Court of Appeal for Ontario

Date: November 23, 2017 Docket: C62911

Justices: Sharpe, Epstein and van Rensburg JJ.A.

Between

Yakov Eitan Berman Applicant (Appellant in Appeal)

and

Alissia Berman Respondent (Respondent in Appeal)

Counsel

Michael Stangarone and Stephen Kirby, for the appellant

Dani Frodis, for the respondent

Heard and released orally: November 21, 2017

On appeal from: the order of Justice L.E. Fryer of the Superior Court of Justice, dated October 5, 2016.

Reasons for Decision

[1] Following an 11-day trial, the trial judge gave comprehensive reasons resolving issues of custody, access, support and equalization. The appellant raises four issues.

(1) Did the trial judge err by granting sole custody of the parties' child to the respondent?

[2] The appellant submits that the trial judge misapplied the test set out in Kaplanis v. Kaplanis (2005), 249 D.L.R. (4th) 620 (Ont. C.A.) and erred in failing to award joint custody. Alternatively, the appellant seeks an order for parallel parenting or an order for sole custody.

[3] In our view, the trial judge fairly considered the evidence and properly reviewed the relevant factors to conclude that it was in the best interests of the child that the respondent be granted sole custody. We see no error on the part of the trial judge that would permit this court to intervene.

[4] The trial judge did not misapply or elevate the Kaplanis test for joint custody. There was evidence to support her finding that the degree of cooperation and communication required by Kaplanis and other decisions of this court to warrant a joint custody order was not present.

[5] We do not accept the submission that joint custody must be ordered where there is "some evidence" of communication and cooperation. In all cases, it is for the trial judge to assess whether the parties' ability to cooperate and communicate effectively in making parenting decisions warrants a finding that joint custody is in the best interests of the child. The trial judge's assessment of that issue attracts deference in this court. Neither party requested parallel parenting. On this record, the trial judge cannot be faulted for failing to order joint custody or parallel parenting.

(2) Did the trial judge err by failing to consider or apply the maximum contact principle?

[6] The parenting schedule ordered by the trial judge took into account several factors, including the parties' respective work schedules and the history of their ability to communicate and cooperate with respect to the child.

[7] The trial judge observed that the respondent was prepared to ensure the appellant played an active role in the child's life. She created a schedule that, in her words at para. 83, "balances out the needs of stability, certainty and routine while ensuring that [the child] spends meaningful parenting time with her father".

[8] The order increased rather than decreased the appellant's parenting time with his child from the interim order. The appellant's concern is with the frequency of contact. The trial judge was best placed to determine the schedule that was in the best interests of this child. There is no basis upon which this court could properly interfere with her order.

(3) Did the trial judge err in her equalization award?

[9] The appellant submits that the trial judge erred in her date of marriage valuation of his interest in Buy Right Auto because of an alleged admission in the respondent's pleadings.

[10] The position in the pleadings of both parties with respect to valuation was unclear. However the trial judge's valuation corresponded with that provided by the appellant in his sworn financial statements and net family property statements. Her valuation was supported by the evidence and we decline to interfere.

[11] We agree with the respondent that the trial judge took into account the proper legal test regarding the presumption of resulting trust and the relevant evidence in concluding that the respondent's parents expected to be repaid a loan while the appellant's brother-in-law did not. Those were factual findings open to the trial judge. It was also open to the trial judge to find that the appellant had failed to demonstrate that he came to the marriage with over $50,000 in cash.

(4) Costs

[12] The trial judge awarded the respondent approximately 60% of the full indemnity costs she claimed. That award was amply supported by the trial judge's assessment of the respondent's success in the action and the conduct of the proceedings, including the respondent's offers to settle. Leave to appeal costs is granted but the costs appeal is dismissed.

Disposition

[13] For these reasons, the appeal is dismissed.

[14] Costs to the respondent fixed in the amount of $15,000, inclusive of disbursements and taxes.

"Robert J. Sharpe J.A."

"Gloria Epstein J.A."

"K. van Rensburg J.A."