the record before us, it does not appear that the issue of spousal support was properly before or fully argued before the motion judge.
[16] Finally, the father also seeks to appeal from the motion judge’s costs award in favour of the mother. Although the father did not formally seek leave to appeal from the challenged costs award on a proper or timely basis, we have nevertheless considered his various grounds of attack on this award. The motion judge’s assessment of costs is a highly discretionary decision that attracts considerable deference from this court. As we are not persuaded that his costs award is either plainly wrong or tainted by an error in principle, there is no basis for appellate interference with it.
[17] For the reasons given, the appeal is dismissed. The respondent mother is entitled to her costs of the appeal, fixed in the amount of $5,000, inclusive of disbursements and applicable taxes. No costs are sought by or awarded in favour of the Office of the Children’s Lawyer.
“E.A. Cronk J.A.”
“P. Lauwers J.A.”
“K. van Rensburg J.A.”