Court of Appeal for Ontario

Date: February 27, 2017 Docket: C62389

Judges: LaForme, Pepall and Pardu JJ.A.

Between

Matthew David Voisin Applicant (Appellant in Appeal)

and

Karen Ann Voisin Respondent (Respondent in Appeal)

Counsel

Glenda D. McLeod, for the appellant

John Opolko, for the respondent

Heard: February 23, 2017

On appeal from the order of Justice Flynn of the Superior Court of Justice, dated June 13, 2016.

Endorsement

[1] Matthew David Voisin appeals from an order of June 13, 2016 arising from a motion to change aspects of previous orders governing custody and access to two children. The parameters for that hearing were set by a consent order of April 21, 2016 which provided that the argument on the motion to change would be limited to the issue of whether an order in terms of recommendations #1, 5 and 6 contained in a report of the Office of the Children's Lawyer should issue, or whether "minor adjustments" requested by the father should be made to those terms. The parties agreed that the other recommendations could be incorporated into an order.

[2] The report of the Office of the Children's Lawyer noted that both parents originally claimed sole custody of the children and noted that long standing hostility between the parents was unlikely to dissipate and that the conflict was harmful to the children. The motion judge was concerned about the effect of the acrimony on the children, noting, "it may seem that the adults in this contest have lost sight of the principal objects of their affection and attention: the two children of the marriage."

[3] The report noted that the mother had had final decision making authority for more than four years pursuant to a previous judgment and that things were going well for the children. It observed that Ms. Voisin had maintained a stable residence and school for the children, that she had supported the relationship between the children and their father, followed the rather complex parenting schedule and kept the father informed about the children's welfare.

[4] The recommendations to which the mother agreed and the father wanted "minor" changes are as follows:

1. Ms. Voisin should have sole custody of the children, with a recommendation that she consult the father regarding major decisions related to the children before making the final decision.

5. The children should spend time with their father from Monday after school or 4:00 p.m. until Thursday morning at school or 9:00 a.m. The children should spend time with the mother from after school on Thursdays or 4:00 p.m. to Monday morning at school or 9:00 a.m., with the proviso that where Monday was a statutory holiday, the children should remain with the mother until Tuesday morning at school or 9:00 a.m.

6. To facilitate the shared parenting schedule, it was recommended that the parties live within 30 km. of each other.

[5] The motion judge noted that there had been no material change in circumstances. However, based on the consent of the parties to a determination of the issues as framed, he dealt with the father's proposed amendments to the recommendations. He indicated that the first recommendation in issue recognized and continued the de facto sole custody in the mother, and that the father's requested minor adjustment contradicted an arrangement to which he had already agreed, sole custody with the mother. The father argued that the second recommendation did not provide for decision making about the children while they were at school. The motion judge noted that the final decision making power on the part of the mother in the first recommendation dealt with this issue, and continued the arrangement established by the prior order that gave the mother final decision making authority.

[6] The preceding order prohibited either party from relocating the children's residence outside the cities of Kitchener-Waterloo. The motion judge noted the recommendation that the parties live within 30 km. of each other and took judicial notice that the distance along a LRT under construction between the two cities was 19 km.

[7] The motion judge did not err in making the decisions the parties asked him to make pursuant to the consent order. The motion judge had the benefit of a lengthy and very thorough report of the Office of the Children's Lawyer. There was an ample basis for him to conclude that the children's best interests were served by those recommendations. The previous final order of June 17, 2011 provided that the mother had the right to make major decisions for the children without the father's consent after consultation with the father, except for certain specified matters. The recommendation of the Office of the Children's lawyer continued this arrangement and slightly altered the matters that could not be changed without the father's consent.

[8] The father's position asserted many times before the motion judge and this court was that if there was no change in circumstances, no order should be made to alter the original order of June 17, 2011 providing for final decision making by the mother, except for specified matters which required his consent. This was inconsistent with his own request for certain changes to the previous order.

[9] The previous order of June 17, 2011 provided as follows:

5. Neither party shall relocate the children's residence outside the cities of Kitchener-Waterloo, Ontario

6(a) In September, 2011 the children shall attend the school in the catchment area where the Mother resides.

6(b) Save and except as set forth in subparagraph 6(a) herein, the Mother shall not change the children's school without the Father's prior written consent or order of the court.

