COURT OF APPEAL FOR ONTARIO

CITATION: Jackson v. Arthur, 2015 ONCA 902

DATE: 20151218

DOCKET: C60207

MacPherson, Sharpe and van Rensburg JJ.A.

BETWEEN

Kurt Delroy Jackson

Applicant (Respondent)

and

Vida E. Arthur

Respondent (Appellant)

Anthony Macri, for the appellant

Robert A. Fernandes, for the respondent

Heard: December 17, 2015

On appeal from the order of Justice Leonard Ricchetti of the Superior Court of Justice, dated February 23, 2015.

ENDORSEMENT

[1] The appellant mother, Vida Arthur, appeals the Order of Ricchetti J. of the Superior Court of Justice dated 23 February 2015, awarding sole custody of two children (ages 12 and 9) to the respondent father.

[2] At trial, the parties agreed that the best custodial arrangement for their two children was sole custody to one parent because of their deeply acrimonious and dysfunctional relationship. After a seven day trial, the trial judge awarded sole custody to the respondent with generous access to the appellant. The appellant appeals on several grounds.

[3] First, the appellant submits that the trial judge erred by hearing evidence in the absence of the self-represented mother. After the first two days of trial, the appellant did not show up for the third day. She went to hospital but did not contact anyone at the court to explain her absence. The court made unsuccessful efforts to find her. In these circumstances, the trial judge allowed the trial to continue. The father’s final witness testified. The appellant submits that the trial judge should have adjourned the hearing, at least for a day.

[4] We do not accept this submission. The appellant made no effort to contact the court for six days. Moreover, the father’s final witness testified about property issues which are not relevant to this appeal.

[5] The second ground of appeal relates to comments made by the trial judge once the trial resumed following a ruling by the trial judge. The appellant asserts that the trial judge’s comments created a reasonable apprehension of bias. The source of this bias was the trial judge’s comments blaming the appellant for her absence from the trial and his unwarranted skepticism about her explanation for her absence.

[6] We disagree. When the trial resumed, the appellant was represented by counsel who made no objection based on the discussion between the trial judge and counsel about how the trial would proceed given that the appellant’s new counsel would need some time to prepare. We have reviewed that discussion and see nothing even troubling about the trial judge’s comments; they certainly are far removed from raising a legitimate issue of potential bias.

[7] Third, the appellant asserts that the trial judge demonstrated bias by ordering an equal division of parenting time once the trial resumed.

[8] We do not accept this submission. In his June 30, 2014 endorsement, the trial judge said:

Ms. Arthur’s counsel does not dispute an equal division of parenting. The only dispute is when this starts as it may affect the total number of weeks to one parent.

There will be an equal parent time until further order of this court. Commencing Thurs. July 3, 2014 the father shall have one week with the children. The change in parenting time shall be exchanged every Thursday. To be clear, this will continue until further order of this court.

[9] In our view, this order reflects the parties’ shared view at the time it was made. On this appeal, the appellant concedes that she supported this order for the period of summer 2014. However, she asserts that she did not agree that it continue once school resumed. The answer to this submission is that the appellant could have invoked the “until further order of the court” portion of the order to raise this issue. She chose not to do this. Nor did she raise any objection relating to apprehension of bias.

[10] Fourth, the appellant contends that the trial judge erred by ignoring evidence of the appellant’s good parenting and by failing to give sufficient weight to evidence relating to domestic violence in the parties’ relationship.

[11] These were factual issues. The trial judge did not ignore evidence of the appellant’s good parenting. Indeed, his ultimate conclusion was that both parents were good parents and could be given sole custody. On the father’s violence issue, the trial judge accepted the evidence of Peel Children’s Aid Society that “the father’s inappropriate disciplining of the Children has been dealt with.”

[12] Fifth, the parties agree that there was a miscalculation of child support arrears up to July 1, 2014. The correct number is $15,120.25.

[13] The appeal is dismissed on all issues but one. On arrears of child support, the amount owed by the respondent to the appellant on July 1, 2014 was $15,120.25.

[14] The respondent has been substantially successful on the appeal. He is entitled to costs of the appeal fixed at $6,800, inclusive of HST and disbursements.

“J.C. MacPherson J.A.”

“Robert J. Sharpe J.A.”

“K. van Rensburg J.A.”