Overview

[1] This appeal arises from a family law trial that was adjourned twice and started eight months after it was originally scheduled to begin. After it started, the appellant father, G.S., continued to request adjournments for health reasons and to retain counsel. The trial judge made extensive efforts to accommodate the father and to ensure a fair trial, including permitting him to submit evidence in writing, granting a further adjournment after three days of trial, and ultimately appointing amicus curiae to assist. The trial then proceeded with the assistance of the amicus, but mostly without the participation of the father.

[2] The trial centered on the best interests of the parties’ child, J., who was almost nine years old at the time. Following the conclusion of the trial, the trial judge issued reasons for decision in which she ordered, among other things, that J. would reside primarily with the respondent mother, S.B.: G.S. v. S.B., 2022 ONSC 7073. The father’s parenting time with J. was to start with two weekly video calls and weekly supervised visits. His parenting time was to increase in stages subject to his meeting the requirements in her order, such as engaging a new therapist and completing parenting courses. The trial judge also granted the mother sole authority to make all major decisions for J.

[3] In the introduction to her decision, the trial judge stated that this case was “quite possibly the worst case of a pattern of coercive and controlling behaviour by the [father] towards the [mother] that I have ever seen.” She found that J. had been emotionally harmed by the father’s family violence and continued to be at risk of emotional harm from it.

[4] The father appeals the trial judge’s decision. While he has raised numerous grounds of appeal, the central point pressed in oral argument was that he was denied natural justice during the trial. He submits that he was unable to participate in the trial and that the trial judge therefore did not consider or put weight on important evidence he provided. He raises other procedural issues related to the trial judge’s management of the amicus and her refusal to admit the affidavit of his treating psychologist. The father also submits the trial judge erred in her consideration of factors related to the best interests of the child and in imputing income to him without an evidentiary basis.

[5] The issues to be determined on appeal are as follows:

Did the trial judge err by denying the father the right to participate in the trial?
Did the trial judge err in failing to dismiss the amicus curiae?
Did the trial judge err in refusing to admit the affidavit of the father’s treating psychologist?
Did the trial judge err in failing to consider the importance of the status quo in determining the parenting schedule?
Did the trial judge err in imputing income to the father without an evidentiary basis?

[6] For the reasons that follow, the appeal is dismissed. The trial judge went to great lengths to accommodate the father and gave him ample opportunity to participate in the trial. There was no breach of natural justice. The father has not otherwise shown that the trial judge erred, either in her assessment of the child’s best interests or in imputing income to him for the purposes of support.

Motion for Fresh Evidence

[7] The father sought to have fresh evidence admitted on appeal. The evidence consisted primarily of the supervisor’s observation notes from the father’s supervised parenting visits following the trial. While the mother filed evidence responding to the father’s motion, she did not bring her own motion to admit fresh evidence. In reply to the mother’s evidence, the father also sought to file evidence about an incident at a concert in July 2022 and about alleged breaches of the trial judge’s parenting order.

[8] The father submits that the supervision notes are significant evidence bearing on a decisive issue. In his submission, they give a voice to J., who the father says is unhappy with the current parenting arrangements. Until the start of trial, the father had the majority of parenting time with J. When the father sought an adjournment after three days of trial, the trial judge ordered equally shared parenting on a “week about” schedule pending the resumption of trial. At the conclusion of the trial, the trial judge granted an order that J. would reside with the mother,

with a police enforcement clause, pending the release of her decision. As set out above, in her decision, the trial judge allowed the father one supervised visit per week and two weekly video calls during the first stage of parenting.

[9] The father points to statements attributed to J. in the observation notes to the effect that he misses his dad and wants to go back to his old life. He puts emphasis on J.’s statement in April 2023 that he does not “want to live like this anymore” and that he has thought about killing himself.

[10] The test for the admission of fresh evidence on appeal as reproduced from R. v. Palmer

(1979), 1979 8 (SCC), [1980] 1 S.C.R. 759, is set out in Bent v. Platnick, 2020 SCC 23, [2020] 2 S.C.R. 645, at

para. 50. The fourth criterion of the test, which is the most important here, is that the evidence must be such that if believed could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

[11] Where a case involves the best interests of the child, it may require “a more flexible application of the fourth Palmer criterion”: Barendregt v. Grebliunas, 2022 SCC 22, 469 D.L.R. (4th) 1, at para. 66. In determining whether fresh evidence should be admitted, the overarching consideration is the interests of justice: Barendregt, at para. 3.

