Court of Appeal for Ontario

Date: 2018-07-18 Docket: C65148

Judges: Epstein, Lauwers and van Rensburg JJ.A.

Parties

Between

Vincenzo Mattina Applicant (Appellant)

and

Raffaella Mattina Respondent (Respondent)

Counsel

Martha McCarthy, Maureen Edwards and Lauren Hanna, for the appellant

Salvatore Garcea and Gloria Nardi-Bell, for the respondent

Hearing and Appeal

Heard: June 25, 2018

On appeal from the order of Justice Randolph Mazza of the Superior Court of Justice dated September 26, 2017, with reasons reported at 2017 ONSC 5704 and the costs order dated April 3, 2018.

Decision

Epstein J.A.

Overview

[1] The appellant father appeals the September 2017 custody and access order concerning his three sons. At the time of the decision S was 17, N was 15 and A was 10 years of age. Among other things, the motions judge made no order for custody of S, gave the respondent mother custody of N and A, with the father's access and communication with N at N's discretion and the father's access and communication with A, at A's discretion and in consultation with the mother.

[2] The father appealed the decision to the Divisional Court. In reasons dated March 7, 2018, and as an unfortunate consequence of the arbitrary and confusing appeal routes in this province, the Divisional Court held that it did not have jurisdiction over the matter and transferred the appeal to this court on an expedited basis.

[3] Based on the following analysis, I would dismiss the appeal.

Background

[4] The parties were married in 1998 and separated in 2013. This proceeding was commenced by the father in June 2013. In the course of the application, on consent of the parties, the court ordered a custody and access assessment under s. 30 of the Children's Law Reform Act, R.S.O. 1990, c. C.12. Michelle Hayes completed this assessment on July 24, 2014, and provided the court with a lengthy and detailed report. Ms. Hayes provided an updated s. 30 assessment report on May 25, 2015.

[5] The application was placed on the trial list. For various reasons, it took several years for the parties and the court to deal with the issues of custody and access. Unfortunately, in the meantime, the father and the children have had very limited contact. In fact, since the parents' separation in 2013, the father appears to have had access to the children fewer than five times.

[6] The father believes that the mother has alienated the children from him. The mother denies this. Her view is that the father's conduct is to blame for the children's refusal to see him.

[7] When the father learned that it was unlikely the trial would be reached in June 2017 he brought a motion seeking sole interim custody of the children for 90 days (with no access to the mother during this "blackout" period), and an order directing that during this period of interim custody the parents and children participate in a program known as Family Bridges. In the alternative, the father sought an order for a directed trial on custody and access, with evidence to be presented by Ms. Hayes and Dr. Barbara Jo Fidler, an expert on parental alienation who would testify about the Family Bridges program. In response, the mother brought a summary judgment motion seeking sole custody of the three children, with access to the father at the discretion of the children.

[8] The motions were heard on August 22, 2017. In September 2017 the motions judge granted summary judgment in relation to all three children. First, he dismissed the father's motion regarding S because within a few weeks of the release of the decision S would turn 18 and no longer be within the court's jurisdiction. The motions judge went on to give sole custody of N and A to the mother. He ordered that access and communication between the father and N would be at N's discretion; access and communication between the father and A would be at A's discretion in consultation with the mother. The motions judge awarded costs to the mother fixed in the amount of $80,636 plus HST.

Analysis

(1) The Appeal of the Custody and Access Order

[9] The father argues that the procedure followed by the motions judge was unfair. He advances several arguments stemming from the motions judge's decision to proceed by way of summary judgment rather than directing a trial to hear viva voce evidence from Ms. Hayes. The father also contends that the motions judge erred in failing to attach sufficient weight to the s. 30 assessment, and in his factual finding that there was no evidence that the mother had influenced the children and had undermined their relationship with him. The father further argues that the motions judge erred in law by failing to adequately consider the best interests of the children and the principle of maximum contact. Last, the father submits that his s. 7 and s. 11(b) Charter rights were infringed.

[10] I would not give effect to these arguments.

