CITATION: Levesque v. Windsor, 2020 ONSC 5902
DIVISIONAL COURT FILE NO.: DC-20-2582
DATE: 20201001
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Swinton, McCarthy and King JJ.
BETWEEN:
Maxime Gaetan Levesque
Applicant (Appellant)
– and –
Lindsay Windsor
Respondent (Respondent on Appeal)
A. Bach, for the Applicant (Appellant)
D. Paolucci and M. Grewal, for the Respondent (Respondent on Appeal)
HEARD via Video Conference on September 16, 2020
REASONS FOR JUDGMENT
McCARTHY J.
THE APPEAL
[1] The Appellant appeals from a final custody and access order made by Shelston J. (“the trial judge”) on May 25, 2020. The trial judge’s reasons for judgment were released on January 17, 2020.
[2] The Appellant father and the Respondent mother are the biological parents of P.L. (“the child”) born November 1, 2012. They were never married. Accordingly, this proceeding was commenced under the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (“CLRA”) in 2015.
[3] As of the commencement of the trial, the child’s primary residence was with the Appellant; the Respondent mother enjoyed unsupervised access. The Respondent had been addressing addiction issues since early 2014. Those issues gave rise to an initial residency/supervised access order on consent in September 2015. There were a number of further court orders prior to the trial dealing with access and drug testing for the Respondent. By the time of trial, the Respondent was exercising limited unsupervised access, including some overnights.
[4] The primary issues at trial were the custody and parenting arrangements for the child, particularly considering the child’s mental health issues and the Respondent’s past drug addiction. The trial was held over nine days in October and November 2019. It featured nine witnesses and some 80 exhibits.
[5] The trial judge ordered, inter alia, a joint custody regime which maintained primary residence with the Appellant. However, the trial judge’s order featured gradual increased access for the Respondent over three phases commencing on January 27, April 20, and June 22, 2020. As a result, the number of overnights the child would be resident with the Respondent in a bi-weekly period increased from three to four to six, respectively. His order also dealt with drug testing by the Respondent. The parties had consented to a drug testing schedule and a term that a positive drug test by the Respondent would result in supervised access.
POSITIONS ON THE APPEAL
[6] The Appellant contends that the trial judge made erroneous findings of fact, misapprehended critical evidence, failed to properly consider the best interests of the child and made errors in law. The Appellant submits that this court should set aside the order of the trial judge and substitute a custody and access regime in line with what the Appellant sought at trial. In particular, he seeks an order of sole custody. In the alternative, this court should order a new trial.
[7] The Respondent opposes the appeal and any alteration or variation of the order now in place. The Respondent submits that the trial judge made no errors of law, nor were there any palpable and overriding errors of fact.
PRELIMINARY ISSUE – THE MOTION FOR FRESH EVIDENCE
[8] The Appellant moved to introduce fresh evidence on the appeal under section 134(4)(b) of the Courts of Justice Act. The proposed fresh evidence consisted of the Appellant’s affidavits of June 14, 2020 and August 25, 2020 with attachments of emails between the parties and the child’s psychologist Sharon Francis Harrison (“the psychologist”).
[9] The information set out in the affidavits and attachments post-dated the trial. Specifically, the Appellant purported to provide details of the child’s regressive behaviour and reactions since the implementation of the phased increase in the Respondent’s access time. The Appellant asserted that the evidence was critical to an understanding of the best interests of the child.
[10] The motion was dismissed at the outset of the appeal. The proposed fresh evidence fails to meet the four-part test set out by the Supreme Court of Canada in R. v. Palmer, 1979 8 (SCC), [1980] 1 S.C.R. 759. I reach this conclusion having regard to the Ontario Court of Appeal’s decision in Decaen v. Decaen, 2013 ONCA 218, [2013] O.J. No. 1549 wherein the court called for a more flexible approach to fresh evidence where child welfare is at stake.
[11] I accept that some of the reported behaviour first manifested itself during the phased-in increase to the Respondent’s access. The proposed fresh evidence might therefore satisfy the first prong of the Palmer test: some of the child’s alleged behaviour as chronicled in the affidavit post-dated the trial. It could not have been brought to the attention of the trial judge. As well, the fresh evidence is relevant to the best interests of the child.