[12] The proposed fresh evidence is not admissible because it could not be expected to have affected the result at trial. First, the evidence is consistent with the evidence at trial. It includes some statements of J. being unhappy with the parenting change. This was to be expected. As further discussed below, the trial judge found that the case had many of the markers of alienation. The father had been controlling and had regularly disrupted and intervened with J. during the mother’s parenting time. The trial judge was well aware of the strong bond between J. and his father but found overall that the father was not capable of acting in J.’s best interests.

[13] The mother has responded to the father’s proposed fresh evidence by pointing to other parts of the observation notes where the father causes J. emotional distress. For example, in a number of instances, the father discusses issues during supervision that he knows to be stressful for J., even after being encouraged by the supervisor to move on. The fresh evidence is not new in the sense that it follows the same themes as the evidence at trial and could be expected to lead to the same conclusions.

[14] The second problem with the evidence is that it provides only snippets of information relevant to the child’s best interests. It is not comparable to the fulfulsome evidence from multiple witnesses, including an assessor appointed under s. 30 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12, (“CLRA”) that was available to the trial judge. The father would be asking this court to re-weigh the child’s best interests based on the limited information only from the father’s visits with the child without the broader context and all evidence as to the child’s current circumstances. An endorsement denying a stay of the trial decision pending appeal provides one example of the more fulsome evidence that is missing. Ryan Bell J. quoted from a therapist jointly retained by the parties. The therapist stated that while J. continued to express sadness over not being able to see his father, he indicated he was enjoying his time with his mother and becoming more popular at his new school: G.S. v. S.B., 2022 ONSC 1542, at para. 42.

[15] Given the limited utility of the proposed fresh evidence, it could not be expected to have affected the result of the trial and should not be admitted. The motion is therefore dismissed.

Did the trial judge err by denying the father the right to participate in the trial?

[16] The father submits that it was a breach of procedural fairness for the trial to proceed without his participation. When the trial finally started in August 2022, he sought an adjournment for health reasons and in order to retain counsel, which the trial judge denied. He submits he was not able to effectively represent himself, with the result that the trial judge failed to receive and/or consider important evidence from him. Although the trial judge appointed amicus curiae, the father submits that the arrangement with the amicus broke down and the amicus should have been dismissed. In making these submissions, the father emphasizes that the standard of review for a breach of procedural fairness is correctness.

[17] When considering an allegation of a denial of natural justice, the court is required to evaluate whether the rules of procedural fairness were adhered to. “The court does this by assessing the specific circumstances giving rise to the allegation and by determining what procedures and safeguards were required in those circumstances in order to comply with the duty to act fairly”: London (City of) v. Ayerswood Development Corp. (2002), 2002 3225 (ON CA), 167 O.A.C. 120 (Ont. C.A.), at para. 10.

[18] In this case, examining all the circumstances, there was no breach of procedural fairness. It is undisputed that procedural fairness includes an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the trial judge: Baker

v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, at para. 22. As further detailed below, the father had this opportunity.

A. The father was allowed extensive time to retain counsel

[19] First, the father was allowed extensive time to retain counsel. The trial was initially scheduled to start in January 2022. At that time, the father advised the court that he had terminated the retainer of his counsel, who was by then his fourth over the course of the proceedings, and required more time to find new counsel. He also stated he could not self-represent due to health issues. The court granted an adjournment of the trial to May 2022, peremptory to the father. At the commencement of the May trial sittings, the father was ill with COVID-19 so the trial could not be called during the first week. The trial then was not reached in the May sittings and was rescheduled to start in August 2022.

