COURT OF APPEAL FOR ONTARIO DATE: 20210722 DOCKET: C68225 Juriansz, van Rensburg and Sossin JJ.A.
BETWEEN
R.F. Applicant (Appellant)
and
J.W. Respondent (Respondent)
Counsel: Ken Nathens and Denniel Duong, for the appellant Kirsten Hughes, Mackenzie Dean and Darryl Willer, for the respondent
Heard: May 7, 2021 by video conference
On appeal from the order of Justice Mary Jo McLaren of the Superior Court of Justice, dated February 26, 2020, with reasons reported at 2020 ONSC 1213.
van Rensburg J.A.:
OVERVIEW
[1] The parties R.F. and J.W. [1] are former spouses and the parents of two children, who are now 15 and 11 years old. After 14 years of marriage, they separated in 2014, and divorced in 2017. Both remarried. Although they were able to agree on an equal time-sharing arrangement after their separation, ultimately they became involved in high conflict litigation.
[2] The appeal is from a judgment following a 16-day trial that took place in September 2019. A final order with reasons for decision was released on February 26, 2020. The trial was primarily concerned with parenting time and decision-making responsibility in relation to the parties’ children and child support. [2]
[3] The trial judge concluded that it was in the best interests of the children for the parties to have shared parenting time on an alternating weekly time-sharing schedule and for the respondent father to have final decision-making responsibility for the children after consultation with the appellant mother. The trial judge fixed the parties’ income for child support purposes for 2018, dismissed the claim for a retroactive adjustment of support, ordered set-off child support to be paid by the mother, commencing March 1, 2020 (with the requirement that the father provide an income analysis from a chartered accountant every two years for the preceding two years, commencing in 2021), and s. 7 expenses to be shared proportionate to the parties’ incomes.
[4] The mother appeals both the parenting and child support provisions of the trial judge’s final order. She asserts that the trial judge made reversible errors in her approach to and consideration of the evidence respecting parenting of the children, in the determination of the father’s income for child support purposes (and the sharing of s. 7 expenses), and in failing to order the father to pay support arrears.
[5] The mother also seeks to introduce as fresh evidence in this appeal her affidavit setting out “changes and events [that] have transpired” since the judgment under appeal was made.
[6] For the reasons that follow, I would dismiss the appellant mother’s motion to introduce fresh evidence and, except for one issue that I would remit to the trial judge, the appeal.
THE FRESH EVIDENCE MOTION
[7] The mother’s proposed fresh evidence is her affidavit, which speaks primarily to events concerning the children since the date of the trial and the final order under appeal. The father opposes the motion, but if the mother’s affidavit is admitted, he asks the court to consider his own affidavit that sets out his post-trial observations, and attaches as exhibits the interim reports of the therapist who was appointed on consent at the conclusion of the trial, Lourdes Geraldo, [3] and of the children’s individual therapist.
[8] Evidence about the circumstances prevailing since the date of an order under appeal is not, strictly speaking, “fresh evidence” that would meet the test for admission under R. v. Palmer, [1980] 1 S.C.R. 759, at p. 775, or Sengmueller v. Sengmueller (1994), 17 O.R. (3d) 208 (C.A.). As Benotto J.A. observed in Goldman v. Kudelya, 2017 ONCA 300, the Palmer criteria are more flexible where an appeal involves the best interests of a child, in order to provide the court with current information about the condition, means, needs, circumstances and well‑being of the child. However, she cautioned that “[t]he more flexible approach to the Palmer test in custody matters is not an opportunity for parents to continue an affidavit war”: at para. 28. Except for one agreed upon fact, the parties’ contradictory affidavits were not admitted as fresh evidence in Goldman.
[9] Similarly, in the present case the proposed fresh evidence speaks to events since the trial, and in particular after the parenting regime provided for in the order under appeal was implemented. The mother’s affidavit repeats and continues themes from the trial: that the father is responsible for the deterioration in his relationship with the children, and that he is ignoring the children’s best interests. The mother asserts that, contrary to the trial judge’s findings, events since the date of the final order demonstrate that the father is the primary source of conflict between the parties. She recounts incidents with the children that suggest that they are doing less well under the equal time-sharing regime, and she objects to the father’s decision to prevent the children from attending in-person dance classes due to COVID-19 restrictions.