[12] I find, however, that the fresh evidence is lacking in credibility; it is largely uncorroborated and consists almost entirely of hearsay. There is no expert opinion offered which might shed light on the reasons for the child’s concerning behaviour; and significantly, no opinion that the behaviour had anything to do with the custody and access arrangements ordered by the trial judge.
[13] As well, I find it concerning that the Appellant, who suggested that the child had wet her bed over 30 times in a 3-month period, would fail to bring this information to the attention of the child’s therapist. This alone undermines the credibility of the affiant and the reliability of the evidence.
[14] On the final prong of the Palmer test, I am not persuaded that the evidence, even if believed, would have affected the result at trial. It is evident from the reasons of the trial judge and the opinion provided by the psychologist that the child was always going to offer some resistance to change and that, given her mental health issues, one could reasonably expect the child to engage in problematic behaviour at times. The issue of the child’s ability to deal with change was one of the issues considered in depth at trial. Indeed, the child’s regressive tendencies were a prime focus of the psychologist’s testimony. The trial judge weighed that evidence and considered it in the factual matrix when considering the best interests of the child.
[15] Finally, I find that it would be enormously unfair to the Respondent to be forced to contend with fresh evidence which has not been subject to cross-examination especially when much of that evidence consists merely of observations and conclusions made by an interested party.
[16] If the conduct is as new, prevalent and disturbing as the Applicant contends, it should be the basis of an application to vary the final order based on a material change in circumstances.
[17] I conclude that the fresh evidence does not qualify for the threshold of admissibility on an appeal.
STANDARD OF REVIEW
[18] The standard of review for an appellate court on a pure question of law is correctness. Pure findings of fact are not to be reversed unless it can be established that the trial judge committed a palpable and overriding error. This could include a failure to consider relevant evidence, a misapprehension of relevant evidence, or a finding unsupported by the evidence. The standard of review on an error of mixed fact and law lies along a spectrum between correctness and overriding error. See Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 8-10.
ANALYSIS
[19] The Appellant argues that the trial judge erred both in ordering joint custody and increased access for the Respondent because he failed to consider and/or give appropriate weight to a number of factors in determining the best interests of the child: the importance of maintaining the status quo and stability, the child’s mental health issues and her struggles with change, the mother’s mental health issues and history of substance abuse, and the parties’ inability to communicate effectively and make joint decisions for the child. The Appellant argues that the trial judge gave too great emphasis to the maximum contact principle in this case, especially in light of the child’s special needs and the importance of respecting the status quo.
[20] The Supreme Court of Canada in Gordon v. Goertz, 1996 191 (SCC), [1996] 2 S.C.R. 27, at para. 28, has made it clear that while the best interests of the child are the paramount consideration in custody and access cases, maximum contact should be the goal if it is consistent with those best interests. The trial judge was aware of this instruction (see para. 100 of his reasons). The maximum contact principle was simply part of the trial judge’s multi-factorial analysis.
[21] The Appellant failed to point out any instance where the trial judge misstated a principle of law or misinterpreted a legal precedent. That being the case, for this court to intervene, it must be satisfied that the trial judge committed one or more palpable and overriding errors.
[22] On the issue of custody, the trial judge carefully considered both parents’ ability and willingness to communicate, which are primary factors according to the governing case of Kaplanis v. Kaplanis (2005), 2005 1625 (ON CA), 249 D.L.R. (4th) 620 (Ont. C.A.). In particular, the trial judge afforded weight to the fact that the parties communicated in a civil and effective manner through weekly emails. The trial judge relied appropriately on the decision in Khairzad v. Macfarlane, 2015 ONSC 7148, [2015] O.J. No. 5998: his factual findings led him to conclude that the Appellant had attempted to limit the Respondent’s access to information and to oppose any third-party recommendations for increased access for the Respondent. This weighed in favour of joint custody in order to safeguard against a power imbalance. The trial judge properly reviewed and adopted the jurisprudence which suggests that communication need not be perfect and that some level of difficulty is always going to be expected.