[20] When the trial started on August 2, the father was self-represented. He asked that the trial be postponed due to health issues. The trial judge indicated that the trial would proceed. After receiving an unfavourable evidentiary ruling on the third day of trial, the father stated that he was having an atrial fibrillation and went to the hospital. The trial judge granted an adjournment of the trial to the September 2022 sittings to allow the father to attend to his health needs. She declined to grant him a longer adjournment to retain counsel since, by that point, he had already had eight months (since January 2022) to do so. I note, too, that on the first day of trial, when the trial judge asked the father for an opening statement, he replied that he would “have a lawyer write it,” implying that he had a lawyer available to assist him.

[21] The trial was scheduled to resume on September 19, 2022, now nine months from the original start date in January 2022. The mother brought a motion for the appointment of amicus curiae, which was granted. The trial was therefore rescheduled to allow amicus to prepare and restarted on November 29, 2022. The father did not attend, but the amicus reported that she had had extensive communication with him. She also had communicated with a lawyer who had been assisting him. The amicus relayed the father’s request for another adjournment.

[22] In short, the father was given many months to arrange representation by counsel. He failed to do so but had counsel available to assist him. The trial judge also safeguarded trial fairness by taking the exceptional step of appointing amicus to ensure evidence was called for the father and the mother’s evidence was tested. The denial of a further adjournment for the father to retain counsel did not breach trial fairness.

B. The father’s health did not impede a fair trial

[23] Second, the father’s health did not impede a fair trial. After the father attended the hospital in August 2022, the trial judge adjourned the trial. The father had provided a doctor’s report stating that stress from the court case was causing an extreme elevation of his blood pressure. The report suggested that an adjournment would be helpful “to get his blood pressure under better control as well as to organize legal support for himself.”

[24] However, when the trial resumed in September, the father simply sought further adjournments without new medical evidence nor any explanation as to how further delay would assist him in addressing his health. He at no time requested specific medical accommodations other than to submit evidence in writing (which was permitted) or to request an adjournment. As detailed above, he also did not retain counsel to represent him. In these circumstances, it was not a breach of procedural fairness to proceed with the trial.

C. The father was accommodated

[25] Third, the trial judge granted the father extensive accommodations to facilitate his participation in the trial. For example, the trial judge allowed the father to rely on an 876-page document as his evidence in chief rather than testifying. Contrary to a trial management endorsement requiring him to upload affidavit material in advance, the father uploaded this document to Caselines the night before the trial started. He admitted that he purposely withheld the document from the mother until “the last minute” because he felt it would give the mother an unfair advantage to have the information prior to trial.

[26] The trial judge also allowed the father to record the proceedings, subject to an order that he destroy the recordings after the trial. After the father provided an oral opening statement, he asked to provide a new opening statement in writing and the trial judge agreed. The trial judge similarly allowed him to provide written submissions regarding the admissibility of his expert’s evidence. When the father did not attend the mother’s motion for the appointment of amicus, the trial judge deferred it to the next day to give the father an extra opportunity to attend. These are just some of the many steps the trial judge took to accommodate the father and facilitate his participation.

D. The trial judge did not fail to consider important evidence

[27] The record also does not support the father’s submission that, as a result of his non- participation (or otherwise), the trial judge failed to consider important evidence supporting his position. It is trite law that the trial judge is not required to advert to every piece of evidence. This is particularly true when the trial judge is faced with an 876-page document. In any event, the trial judge either expressly or inferentially rejected the probative value of the points the father highlights on appeal.

[28] For example, the father relies heavily on a report from the Office of the Children’s Lawyer (“OCL”) dated June 6, 2018. The OCL never completed its investigation because the mother was going into treatment for her substance use, but the OCL did provide a report of the information gathered to that point. The father highlights the OCL clinician’s comment that the interaction between the mother and J. “appeared stiff.” The trial judge expressly addressed this at para. 34 of her decision, stating that the clinician’s comments about the father’s abusive communications were “far more concerning” than the statements about the mother’s stiff interactions with J. More importantly, the OCL investigation was incomplete and the report was dated more than four years before the start of the trial. It is clear in the trial judge’s decision that she viewed the mother’s parenting to have improved significantly since that time.

[29] The father relies on a consent order Shelston J. made in 2021 requiring the mother to complete drug testing. A temporary without prejudice consent order has little if any probative value. The trial judge made express findings that, following treatment, the mother had been sober since February 2020 except for a one-day relapse with alcohol in June 2020.