[10] I agree with the father that the matters raised in the proposed fresh evidence were either considered by the trial judge at first instance or are matters that are being addressed through the therapy that was ordered by the trial judge on consent at the conclusion of the trial. In a further attendance on November 18, 2020 (to deal with issues of cell phone use and dance registration), the trial judge ordered the parties, through counsel, to arrange a further attendance to speak to the matter in 2021, among other things to advise the court of the status of therapeutic assistance provided by Ms. Geraldo. [4] It is in this context that Ms. Geraldo’s interim report will be considered.
[11] Although the best interests of the children are engaged in family law appeals of final parenting orders, an appeal is not the place to address ongoing conflict between the parties arising out of the order under appeal. There is a strong interest in finality, not only for the parties, but for the children. This is especially the case where the parties have been involved in years of high-conflict litigation, culminating in a lengthy trial. The order under appeal must be treated as a final order, unless there are demonstrated errors meeting the exacting standard of review on appeal. As this court has emphasized in other cases, the proper place for new evidence about changed circumstances – if in fact the threshold of material change can be met – is a motion to change before the court that has original jurisdiction, and not in the context of an appeal: see e.g., Katz v. Katz, 2014 ONCA 606, 324 O.A.C. 326, at para. 75; Myles v. Myles, 2019 ONCA 143, at para. 7; and Gagnon v. Martyniuk, 2020 ONCA 708, 50 R.F.L. (8th) 266, at para. 3.
[12] Generally, where information about a child’s current circumstances is properly considered on appeal, it must be such that it would reasonably be expected to have changed the outcome in the court below: Children’s Aid Society of Oxford County v. W.T.C., 2013 ONCA 491, 308 O.A.C. 246, at para. 43; Ojeikere v. Ojeikere, 2018 ONCA 372, 140 O.R. (3d) 561, at para. 48. In this case the proposed fresh evidence could not reasonably have changed the outcome of the trial. The mother’s affidavit speaks to the circumstances following the trial judge’s order, after equal parenting was implemented, and the father assumed decision-making responsibility for the children. The challenges faced by the children and their relationship with their father were front and centre at the trial, and it is not surprising that there would be some difficulties in the transition. The parties recognized, as early as September 2019, the benefits of therapy with Ms. Geraldo, which is ongoing, and which will be the subject of a further attendance before the trial judge this year. This is the appropriate forum for the consideration of Ms. Geraldo’s interim report.
[13] For these reasons I would dismiss the motion to admit fresh evidence.
THE PARENTING DECISION
(1) Brief Background
[14] At the time of separation in 2014 the parties’ two children were eight and four years of age. For the first two years the parties operated under a de facto equal alternating weekly time-sharing arrangement with the children, sometimes referred to as “week about”, which they arranged first on their own, and then with the assistance of a parenting coordinator.
[15] The mother commenced proceedings in November 2016, seeking, among other things, sole custody of the children (decision-making responsibility), primary residence of the children, and child support. The father sought joint or sole custody (decision-making responsibility), primary residence and child support.
[16] As the litigation progressed, the parties remarried – each to a spouse with their own children. Their conflict escalated. As the trial judge observed, both parties contributed to this high conflict case. Each contacted the Catholic Children’s Aid Society (the “CCAS”) more than once with serious allegations that were never verified. Unfortunately, during the years of litigation the parents also took steps that subjected the children to many interviews with various professionals. They (and the mother’s partner, K.) exchanged emails and messages that contributed to the conflict.
[17] In 2017, pursuant to a consent order, a custody and access assessment was performed by John Butt, a registered marriage and family therapist. His report (the “2017 Parenting Plan Report”) recommended a joint/parallel parenting arrangement for the children, with primary residence with the mother and time with the father one night during the week and every second weekend, and shared holiday and vacation time. These recommendations were incorporated into the temporary consent order of Mazza J. dated August 17, 2017, which was in place at the date of trial. Mr. Butt had started work on an updated report, however he could not complete it or attend at trial due to illness. The 2017 Parenting Plan Report and his clinical notes for the updated report were admitted in evidence at trial on consent.
[18] At trial each party sought an order for sole custody (decision-making responsibility) and primary residence of the children. By the end of the trial, the mother asked for an order further reducing the father’s parenting time.
[19] The evidence at trial consisted of the testimony of 15 witnesses, including 6 professionals who had dealings with the family, and the business records of Mr. Butt, the Hamilton CCAS and Hamilton Police Services.
(2) Standard of Review
[20] The scope of appellate review in family law matters, including those involving parenting orders is intentionally narrow. This approach promotes finality in family law litigation and recognizes the importance of the appreciation of the facts by the trial judge: Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014, at para. 11, citing Hickey v. Hickey, [1999] 2 S.C.R. 518, at paras. 10, 12.
