Warning

This is a case under the Child, Youth and Family Services Act, 2017 and subject to subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3) of the Child, Youth and Services Act, 2017, which deals with the consequences of failure to comply, read as follows:

87 (8) Prohibition re identifying child — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.

(9) Prohibition re identifying person charged — The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

142 (3) Offences re publication — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

Court of Appeal for Ontario

Date: 20210204 Docket: C68185

Judges: Roberts, Zarnett and Sossin JJ.A.

Between

T.J.L. Applicant (Respondent)

and

E.B. Respondent (Appellant)

Counsel: E.B., acting in person Michelle Dwyer, for the respondent

Heard: January 26, 2021 by video conference

On appeal from the order of Justice Donald J. Gordon of the Superior Court of Justice, dated October 25, 2019, with reasons reported at 2019 ONSC 6096.

Reasons for Decision

[1] The appellant mother appeals from aspects of the trial judge’s final order made in proceedings claiming divorce and orders concerning the custody, principal residence, and parenting of the parties’ young child. The appellant does not appeal from the trial judge’s divorce order nor the order for joint custody. She submits that the trial judge erred in giving the respondent father the final decision-making power for major decisions concerning their child in the event of disagreement and in ordering that the principal residence of their child remain with the respondent, as it has been since February 2017. The appellant maintains their child’s principal residence should be with her, the appellant should have final decision-making power for major decisions concerning their child in the event of disagreement, and the respondent should pay child support.

[2] In her factum, the appellant has raised eight arguments for consideration on appeal. Except for the argument of reasonable apprehension of bias, which we turn to below, the other seven arguments essentially challenge the trial judge’s findings of fact that underpin his decision. In sum, what the appellant characterizes as the trial judge’s misapprehension of the facts and evidence or his failure to assess credibility do not amount to reversible errors on appeal. Rather, these represent the appellant’s disagreements with the trial judge’s assessment and weighing of the evidence, particularly what she contends was his failure to reject the respondent’s evidence.

[3] Although submitted as errors of law, similarly, the appellant’s submissions about the trial judge’s application of the criteria under s. 24 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”), and Gordon v. Goertz, [1996] 2 S.C.R. 27, illustrate her disagreement with the trial judge’s consideration of the evidence and his findings but fail to reveal any error in the trial judge’s analysis or conclusions. In essence, the appellant complains about the weight that the trial judge gave or did not give to the various factors that he considered to determine their child’s principal residence and to allow the respondent to make the final major decisions about their child in the event of disagreement with the appellant.

[4] The trial judge extensively reviewed the history of the parties’ relationship and the proceedings to provide context for his findings. He was clear that any past difficulties that the parties experienced were historical issues and neutral factors in his assessment regarding the best interests of their child. In the end, the trial judge gave significant weight to the importance of their child’s stability and determined that it was in the child’s best interests to have the principal residence remain with the respondent. The trial judge’s determination that the respondent has the final decision-making power for major decisions involving their child in the event of disagreement flowed from his determination of the principal residence of their child and, importantly, is not unlimited. In fact, the trial judge’s order indicates that decision-making is the joint responsibility of the parties and requires the parties to meaningfully consult, co-operate, and communicate with each other.

[5] In determining the matters before him, the trial judge was properly guided by the primary consideration of the best interests of the child, as dictated by s. 24 of the CLRA. The trial judge’s findings are reasonable and supported by the evidence. It is the trial judge’s task, and not this court’s role, to assess and weigh the evidence and make findings of fact and credibility. In child custody cases, the trial judge’s findings are subject to considerable deference on appeal, and intervention is only warranted when there is a material error, a serious misapprehension of the evidence, or an error in law: Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014, at paras. 11, 13; Perron v. Perron, 2012 ONCA 811, 113 O.R. (3d) 600, at para. 25, leave to appeal refused, [2013] S.C.C.A. No. 26. The appellant has not pointed to any such error or serious misapprehension of the evidence that would permit this court to intervene.

[6] Turning to the appellant’s allegation of bias against the trial judge, as the appellant fairly acknowledges, the threshold for establishing bias is a high one. There is a presumption of fairness, impartiality, and integrity in the performance of the judicial role. The grounds and evidentiary support for an apprehension of bias must be substantial. See: Miglin v. Miglin (2001), 53 O.R. (3d) 641 (C.A.), at paras. 29-30, rev’d on other grounds 2003 SCC 24, [2003] 1 S.C.R. 303; Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General), 2015 SCC 25, [2015] 2 S.C.R. 282, at para. 30.

[7] We see no basis for the appellant’s allegation of bias against the trial judge. In our view, a reasonable and informed person, viewing the matter realistically and practically, and having thought the matter through, would conclude that the trial judge decided fairly: Committee for Justice and Liberty et al. v. National Energy Board et al., [1978] 1 S.C.R. 369, at p. 394, per de Grandpré J. (dissenting).

[8] Again, the trial judge’s thorough and careful reasons demonstrate that his overarching consideration in making his order concerning custody and principal residence of the child was the best interests of the parties’ young child. He meticulously and fairly assessed the evidence and reviewed the parties’ submissions. The appellant’s disagreement and disappointment with the trial judge’s findings do not establish bias.

[9] Moreover, the appellant’s bias argument is significantly undermined by the trial judge’s acceptance of her position requesting joint custody. In changing the sole custody order in favour of the respondent to joint custody with the appellant, notwithstanding the past conflicts between the parties, the trial judge recognized that both parties are committed and able to work together to care for their child. The trial judge also made it clear that this obligation rests on both parties:

The parties must understand their communication is essential for the well-being of [their child]. [Their child] needs to know that both parents are co-operating and deciding matters together. The parties are given notice, by these reasons, that a record of their future communication will be of significant interest to the court on any future motion to change.

Disposition

[10] For these reasons, the appeal is dismissed. As the trial judge’s order and the child’s principal residence remain unaltered, there is no need to address the appellant’s arguments concerning child support.

[11] The respondent is entitled to partial indemnity costs in the amount of $7,500, inclusive of disbursements and HST.

“L.B. Roberts J.A.” “B. Zarnett J.A.” “Sossin J.A.”