[30] The father also submits that, in view of evidence he provided, the trial judge should not have accepted the mother’s evidence as credible. He relies, for example, on emails from the mother’s father and stepmother in which they question the mother’s version of events and discuss concerns about the mother’s drug use. These emails were from late 2017 and May 2018, again more than four years before trial. The trial judge explained in her decision at para. 37 that the mother’s father, C.B., recognized a change in the mother in early 2020 because she demonstrated a commitment to addressing her issues. The emails from 2017 and 2018 are consistent with the trial judge’s findings.

[31] Contrary to the father’s submission, the trial judge’s decision to ignore “commentary” inserted into the pages and exhibits of the father’s 876-page document did not cause unfairness. The trial judge did not strike the material from the record, but said she would disabuse herself of the commentary that did not constitute admissible evidence. The commentary in many cases was argument, which is not appropriate in a document setting out the father’s evidence. The trial judge also admitted into evidence two prior affidavits sworn by the father. It remained open to the father to otherwise participate in the trial, including by making closing arguments. Moreover, the amicus did make written closing arguments with respect to the evidence and positions favourable to the father.

[32] The father also disputes the trial judge’s decision not to allow into evidence various video and audio recordings submitted by the father. This ruling is entitled to deference. The trial judge

found that the recordings she declined to admit had no probative value. There is no basis to interfere with her conclusion.

[33] In all the circumstances, the trial judge made extensive and fulsome efforts to assist the father and ensure he had a fair opportunity to present his case. The father requested repeated adjournments, but with no explanation as to how more time would assist him either with his health or to retain counsel. In the end, the father chose not to participate in the trial, other than by filing his extensive document, which the trial judge accepted. The father has not shown that the trial judge failed to consider his evidence. Instead, he disagrees with her factual findings. This does not constitute procedural unfairness.

Did the trial judge err in failing to dismiss the amicus?

[34] The father submits that the trial judge erred in failing to dismiss the amicus once it became apparent she was unable to fulfill her role. In the alternative, he says the trial judge should have declared a mistrial. I disagree.

[35] The amicus performed her role of presenting a case for the father and challenging the mother’s evidence. She called two witnesses for the father and cross-examined the mother’s witnesses. She also provided closing submissions to the trial judge.

[36] There can be little doubt that the role of the amicus in this case was challenging. Near the end of trial, the amicus advised the court that there had been a breakdown in her relationship with the father, such that she did not expect he would want her to help with his submissions. The father also appeared at the Zoom hearing to raise his own complaint that the amicus was not on his “side.”

[37] I am not persuaded that the trial judge’s refusal to dismiss the amicus caused a conflict of interest or otherwise interfered with trial fairness. The role of the amicus is not to represent one party: R. v. Kahsai, 2023 SCC 20, at paras. 41-42. As the trial judge expressly clarified in her endorsement appointing the amicus, the amicus was not to take instructions from the father nor was he entitled to terminate her role: G.S. v. S.B., 2022 ONSC 5383. Indeed, the father told the court that the amicus had advised him to retain counsel and had found counsel for him to retain, though he failed to do so. When the amicus raised the breakdown in her relationship with the father, the trial judge stated she could make her own closing submissions, which would not bind the father. The father would also be entitled to make his own submissions.

[38] I have reviewed the cross-examination excerpts that the father says show a conflict in the amicus’s role. They do not demonstrate that the amicus had become an advocate for the mother. Some questions use rhetorical techniques, such as acknowledging a weakness with the goal of eliciting an admission. These questions were not inappropriate. Overall, the father has not shown that the amicus undermined his case or took a position that conflicted with his key strategic choices: see Khasai, at paras. 45-46, and 62. Therefore, this ground of appeal fails.

Did the trial judge err in not admitting the affidavit of the father’s treating psychologist?

[39] The father submits that the trial judge erred in refusing to admit the affidavit of his treating psychologist as a participant expert. He submits that even if the trial judge did not accept the psychologist’s opinion evidence, she should have permitted him to testify on other issues, such as the number and content of his visits with the father.