[21] The trial judge’s order must only be disturbed where there are demonstrated errors meeting the exacting standard of review on appeal. An appeal in a case involving parenting time and decision-making responsibility (as in any case on appeal to this court) is not an opportunity for a retrial. Deference is owed to the decision of the trial judge, particularly after a lengthy trial. As the Supreme Court noted in Van de Perre, “[c]ase by case consideration of the unique circumstances of each child is the hallmark of the process”. Intervention on appeal is warranted only where there is a material error, a serious misapprehension of the evidence or an error of law: at para. 13.
(3) Alleged Errors of the Trial Judge: The Parenting Order
[22] The mother contends that the trial judge erred in her determination that the parties would have shared parenting time on an alternating weekly time-sharing schedule and that the father would have sole decision-making responsibility for the children.
[23] She makes three main arguments:
- First, the trial judge erred in law by failing to give effect to the children’s views and preferences, including those set out in the 2017 Parenting Plan Report and Mr. Butt’s more recent clinical notes. In a related argument, she says that the trial judge overlooked the children’s legitimate reasons for preferring to live with their mother (and her spouse) because she failed to properly consider Mr. Butt’s evidence;
- Second, the trial judge erred in her treatment of evidence of the parties’ “alternative” lifestyle and other pre-separation conduct, including in her conclusion that this evidence affected the mother’s credibility, but not the credibility of the father; and
- Third, the trial judge erred in permitting the father to change the children’s family doctor.
(4) Discussion
[24] I would not give effect to any of these grounds of appeal. No reversible error has been demonstrated in the final order respecting the parenting of the children. As I will explain, it is apparent from a review of the trial judge’s lengthy and detailed reasons that she considered all of the evidence at trial, she made all necessary findings of fact – including that both parties were good and loving parents to the children – and she assessed the parties’ credibility in the context of determining which of the parties was more likely to encourage the other’s relationship with the children. This was a very important factor in this high conflict case, where the children’s relationship with their father had deteriorated over time.
[25] In arriving at her decision, the trial judge’s focus was without question on the best interests of the children. Consistent with the new legislative provisions on allocating parenting time, she recognized that children should have as much time with each parent as is consistent with their best interests. [5] The trial judge was concerned about how the children had come to align themselves with their mother. She observed that their relationship with their father had deteriorated, in part, because of the actions of the mother, and she was concerned that, if sole decision-making responsibility were awarded to the mother, the children would become more entrenched in their determination not to see their father, which was not in their best interests.
[26] The trial judge also reasonably concluded that it would not be appropriate to allocate decision-making between the parents: neither party suggested this option, both parties expressed that it would not work, and the trial judge observed that, if areas of decision-making were divided, undoubtedly they would overlap and conflict would result. While the mother’s evidence was that she had done nothing to discourage the relationship between the children and their father, the trial judge found the father to be more credible than the mother on this point, and she determined that he would be the party most likely to promote a relationship with the other parent. For those reasons, she ordered equal time-sharing, with decision-making responsibility to the father.
The trial judge’s treatment of the children’s views and preferences
[27] Turning to the first ground of appeal of the parenting order, I do not agree that the trial judge ignored the evidence of the children’s views and preferences, including what was contained in Mr. Butt’s 2017 Parenting Plan Report and the notes he took of his discussions with the children in July 2018. Nor do I agree that the trial judge erred in finding the children had aligned themselves with their mother, or that she overlooked the legitimate reasons for the children to prefer their mother’s home.
[28] Several witnesses reported that, based on conversations with the children and their observations, the children preferred the home environment with their mother and her new spouse to the environment at their father’s home. They also reported that there was conflict between the children and the father’s spouse, D. [6]
[29] The trial judge noted that a significant part of the mother’s case at trial related to the children’s views and preferences, and she recited the evidence in her reasons. The trial judge explained why she considered such evidence to be of limited value in this case: it was not obtained through a professional whose job it was to consider the independence of the views, and to look for external influences. The potential for influence was noted by Mr. Butt, who observed that the children’s views and preferences, although consistent with the observations he made, could not reasonably be deemed to be fully independent and should be cautiously considered.
[30] The trial judge concluded that she was not inclined to rely on the expressed views and preferences of the children, other than to make time sharing a “week about” rather than giving the father the majority of the time, which would be “too contrary to what the [children] would like, and what they are used to”. She concluded that the children had likely been influenced by their mother, and that they had become increasingly aligned with her.