Appropriateness of Summary Judgment

[11] Rule 16 of the Family Law Rules provides for the summary judgment procedure to be available to the parties and the court in any case other than divorce. The court may make a final order "if there is no genuine issue requiring a trial of a claim or defence". In response to questions by the motions judge, counsel for both parties were firm in their position that the record contained sufficient evidence to determine the issues by summary judgment. The motions judge was satisfied that the record permitted him to make a final order with respect to the children's custody and access. There was no requirement to allow the s. 30 assessor to give viva voce evidence, as the father contends. The motions judge reasonably concluded that he required no further clarification or elaboration of her report. The motions judge's decision to proceed by way of summary judgment is owed deference and I would not interfere with it in the circumstances: Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 81.

Expert Evidence

[12] The father argues that the motions judge erred in failing to attach sufficient weight to the s. 30 assessment and in his factual finding that there was no evidence that the mother had influenced the children and had undermined their relationship with the father.

[13] First, the law is clear that a trial judge should not delegate decision-making to an assessor: Behrens v. Stoodley (1999), 128 O.A.C. 58, at para. 40. An assessor's evidence is but one piece of evidence to consider: Woodhouse v. Woodhouse (1996), 29 O.R. (3d) 417 (C.A.), at p. 435.

[14] I do not agree with the father's assertion that the motions judge departed from the recommendations of the assessor in the order he made. The assessor's first report recommended that the father and the children engage in an intensive therapeutic weekend with a therapist as facilitator. Notwithstanding a court order, the children refused to attend. The second report noted the ongoing therapeutic interventions in the family, including the involvement of the Catholic Children's Aid Society, and concluded that gaining the children's voluntary participation in a therapeutic process would be difficult, if not impossible. The assessor recommended a therapeutic process of parent-child interaction therapy, and suggested some therapists, including Dr. Siegi Schuler. Consistent with that recommendation the parties retained Dr. Schuler, who, in an April 7, 2016 letter to the father, recommended the suspension of services until such time as the children expressed a desire to undergo therapy. The motions judge clearly considered and indeed relied on many aspects of the assessor's reports. He also considered the steps that were taken by the parties and the children since the reports were issued.

[15] Here, where the children's voluntary participation in therapeutic measures intended to restore access to their father was unlikely (an opinion expressed by the s. 30 assessor) the motions judge had to consider what order respecting custody and access was in the children's best interests. He carefully considered the evidence, including what was outlined in the s. 30 reports.

[16] I turn to the father's assertion that the motions judge erred in finding that there was "no evidence" that the mother had influenced the children and had undermined their relationship with the father. While there may well have been evidence offered by the father that this was the case, this statement, while technically inaccurate, is of no moment. The issue before the motions judge was how much weight to give to the children's views and preferences. It was in this context that the motions judge reasonably concluded that the children's views and preferences were not manufactured and were genuine and were not unduly influenced by their mother. Ms. Hayes, in the extensive work she put into the two s. 30 assessments, made no express finding of parental alienation. I do not agree with the father that any such finding was implicit. Further, there was ample support in the evidence for the motions judge's finding that the children had suffered physical abuse at the hands of their father on several occasions, and for the conclusion, contested by the father, that the mother was not attempting to undermine the children's relationship with their father.

[17] The father also argues that the motions judge erred in not taking into account Dr. Fidler's report. In the circumstances – namely, that Dr. Fidler wrote what may be referred to as a generic report about parent-child contact problems and available interventions and had no direct contact with the mother or the children — this was a perfectly reasonable position for the motions judge to take.

[18] There was in my view no error here.

Best Interests Analysis

[19] The father also argues that the motions judge erred in law by failing to adequately consider the best interests of the children and the principle of maximum contact under the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.).

[20] I again disagree.

