Court of Appeal for Ontario

Date: 2019-06-17

Docket: C65004

Judges: Tulloch, Roberts and Miller JJ.A.

Between

Jennifer Laura Kagan (Brown) Appellant (Respondent)

and

Robin Allan McLean Brown Respondent (Applicant)

Counsel

Robert Karrass, for the appellant

Elliot Vine, for the respondent

Heard

June 3, 2019

On Appeal

On appeal from the order of Justice Douglas Gray of the Superior Court of Justice, dated January 24, 2018.

Reasons for Decision

[1] The appellant appeals from the parenting schedule set out in the final order of the trial judge. The appellant takes no issue with the other provisions of the final order in relation to custody, equalization and child support.

[2] After an 11-day trial, the trial judge ordered that the respondent have greater contact with the parties' now four-year-old daughter, K., including extended overnight visits during weekends and holidays.

[3] The appellant's main submission is that the trial judge erred in failing to follow the recommendations of the expert assessor respecting the parenting schedule, specifically, the gradual increase of overnight and holiday access. The appellant submits that their daughter is distressed by the present schedule because it provides for too much time away from her mother while she is very young. In support of this submission, the appellant seeks to file new opinion evidence from a clinical psychologist. The appellant submits that the trial judge imposed the parenting schedule to punish her for moving a fair distance away from the respondent after the marriage breakdown.

[4] We do not accept these submissions.

[5] We start from the well-established principle that the trial judge's determination of the appropriate parenting schedule is firmly within his discretion and that absent palpable and overriding error or error in principle, appellate intervention is unjustified: D'Angelo v. Barrett, 2016 ONCA 605, at para. 7. We see no such error here.

[6] The trial judge thoroughly reviewed the relevant evidence and carefully crafted a reasonable parenting schedule that took into account the particular circumstances of the parties and, most important, the best interests of their child. The latter required that he give effect to the "maximum contact" principle under s. 16(10) of the Divorce Act, R.S.C. 1985, c. 3, that "a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child".

[7] We disagree that the trial judge's order disregards the assessor's recommendations or is punitive against the appellant. While he could accept all, none or part of the assessor's recommendations, it was the trial judge's ultimate responsibility to fashion an appropriate parenting schedule in the best interests of the parties' daughter, which reflected his consideration of all relevant circumstances: D'Angelo, at para. 8. That is precisely what he did here.

[8] The trial judge recognized that the unfortunately toxic relationship between the parties made communications and co-operation between the parties very difficult, such that the 50/50 parenting model recommended by the assessor would not work. As a result, he granted decision-making authority to the appellant and created a parenting schedule that has the parties' daughter spend most of her time in her mother's care. The trial judge nevertheless appreciated, as the assessor also observed, that the parties are excellent parents who are devoted to their daughter. As a result, he determined that granting increased access to the respondent, including overnight and holiday access, would be in the best interests of their young child. His parenting schedule properly, fairly and thoughtfully reflects all of these considerations. These considerations had not materially changed by the time of the September 21, 2018 review. There is no basis to interfere with the parenting schedule on appeal.

[9] As fresh evidence regarding the current effect of the parenting schedule on the parties' daughter, the appellant seeks to rely on the report of Dr. Liza Weiser, dated February 8, 2019. We would admit the fresh evidence given that it is tendered in relation to the issue of the best interests of K. As Benotto J.A. observed in Goldman v. Kudelya, 2017 ONCA 300, at para. 25:

The Palmer criteria are more flexible where an appeal involves the best interests of a child, and it is important to have the most current information possible when determining the child's best interests "[g]iven the inevitable fluidity in a child's development": Children's Aid Society of Owen Sound v. R.D. (2003), 178 O.A.C. 69, at para. 21.

[10] Dr. Weiser is a clinical psychologist who has seen the parties' daughter on eight occasions between September 26, 2018 and February 4, 2019. The report mostly describes Dr. Weiser's observations and summary of K.'s feelings when she is with her parents and makes recommendations as to how communications between her and her parents can be improved when K. is away from each of them. Importantly, Dr. Weiser notes that K. "has been able to express how she misses both parents when she is not with either one of them, but she struggles more with missing her mother during her time with her father; often worrying if her mother knows where she is when she is not with her". While Dr. Weiser does opine that K. will become distressed when away from her mother, she also notes that this distress can be alleviated by contact with her mother. She forecasts that K. "will become tremendously distressed if she has to endure a prolonged separation from her mother, by which at her age would be no more than five consecutive days".

[11] In our view, Dr. Weiser's report would not have changed the parenting schedule ordered by the trial judge. It is important to remember that Dr. Weiser's observations were made when K. was three years old and speaks to the effect of separation from her mother as at that age. She gives no opinion as to the effect of such a separation when K. is 6, when the first month holiday with her father is proposed to occur under the parenting schedule. Moreover, any concern about distress appears to be mitigated by the communication and other techniques that Dr. Weiser advocates for K.'s comfort.

[12] Finally, the appellant seeks leave to appeal the trial judge's costs orders. We see no error in the trial judge's orders that holistically took into account the parties' respective successes over the entirety of these hard-fought and protracted proceedings.

[13] For these reasons, we dismiss the appeal.

[14] The respondent is entitled to his partial indemnity costs in the amount of $10,000, inclusive of disbursements and applicable taxes.

"M. Tulloch J.A."

"L.B. Roberts J.A."

"B.W. Miller J.A."