Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20240823 DOCKET: COA-23-CV-1264

Nordheimer, Gomery and Wilson JJ.A.

BETWEEN

Robert Joseph Duwyn Applicant (Respondent)

and

Lyndsey Leeanne Ross Respondent (Appellant)

Counsel: William R. Clayton, for the appellant Andrew A. Nicholls and Jared Davies, for the respondent

Heard: August 21, 2024

On appeal from the order of Justice Michael J. Valente of the Superior Court of Justice, dated May 26, 2023, with reasons reported at 2023 ONSC 3168.

Reasons for Decision

[1] The parties met in 2015, married in September 2017, and separated in May 2019. They have one child, now almost five years old. Following the separation, the parties settled some issues, resulting in a February 2022 consent order. The balance of the issues went to trial. Among other things, the trial judge ordered the parties to share equal parenting time on a 2-2-3 schedule and gave them parallel decision-making authority. He declined to order the respondent father to pay any arrears of child support prior to the consent order. He ordered the appellant to pay $90,000 in trial costs.

[2] The appellant appealed the order with respect to parenting time, decision-making, and child support arrears. She also sought leave to appeal the costs award. After hearing the appellant’s submissions, we dismissed the appeal, with reasons to follow. These are our reasons.

The appellant’s fresh evidence motion

[3] The appellant seeks to adduce fresh evidence. She contends that the proposed fresh evidence should be admitted pursuant to the four-point test in R. v. Palmer, [1980] 1 S.C.R. 759, at p. 775.

[4] The proposed fresh evidence is not admitted. It is simply a continuation and repetition of the parties’ evidence at trial regarding the conflicts between them. It is this trial evidence that led the trial judge to order a parallel decision-making regime. As held in Cuthbert v. Nolis, 2024 ONCA 21, 99 R.F.L. (8th) 49, at para. 20, leave should be denied where the proposed evidence is essentially an extension of the evidence adduced at trial. The proposed evidence would not assist in determining any issue on appeal.

[5] The appellant relies on Children's Aid Society of Owen Sound v. R.D., 178 O.A.C. 69 (C.A.). At para. 21 of that decision, Abella J.A. (as she then was) stated that, “[g]iven the inevitable fluidity in a child’s development, in most cases it would be beneficial for a reviewing court to have the most current information possible to assist in evaluating whether a change in the factual matrix of a previous best interests determination warrants interference with that finding”.

[6] Children's Aid Society of Owen Sound v. R.D. does not assist the appellant. In it, Abella J.A. was considering admissibility of fresh evidence under s. 69(6) of the Child and Family Services Act, R.S.O. 1990, c. C.11 then in force, which empowered an appellate court to “receive further evidence relating to events after the appealed decision”. [1] This statutory provision applies solely to appeals of court orders made in the context of child protection proceedings. It does not govern this court’s admission of fresh evidence in family law proceedings, which is subject to the Palmer criteria.

The appellant’s grounds of appeal

[7] The appellant raises three grounds of appeal.

[8] First, she argues that the trial judge erred in ordering equal parenting time on a 2-2-3 model. We disagree.

[9] Following a ten-day trial, the trial judge assessed and weighed the parties’ evidence, and correctly applied the law and principles to the facts as he found them. He held, correctly, that the appellant should not be granted greater parenting time based solely on the status quo, citing Rigillo v. Rigillo, 2019 ONCA 548, 31 R.F.L. (8th) 356, at paras. 9 and 10 and Knapp v. Knapp, 2021 ONCA 305, 155 O.R. (3d) 721, at para. 34. The trial judge considered, and rejected, the appellant’s argument at trial that a 2-2-3 model is not inherently in a young child’s best interests. He concluded that it was in the best interests of the parties’ child to spend equal time with each parent.

[10] It is not the role of this court to intervene in the trial judge’s decision absent an error of law or other reversible error. No such error has been identified here.

[11] Second, the appellant contends that the trial judge erred in ordering parallel decision-making given that each party sought sole decision-making responsibility. We again disagree.

[12] It was open to the trial judge to order a parallel parenting regime. A trial judge may order joint decision-making, with or without giving each parent specific spheres of responsibility, even if each parent has only asked for sole decision-making: Ursic v. Ursic (2006), 32 R.F.L. (6th) 23 (Ont. C.A.), at paras. 3-4 and 26; V.K. v. T.S., 2011 ONSC 4305, [2011] O.J. No. 4046, at paras. 3 and 94; Andrade v. Kennelly, 33 R.F.L. (6th) 125 (Ont. S.C.), at para. 89, aff’d 2007 ONCA 898, 46 R.F.L. (6th) 235.

[13] We reject the appellant’s argument that the parties did not have an opportunity to address a possible order imposing parallel decision-making. The respondent raised the possibility of parallel decision-making in his written submissions as well as his written reply submissions. He also mentioned this possibility in oral submissions made after written submissions were filed. The appellant chose not to address parallel decision-making in either her written or oral submissions, although she did make submissions on joint decision-making.

[14] Third, the appellant contends that the trial judge erred in finding that she had waived her entitlement to retroactive child support. This was a finding open to him on the record, having heard the parties’ evidence and assessed their credibility. We find no reversible error in his reasons on this issue.

The appellant’s motion for leave to appeal the costs order

[15] The appellant seeks leave to challenge the trial judge’s order that she pay $90,000 in costs to the respondent. She has not persuaded us that leave should be granted.

[16] Leave to appeal costs shall not be granted absent “strong grounds upon which the appellate court could find that the judge erred in exercising his discretion”: Brad-Jay Investments Limited v. Village Developments Limited (2006), 218 O.A.C. 315 (C.A.), at para. 21, leave to appeal refused, [2007] S.C.C.A. No. 92; Canadian Tire Corporation, Limited v. Eaton Equipment Ltd., 2024 ONCA 25, [2024] O.J. No. 198, at para. 13; Legault v. TD General Insurance Company, 2024 ONCA 439, 50 B.L.R. (6th) 180, at para. 33.

[17] The trial judge’s costs order clearly fell well within the ambit of his discretion. He concluded that the respondent was entitled to higher costs based on the appellant’s conduct throughout the litigation and her unfounded allegations regarding the respondent. No error of principle warranting this court’s intervention with the costs order has been identified.

Disposition

[18] The appellant’s appeal, her motion to adduce fresh evidence, and her motion for leave to appeal the costs order are dismissed, with costs of $12,500 to the respondent inclusive of fees, disbursements, and HST.

“I.V.B. Nordheimer J.A.”

“S. Gomery J.A.”

“D.A. Wilson J.A.”

[1] The Child and Family Services Act was repealed on April 30, 2018 and replaced by Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14. The wording of s. 121(6) of the new Act reproduces the wording in 69(6) of the old Act.