Court File and Parties

Court of Appeal for Ontario

Date: 20220531 Docket: C69574

Judges: van Rensburg, Harvison Young and Copeland JJ.A.

Between:

Amanda Proulx Applicant (Appellant)

and

Robert Proulx Respondent (Respondent)

Counsel: Jeremy Dolgin, for the appellant Peter Liston, for the respondent

Heard: May 18, 2022

On appeal from the order of Justice Narissa Somji of the Superior Court of Justice, dated September 27, 2021, with reasons reported at 2021 ONSC 3657, and reasons on the costs award reported at 2021 ONSC 6071.

Reasons for Decision

[1] This appeal arises from the breakdown of the parties’ 18-year relationship. They met in 1998 and moved in together shortly after. They married in 2011 and have one child, H.P., who is now ten years old. The parties devoted much of their time at trial and on appeal to decision-making responsibility for H.P., where he should live, and the parties’ parenting time.

[2] The trial judge ordered joint decision-making. Under the terms of her order, H.P. will continue to live primarily with his mother and spend time with his father from Friday to Monday on alternating weeks, and Sunday nights every other week. H.P.’s mother appeals on the grounds that the trial judge erred in granting joint decision-making with no evidence of effective communication between the parties, and that she failed to consider the presence of family violence. The appellant seeks a return of the status quo that persisted after the parties separated.

[3] For the reasons that follow, we dismiss the appeal.

Facts

[4] Some background is necessary to explain the status quo that the appellant wishes to maintain.

[5] The parties’ relationship started to fray in 2011, shortly before H.P.’s birth. It seems that the respondent began experiencing symptoms of poor mental health that affected the parties’ relationship. Thankfully, the respondent sought treatment and his mental health has improved.

[6] However, the parties’ relationship continued to deteriorate. From 2012 to 2016, the parties fought constantly. They did not participate in many family activities and sexual intimacy was virtually non-existent. When the respondent attempted to hug or kiss the appellant, she would rebuff him immediately and sometimes violently.

[7] The parties separated on September 24, 2016, when the appellant moved herself and H.P. to her mother’s home. The respondent drove to the home of the appellant’s mother but was intercepted at her front door by three police officers. The officers told him he was under arrest for mischief to property, uttering threats, and assault against the respondent. He was immediately taken to jail and did not see his son for the next 20 days. The appellant did not inform him that she had made criminal allegations.

[8] The respondent was ultimately acquitted of the criminal charges. However, the criminal proceedings forced him to reside in Ottawa with family and kept him from attending the matrimonial home except to retrieve some belongings. Since February 2017, the respondent has had parenting time with H.P. every second weekend from Friday evening to Sunday afternoon.

[9] The respondent now has a new spouse and another child who was three years old at the time of trial. They live together in the Ottawa area. The appellant and H.P. live in the matrimonial home with the appellant’s new partner. H.P. continues to attend school in Renfrew.

(1) The trial judge did not err by ordering shared decision making

[10] The appellant argues that the trial judge erred in ordering joint decision-making because there is no evidence that the parties are able to cooperate through effective communication. She claims that a judge should reject shared decision making in the absence of evidence to that effect. In this case, the parties were totally incapable of any civil communication from the time of H.P.’s birth to the trial. Even their attempt to communicate by text message quickly devolved into conflict.

[11] The appellant goes on to say that, instead of considering the parties’ ability to make decisions together, the trial judge relied on the parties’ commitment to H.P., their respective support networks, and the fact that H.P. was registered for school and therapy approximately seven years prior to trial and five years before their separation. The appellant maintains that the resulting decision was based on a misapprehension of evidence and other “spurious factors”.

[12] We disagree. The trial judge was well-aware of the test applicable to an order for joint decision-making. Throughout her careful and extensive reasons, she constantly centred her analysis on the best interests of the child, the only proper consideration in determining the child’s residence, decision-making, and parenting time: Young v. Young, [1993] 4 S.C.R. 3 at pp. 62-63. She concluded that it was in the child’s best interests to remain at the school where he has been for some time.

[13] The trial judge made clear that she would have ordered shared residence on a week on week off basis had the respondent lived close enough that the child could remain at the same school. She ultimately fashioned an order that would increase the time that H.P. spends with his father and his extended family while taking account of the practical realities given the distances involved.