[23] The trial judge expressed concern with the Respondent’s mental health issues, her historic addiction problems, and her attempt to cover up her cocaine use on occasions in the past. The trial judge properly went on to consider all the evidence on these issues. He concluded that the Respondent had demonstrated an ability to control her addiction and manage her mental health. As well, he found that the Respondent took those challenges seriously and understood the impact they could have on her family. He found that the Respondent’s mental health challenges would serve as no impediment to her ability to arrive at appropriate decisions for the well-being of her child.
[24] The trial judge was alive to the child’s mental health challenges and special needs. He carefully considered the evidence about the child’s behavioural issues. His reasons contain the following: a discussion of the Respondent’s understanding of the child’s needs; a recognition of the child’s contrasting behaviour in the two homes; a review of the child’s anxiety issues; a summary of the psychologist’s reports and opinion about the desirability of pushing the child out of her comfort zone; an acknowledgment of the child’s problematic behaviour at school; a consideration of the recommendations of the Office of the Children’s Lawyer (“OCL"); and regard for the evidence of the paternal grandfather who expressed no concerns about the child’s behaviour while she was in the care of her mother. He also considered the positive relationship the child has with the Respondent.
[25] The trial judge was particularly alive to the child’s struggles when faced with transitions in parenting time. Indeed, he took this into account when developing a parenting scheme which sought maximum contact with as few transitions between the two homes as possible.
[26] In terms of credibility, regardless of the trial judge’s initial statement that he would prefer the evidence of the Appellant to that of the Respondent where the two conflicted, it remained open to him to assign appropriate weight to individual pieces of evidence. As well, it was entirely reasonable for him to find that the Appellant’s evidence was credible without adopting his proposal for a custody and access regime. I find that the trial judge properly maintained the best interests of the child in the forefront of his mind throughout his analysis. I cannot find palpable or overriding error in this regard.
[27] I find that the trial judge did not place undue weight on the recommendations of the OCL. In fact he gave it no weight in his decision on access because of the time elapsed since the OCL report was made. Nor do I find that the trial judge erred by not giving weight to the clinician’s admission that her recommendations would change if she discovered that the Respondent was using cocaine. By the time of trial, the Respondent was not using cocaine and had been clean for several years. Thus, a logical inference to draw is that the clinician’s recommendations would have remained consistent with what was set out in her report.
[28] I am unable to conclude that the trial judge committed a palpable and overriding error by placing limited weight on the Respondent’s history of dishonesty respecting her drug use and the presence of a new partner or on the parenting status quo. Another trial judge, faced with a similar body of evidence, may well have come to different conclusions on the parenting issues. But that is not the test on appeal. A reviewing court owes deference to a trial judge who is best placed to make findings of credibility of witnesses and determine the weight to be assigned to various pieces of evidence. The trial judge is also in the best position to weigh the various factors, in light of the evidence, that go into the determination of the best interests of a particular child.
[29] The trial judge made no reversible errors of law. The trial judge did not misapply any legal principles to the facts as he found them. The trial judge did not commit any palpable or overriding errors in any of the findings or conclusions he made.
[30] For the reasons set out above, the appeal is dismissed.
COSTS
[31] The parties agreed that the successful party on the appeal should be entitled to costs in the amount of $30,000.00. I will not quibble with the amount agreed to; counsel have by far the better insight into both the time and effort involved in the appeal and the subjective expectations of the respective parties.
[32] The Appellant shall pay the Respondent her costs of the appeal fixed in the amount of $30,000.00. The Appellant shall have a period of nine months from the date of this order to pay those costs.
McCarthy J.
I agree _______________________________
Swinton J.
I agree _______________________________
King J.
Released: October 1, 2020
CITATION: Levesque v. Windsor, 2020 ONSC 5902
DIVISIONAL COURT FILE NO.: DC-20-2582
DATE: 20201001
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Swinton, McCarthy and King JJ.
BETWEEN:
Maxime Gaetan Levesque
Applicant (Appellant)
– and –
Lindsay Windsor
Respondent (Respondent on Appeal)
REASONS FOR JUDGMENT
McCARTHY J.
Released: October 1, 2020