[31] In so concluding, the trial judge considered the evidence of the mother’s witnesses that they never heard the mother speak negatively about the father, and that she promoted a relationship between the children and their father. However, the trial judge also referred to evidence at trial that contradicted this assertion. What was squarely before the trial judge was whether the deterioration of the children’s relationship with their father – which was reflected in their stated preference to live only with their mother and her partner, K. – was, as was alleged by the mother, the natural result of the father’s conduct (as well as that of his spouse at the time, D.). Ultimately the trial judge concluded that the evidence at trial did not support this conclusion.
[32] This conclusion was open to the trial judge on the evidence. She reasonably concluded that the children’s views had not been ascertained independently and that the children had become increasingly aligned with their mother against their father.
The trial judge’s treatment of the parties’ pre-separation conduct evidence
[33] This takes us to the mother’s second ground of appeal of the parenting order: that the trial judge erred in her assessment of the evidence of the parties’ “alternative” lifestyle before separation: their involvement in a “swingers” club and sexual infidelities. The mother asserts that the trial judge, after finding that this was irrelevant past conduct, wrongly took the evidence into consideration as affecting the mother’s credibility and not the father’s. She asserts that one particular aspect of the evidence, the father having retained nude photos of her, ought to have been considered as “family violence”, which is a relevant factor in determining a child’s best interests under s. 24(4) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12.
[34] There was a lot of evidence about the parties’ pre-separation “alternative” lifestyle. The thrust of the mother’s evidence, which was contradicted by the father’s account, was that she was not a willing participant in many of these activities, including an incident resulting in nude photos of her with another man, and on a “girls’ weekend” – photos that ended up in the father’s possession. Unfortunately, and unnecessarily in my view, a great deal of time at trial was devoted to the parties’ contradictory evidence about these events and allegations. It is also unfortunate that, despite her conclusion that the evidence was not ultimately relevant to the parenting orders, the details of this evidence were recounted at length in the trial judge’s reasons. [7]
[35] At para. 347, the trial judge noted that she was “very mindful of the fact that none of these activities prevented the parties from entering into a joint custody arrangement with an equal timesharing that was arranged with the help of a qualified parenting coordinator and which lasted for over two years”. She concluded:
Give[n] the ability of the parties to initially overlook these activities, and the contradictory evidence, I cannot say that these activities have impacted either party’s ability to parent. As such they are not something that helps or hurts the claims made by either party with the exception of credibility, which I will address. I am also mindful that both parties appear to be in stable new relationships now, and have been for a few years. Both have re-married.
[36] The trial judge stated that she made no determination as to who was the instigator of the trips to the “swingers” club or whether it was a mutual decision, and that neither this nor the mother’s extra-marital relationship was a factor in her decision. In addition to a lack of independent evidence, “there [was] no reason to believe that the children were affected in any way”: at para. 360.
[37] I see no error in the trial judge’s conclusion that the evidence about the parties’ pre-separation lifestyle would not affect her decision on parenting, except in the sense she described as relevant to “credibility”.
[38] First, the trial judge did not err in failing to find that the father’s retention of nude photos of the mother was an incident of “family violence”. This was not the argument at trial; rather the mother’s counsel referred to s. 162.1 of the Criminal Code (making it an offence to knowingly publish an intimate photo of someone without their consent). The trial judge reasonably concluded that this provision was not relevant: there was no suggestion that the photos were made available to anyone other than private individuals and no witnesses were called to say they saw them. One witness said the father offered to show some photos to her, but the father denied this. The trial judge’s treatment of the evidence about the nude photos was appropriate. She noted that, although the mother was “understandably upset” that the father kept the photos, there was contradictory evidence about how they came to be, and there was no evidence at trial that they had been shared by the father, although she accepted that he had told people about them. The trial judge also appropriately observed that there was no reason why the photos should not be destroyed.
[39] Nor in my view did the trial judge err in her limited consideration of the “alternative” lifestyle evidence, including the evidence about the photos, to assess credibility. She had to determine which of the two parents was more likely to encourage a relationship with the other. She concluded that the father would be more likely to facilitate contact with the mother than the reverse. In arriving at this decision, she identified certain aspects of the mother’s testimony that lacked credibility: that the father had harassed her and her adult friends into taking nude photos of themselves on their “girls’ weekend”; that the complimentary comments in greeting cards she wrote to the father were written, not because they reflected her feelings, but because “it was expected”; and that the mother was forced by the father to travel by cab to another man’s house for sex and photos, contrary to what appeared in the mother’s own explicit text messages. By contrast, the trial judge stated that she did not find specific areas where the father lacked credibility on substantive issues, and she was more inclined to accept his evidence overall.