[21] The child's best interests are not merely "paramount" – they are the only consideration in this analysis: Gordon v. Goertz, [1996] 2 S.C.R. 27 at para. 28. The evidence in this case was clear that the children were suffering from the protracted dispute and conflict between their parents. Exposure to conflict has been called the "single most damaging factor for children in the face of divorce": per Backhouse J., in Graham v. Bruto, [2007] O.J. No. 656 (S.C.), at para. 65, aff'd 2008 ONCA 260.

[22] In making the order he did, the motions judge, after considering whether they were genuinely-held, put great weight on the children's consistently expressed views and preferences.

[23] I note that paras. 121 to 140 of the motions judge's reasons squarely address the children's views and preferences – under a heading bearing that name.

[24] The children's views and preferences are of course a factor in the best interests analysis. Given their ages, the children's views, particularly those of the older children, deserve significant weight.

[25] As articulated in Ontario (Children's Lawyer) v. Ontario (Information and Privacy Commissioner), 2018 ONCA 559 at para. 62, "[o]ver the past several years, courts have taken great initiative to seek out and consider the views and preferences of the child."

[26] The motions judge clearly relied on the s. 30 assessment reports to conclude that the children were expressing genuinely-held views and preferences when they repeatedly informed various mental health professionals who were involved with their family that they did not want their father to have access to them, even in a therapeutic context.

[27] Also, while the youngest child was ten at the time, the alignment of his views with his elder siblings' can add to its weight. As Laskin J.A. stated in Ojeikere v. Ojeikere, 2017 ONCA 372 at para. 82, " each individual child's views and objections are important, but so too is the children's collective view. Where siblings' views align, as they do here, the maturity of the elder sibling may bolster the weight given to the younger siblings' views. All three children have expressed the same strong desire…"

[28] In my view, on this record as a whole, it was open to the motions judge to conclude that the children's views were "clearly and unequivocally" expressed and to give them considerable weight. These views were (i) that they did not want to have contact with their father; and (ii) that they did not want to participate in any more therapy. The motions judge commenced the portion of his extensive reasons dealing with his findings on the children's views with the observation that S and N had expressed these views to 13 different professionals. Indeed, the motions judge went on to note at para. 121 of his reasons that neither of these positions were in dispute.

Charter Arguments

[29] Finally, the father argues that his s. 7 and s. 11(b) Charter rights were infringed by the delays in the proceeding, and that the decision violated Canada's international law obligations. Without commenting on the relevance or application of Charter rights in this context, I would reject these submissions. The motions judge found clearly that the father had contributed to the delay in the proceedings. But more importantly, the motions judge made his decision based only on the children's best interests. He made access at the children's discretion. And this decision was clearly in accordance with the principles of fundamental justice and Canada's international law obligations.

(2) The Appeal of the Costs Order

[30] As to costs, I note that the motions judge, in his thorough costs reasons, found that the father had at various times behaved unreasonably during the proceedings and had failed to provide the mother with a bill of costs. The motions judge also considered proportionality, the importance of the motions to the parties and the fact that the mother had been completely successful on the motions. I see no reason to interfere with the motions judge's exercise of discretion in the determination of costs. I would accordingly dismiss the father's motion for leave to appeal costs.

Conclusion

[31] This case, like all high conflict custody cases, is very sad. Undoubtedly, it has caused much pain to the parents and the children. Although positions have become entrenched, I do not agree with the father's submission that the decision under appeal effectively prevents the father from ever having any relationship with his sons – something he clearly wants very much.

[32] The order leaves the door open to a way forward. We encourage the mother to keep an open mind about the potential benefits of a relationship between her sons and their father and to encourage some form of regular communication between them. With the dispute between the parents now at an end, the father can now focus on what has always been most important – slowly re-building his relationships with his sons.

Disposition

[33] I would accordingly dismiss the appeal.

[34] I would invite the parties to make written submissions as to the costs of the appeal and the proceedings in the Divisional Court. The mother will deliver her costs submissions to the Registrar of this court within 15 days of the release of these reasons, and the father will have 10 days to respond.

Released: July 18, 2018

"Gloria Epstein J.A."

"I agree. P. Lauwers J.A."

"I agree. K. van Rensburg J.A."