7. The children shall continue to attend Dr. Kennel as their family physician unless both parties agree otherwise.

[10] The significant changes the father wanted to make to the recommendations made by the Office of the Children's Lawyer as submitted to the motion judge and to this court on appeal are as follows:

The Mother shall not change the children's school, doctors or dentist without the written consent of the father or an order of the court.

The children shall reside in the care and control of the father from Monday morning before school (or 9:00 a.m.) until Thursday afternoon after school (or 4:00 p.m.)

The father and mother shall live within 30 km. of each other and must remain resident in either the geographical jurisdiction of the City of Kitchener or the City of Waterloo.

[11] There was no dispute about the time the father was to spend with the children. He wanted that characterized as "care and control" of the children, despite his consent to sole custody in favour of the mother.

[12] The father's consent to sole custody in the mother was fundamentally inconsistent with the position advanced in his factum on appeal, and before the motion judge, that he should have care and control of the children while they were at school, from Monday mornings to Thursday afternoons.

[13] While the father argued on appeal that the regime established by the previous order of June 17, 2011 should remain in effect, absent demonstration of a material change in circumstances, he himself was proposing changes to that regime. Under the previous order the mother had the right to change the children's school, within the catchment area for her residence; his proposal would have further restricted the mother's choices.

[14] The proposal that his consent or a court order be required before the mother could change the children's dentist was a new restriction not present in the previous order.

[15] The father acknowledges that he had consented to sole custody in favour of the mother, but argues on appeal that despite that consent, he should have decision making power about the children while they are at school. Given the highly conflicted relationship between the parties referred to by the motion judge and the Office of the Children's Lawyer the motion judge did not err in refusing to create further opportunity for conflict. The father focuses on cases dealing with determination of whether a child is with a parent for 40% of the time so as to relieve that parent from some child support obligations, but those cases do not address whether it would be in the children's best interests to give him decision making power over the children while they are in school. The material before the motion judge did not support that position.

[16] The parties themselves consented to material changes to the previous order, as recommended by the Office of the Children's Lawyer, except for their arguments about recommendations 1, 5 and 6.

[17] Given the manner in which the parties placed their differences before him, it was open to the motion judge to concentrate on the best interests of the children.

[18] There is no basis to conclude that an order giving the mother the liberty to live within 30 km. of the father's residence rather than confining her to Kitchener or Waterloo is in any way detrimental to the children's best interests.

[19] The father suggests on appeal that the hearing before the motion judge was somehow procedurally unfair because of the way the arguments were made. There is nothing in the record that supports that suggestion. Both parties consented to the nature of the decision to be made. Each filed a factum. Their positions were fully before the motion judge who heard argument from both parties.

[20] The father also seeks leave to appeal from the motion judge's decision awarding the mother costs. The mother sought partial indemnity costs to December 9, 2015 and full indemnity costs thereafter because of her Offer to Settle made December 9, 2015.

[21] The motion judge observed that the father should have accepted the Offer to Settle.

[22] The father alleged that the mother had acted unreasonably, in a manner approaching bad faith because she changed the basis of her argument at the motion. The motion judge observed that if the father was taken by surprise he didn't "vigorously object at the hearing."

[23] He held that the mother was presumptively entitled to costs because she was substantially successful. Despite the mother's success the father sought costs of the motion from the mother of $31,302.54.

[24] The motion judge observed that despite the father's consent to sole custody, he now wished to resile from that position, and indicated that the father brought the motion because of his fear of "losing control of the entire process."

[25] Given the mother's success on the motion and her offer to settle, the motion judge did not err in granting her the costs she claimed.

[26] No reviewable error has been shown, leave to appeal costs is granted, but the appeal on the merits and as to costs is dismissed.

[27] Both parties characterized this appeal as a complex matter. The mother submitted a partial indemnity costs outline claiming $22,869.24, and the father's partial indemnity costs totaled $15,160.79. Neither party can afford this litigation. We are told that costs dealing with various matters between the parties over the years exceed $300,000. We can only reiterate the observations of the motion judge and the Office of the Children's Lawyer that this conflict has been harmful to the children and this family. Costs should follow the result of this appeal. There was a motion for an extension of time to appeal to which there should have been a consent. In all the circumstances, costs to the respondent mother of the appeal, all inclusive, fixed at $12,000.

H.S. LaForme J.A.

S.E. Pepall J.A.

G. Pardu J.A.