[40] The trial judge’s assessment of credibility is entitled to deference. It is supported by the evidence and reveals no reversible error.
The father’s ability to change the children’s family doctor
[41] Finally, I see no merit in the mother’s argument that the trial judge erred in permitting the father to change the children’s family doctor. The trial judge stated that, since the father was going to have custody (decision-making responsibility), it was not unreasonable for him to change the family doctor. The trial judge noted that while she did not doubt the family doctor’s sincerity (the family doctor had testified as a witness at trial for the mother and recounted detailed conversations with the children about their preference for their mother’s home), the father might want to start with someone new, who had not had the history of hearing the children’s complaints about the father and his spouse. The trial judge, who had the benefit of hearing and considering all the evidence, provided a sensible reason for refusing the mother’s request that the children remain with their current family physician. There is no reason to interfere.
CHILD SUPPORT
[42] From October 1, 2017 until August 1, 2019 the father had been paying the mother $1,416 per month voluntarily based on an estimated annual income of $100,000. He stopped paying child support one month before trial. At trial both parties sought retroactive adjustments to child support. The mother asserted that she was owed child support for 2017, 2018 and 2019 based on the father having earned more than $150,000 in each of those years. The father argued that he had overpaid child support and was entitled to repayment over time given that the children were with him more than 40% of the time between October 2017 and August 2019.
[43] The trial judge ordered support on a set-off basis from March 1, 2020 based on her determination of the 2018 income for the mother of $152,314.81 and of the father of $93,341. Although she fixed child support going forward based on the parties’ 2018 incomes, she ordered the father to provide an income analysis from a chartered accountant every two years for the preceding two years, commencing in 2021 (for 2019 and 2020).
[44] The trial judge refused to make any retroactive adjustments to child support. She acknowledged the parties’ contradictory calculations of the amount of time the children had spent with their father. Noting that the court has discretion and the child support is the right of the child, she observed that both parties knew the time‑sharing schedule when child support was agreed to, and that if the father had the children over 40% of the time, she was not prepared to say that he had no obligation to pay child support. She concluded that the estimated income of $100,000 was close to what the father actually earned, and it was a fair amount under all the circumstances. She concluded: “I will use my discretion and leave child support on a retroactive basis, in the amount that was agreed to”.
[45] The mother asserts that the trial judge made two errors in her determination of child support: the first relates to the calculation of the father’s income for child support purposes for 2018. The second is that the trial judge erred by failing to award retroactive support for the six-month period from September 2019 to February 2020.
The father’s 2018 income for child support purposes
[46] With respect to the father’s income, the mother makes the same arguments on appeal that were rejected at first instance. She says that, in determining the father’s income for 2018, no deduction ought to have been allowed for his rental and home office expenses. She contends that the trial judge ought to have included in the father’s income the amount that was allowed as a deduction for rent and home office expenses plus gross up for taxes (an amount exceeding $6,000), as well as pre-tax corporate earnings ($50,114.62). She seeks to impute income of over $150,000 to the father for 2018 (and for the preceding year, 2017).
[47] I would not give effect to this argument. The trial judge accepted the opinion of the father’s expert, R. Andrew MacRae, a chartered accountant and business valuator, who provided an income report for the year 2017 and testified at the trial. Mr. MacRae’s opinion was that, although the father’s line 150 income for 2017 was $84,000, he had an income of $90,000 for child support purposes. Adopting the same approach, the father’s income for 2018 for child support purposes was $93,341. The trial judge accepted Mr. MacRae’s calculation and rationale for adding back the sum of $6,431 for certain personal expenses that had been included in corporate deductions for meals and entertainment, telephone, travel, rent and home office expenses, with a gross up at 34%. And, although she acknowledged that there was a good argument that retained earnings should be included in the determination of income for support purposes, the trial judge elected not to attribute pre-tax corporate income in 2018 as there were substantial losses in 2017 and the father had been drawing on his cash reserves and line of credit to pay himself his monthly draw. The trial judge accepted Mr. MacRae’s opinion that the prior year’s losses had to be considered as part of the analysis. His evidence was not seriously challenged and the mother “provided no professional opinion to the contrary”. There is no reason to interfere with the trial judge’s determination of the father’s income for 2018.