[14] Indeed, the trial judge expressly considered the parties’ ability to communicate and co-operate with the conditions of her order under section 24(3)(i) of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”). She noted that the parties have managed to communicate with respect to the child, largely with the assistance of the respondent’s spouse, who gets along well with the appellant. The trial judge correctly stated that a standard of perfection is not required and concluded that the parties are able to make decisions jointly concerning the child in the future. We do not agree with the appellant that the fact that the parties have not spoken directly for some time precludes a joint decision-making order in such circumstances.

(2) The trial judge considered whether there was family violence

[15] The appellant also argues that the trial judge erred in law by failing to categorize the father’s conduct as “family violence” under the recently amended s. 2 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), as amended by S.C. 2019, c. 16, s. 1(7). The appellant made a number of allegations of conduct on the respondent’s part that she claims constituted family violence that warranted a parenting order in her favour. After a thorough review of the evidence on all the allegations, the trial judge declined to make this finding.

[16] For example, the appellant alleged that the respondent engaged in a “coercive and controlling” pattern of sexual harassment in H.P.’s presence by attempting to hug or kiss her in front of the child.

[17] The appellant also claimed that the respondent sexually assaulted her. The parties both admitted that their relationship was largely devoid of sexual intimacy for close to five years. The respondent acknowledged two occasions where he begged the appellant for sexual attention to the point where the appellant consented without desiring intimacy.

[18] Finally, the appellant submitted that the respondent yelled and was prone to emotional outbursts. She testified that these caused her to fear for her own safety. The appellant maintains that these instances meet the Divorce Act’s definition of family violence and should have impacted the parenting order.

[19] Again, we cannot agree. The trial judge painstakingly considered all the appellant’s allegations within the meaning of s. 24(3)(j) of the CLRA. Indeed, she devoted over 70 paragraphs of her decision to the issue of family violence. She cited the definition from the Divorce Act, weighed the relevant evidence, and ultimately found against the appellant. Her findings were amply grounded in the record before her. Accordingly, we reject this ground of appeal.

(3) The trial judge did not err in her costs award

[20] Finally, we do not agree that there is any basis for this court to interfere with the trial judge’s finding that the respondent was the successful party at trial, and her order that the appellant pay him $45,000 in costs.

[21] The appellant argues that this award was in error because she was at least as successful as the respondent. In addition to the parties’ parenting arrangement, the trial also determined important and complex financial issues in the appellant’s favour. Further, the appellant was successful in that the court ordered that the child continue to reside primarily with her.

[22] This argument is misplaced. In the course of exercising her discretion as to costs, the trial judge addressed this argument and concluded that the lion’s share of the time at trial was spent on the parenting issues. With respect to the primary residence issue, the trial judge stated:

What the mother’s argument fails to address is that while I ruled that it was in the best interests of the child to maintain primary residence in Renfrew where he has lived and attended school all his life, this decision and outcome was largely due to the status quo created by the mother’s conduct following the separation five years ago which resulted in the unnecessary alienation of the father’s parental rights…. To compensate for the fact that a 50/50 parenting schedule would impose a significant travel burden on the child and would not be in his best interests, I increased the father’s parenting time significantly from what he has received since separation by providing parenting time every weekend and considerably more summer and other holidays throughout the year. [Citation omitted.]

[23] We see no basis to interfere with the trial judge’s finding that the respondent was the successful party.

[24] Nor do we find any basis to interfere with her assessment of the quantum of the costs awarded. In assessing the quantum, the trial judge properly considered the factors set out in rule 24(12) of the Family Law Rules, O. Reg. 114/99. In doing so, she was exercising her discretion and her award under s. 131(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43 attracts significant deference from this court.

[25] Rule 24(12) also instructs the court to consider offers to settle, unreasonable conduct, and bad faith: Mattina v. Mattina, 2018 ONCA 867, at para. 14. The trial judge did so.

[26] She adjusted the quantum downward to reflect the appellant’s partial success on the financial issues. She also considered the reasonableness of the parties conduct, finding that the conduct of the appellant in using her allegations of family violence as grounds for a parenting order even after the respondent was acquitted of all charges following a trial, was unreasonable and triggered cost consequences. Finally, she considered the appellant’s ability to pay in considering the reasonableness of the award.

[27] In short, the appellant has not identified any error in law or principle, or palpable and overriding error that justifies the intervention of this court.

Disposition

[28] The appeal is dismissed. As agreed between the parties, costs are payable by the appellant to the respondent in the amount of $10,000, all inclusive.

“K. van Rensburg J.A.”

“A. Harvison Young J.A.”

“J. Copeland J.A.”