The child support arrears from September 2019 to February 2020
[48] Second, the mother argues that the trial judge erred by failing to order the father to pay arrears of child support in respect of a six-month period. She seeks payment of support for the period between September 1, 2019 and February 1, 2020. The father paid no child support during this period.
[49] The mother points to the fact that the father was paying child support of $1,416 per month based on the parenting regime that was in place up to trial, which continued until the end of February 2020, when the new equal time parenting arrangements ordered by the trial judge were put in place. The father’s last child support payment was made in August 2019. The father renews the argument made at trial that he had overpaid child support because the children were living with him more than 40% of the time. This argument however had been rejected by the trial judge in refusing the father’s request for a retroactive adjustment to child support.
[50] Although the final order states that there is no adjustment to child support as of February 29, 2020, the trial judge’s reasons do not address the question of child support for the six-month period between September 2019 and February 2020. I would remit the issue of child support for this period to the trial judge in the particular circumstances of this case, in which the parties are to reattend before the trial judge in any event to address the status of the therapeutic assistance provided by Ms. Geraldo.
DISPOSITION
[51] For these reasons I would dismiss the motion to introduce fresh evidence and, except for the one issue I would remit to the trial judge, the appeal. If the parties are unable to agree on costs, the court will receive written submissions limited to three pages each exclusive of any costs outline, with no right of reply. The respondent’s submissions are to be served and filed within 15 days of these reasons and the appellant’s submissions within ten days thereafter.
Released: July 22, 2021 “R.G.J.” “K. van Rensburg J.A.” “I agree. R.G. Juriansz J.A.” “I agree. Sossin J.A.”
[1] I have chosen to initialize the parties’ names in the title of proceedings and this decision at the parties’ request and to protect the children’s privacy, given the particularly sensitive nature of the evidence in this case.
[2] Pursuant to amendments to the Divorce Act, R.S.C. 1985, c. 3, which came into effect on March 1, 2021, “custody” and “access” terminology has now been replaced by terms such as “decision-making responsibility”, “parenting time” and “contact”. Section 35.4 of the Act deems a person who had custody of a child by virtue of a custody order to have parenting time and decision-making responsibility and a spouse or former spouse who had access by virtue of a custody order to be a person to whom parenting time has been allocated.
[3] Ms. Geraldo was appointed on consent of the parties at the conclusion of the trial on September 26, 2019 to “facilitate any and all therapeutic interventions, therapies and approaches to ensure a balanced relationship as between the children and the parties”. The order also provided for the termination of any other counselling or therapy involving the children and prohibited further therapy without it being part of the process undertaken by Ms. Geraldo and specifically recommended by her.
[4] The parties attended before the trial judge in accordance with paras. 34-35 of her final order that directed she would remain seized of the issue of the therapeutic interventions, and adjourned the issue of mobile phone use for the children, and any time limits for the children’s activities.
[5] See Children’s Law Reform Act, R.S.O. 1990, c. C.12, s. 24(6) and the Divorce Act, s. 16(6).
[6] The proposed fresh evidence discloses that the father has since separated from D.
[7] It is unclear why it was necessary to have 16 days of evidence in this trial, including a great deal of evidence that the trial judge concluded was irrelevant to the issues she had to determine. A trial judge has an important role in determining as the trial progresses the relevance of the evidence which is led: see e.g. R. v. Forrester, 2019 ONCA 255, 375 C.C.C. (3d) 279, at para. 16; Burton v. Howlett, 2001 NSCA 35, at para. 15; Canada (Attorney General) c. JTI-MacDonald Corp., 2012 QCCA 2017, at para. 8. There is also a concern about the length and style of the trial judge’s reasons in this case, which include a seriatim review of the evidence of each witness, and many details that are not only embarrassing to the parties but reveal medical and other confidential information about the children. Setting out the detailed evidence of each witness in the reasons for judgment is typically unhelpful: see Welton v. United Lands Corporation Limited, 2020 ONCA 322, at paras. 56-63. And the inclusion of confidential information that is unnecessary to the determination of the case should be avoided. As the Supreme Court noted recently, “[proceedings] in open court can lead to the dissemination of highly sensitive personal information that would result not just in discomfort or embarrassment, but is an affront to the affected person’s dignity”: Sherman Estate v. Donovan, 2021 SCC 25, at para. 7.