[40] The trial judge’s decision not to admit the affidavit is amply supported by the record. As the trial judge noted in her ruling, for the court to accept evidence from an expert, it needs to be satisfied that the expert is independent and impartial: White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182, at paras. 32, and 45-46. Here, the trial judge stated that the psychologist appeared to have been retained by the father to act in the role of a litigation expert in the guise of a participant expert. For example, the psychologist relied almost entirely on information provided to him by the father to opine on the mother’s diagnosis, current functioning, and treatment, as well as to opine on J. and to raise concerns with the report of the assessor appointed under s. 30 of the CLRA. There was no error in the trial judge’s conclusion that the psychologist’s “biased, unbalanced opinions based…almost exclusively on what he [had] been told by Mr. S for five years outweigh[ed] any benefit his evidence would provide.”

[41] Contrary to the father’s submission, the trial judge also did not err in refusing to allow the psychologist to testify about factual matters, such as how many appointments the father had attended. First, the trial judge accepted the evidence of the number of appointments, which she summarized in her ruling on admissibility. This is also evidence that the father could have provided.

[42] Second, evidence of what was discussed at the appointments either would have constituted hearsay or, if it was relevant to the father’s diagnosis and treatment, would have required opinion evidence. The trial judge specifically addressed why the psychologist had failed to provide anything helpful on this topic. She stated that, although in his affidavit the psychologist indicated he had diagnosed the father with Post Traumatic Stress Disorder (“PTSD”), he provided no information about his diagnostic process, treatment of the father, or the father’s progress in managing his PTSD. In view of this, there was no error in refusing to allow the psychologist to testify.

Did the trial judge err in failing to consider the importance of the status quo in determining the parenting schedule?

[43] The father submits that in making her parenting orders, the trial judge erred by failing to consider the status quo and other factors relevant to the child’s best interests as set out in the CLRA, such as the nature of the child’s relationship with each parent and whether the father was capable of caring for and meeting the needs of the child. He underscores that for long periods of time since the parties’ separation in late 2013, he parented J. almost exclusively while the mother struggled with mental health and addiction issues.

[44] I disagree that the trial judge erred in her analysis of J’s best interests. Subsection 24(2) of the CLRA requires the court, in determining the best interests of the child, to give primary consideration to the child’s physical, emotional and psychological safety, security and well- being. That is what happened here. The trial judge was well aware of the status quo and of the strong bond between J. and the father. She stated at para. 105 of her reasons that “J. is very closely bonded to G.S. and he misses him when he is with S.B.” She went on to say that, under normal circumstances, she would have ordered shared parenting on a week on/week off basis.

[45] However, she did not order a 50/50 schedule here because of the harm the father was causing to J. She found the case had many of the indicators of alienation. The father had psychologically harmed J. by interfering in the mother’s parenting time and by making J. feel responsible for his wellbeing. She considered his behaviour to constitute a pattern of coercion and control that fell within the definition of “family violence” in s. 24(4) of the CLRA. As she said at the outset of her decision, at para. 3, “G.S. is incapable of recognizing [the family violence he has perpetrated] and has taken no steps to prevent further family violence from occurring or to improve his ability to care for and meet the needs of J.” Overall, she found the father to be incapable of making decisions in J.’s best interests.

[46] In these circumstances, the trial judge found it was necessary for J. to reside with the mother for a period with limited parenting time for the father. This was not because she did not appreciate the status quo or the father’s bond with J., it is because she found it in J.’s best interests to have a break from the pressure he was under and to allow the father to engage in the services she ordered. The trial judge made an order that prioritized J.’s physical, emotional and psychological safety, security and well-being, as required. This ground of appeal must fail.

Did the trial judge err in imputing income to the father without an evidentiary basis?

[47] In his written submissions, the father argued that the trial judge had little evidentiary basis for imputing income of $50,000 to him. He did not pursue this argument orally. I find it to be unpersuasive.

[48] The Court of Appeal has recently emphasized that “disclosure is the lynchpin of our family law system”: Ferguson v. Ferguson, 2022 ONCA 543, at para. 28. Without adequate, accurate, and timely financial disclosure, trial judges are left in the unenviable position of determining income on the limited evidence available. Here, the father did not provide the financial disclosure necessary to properly determine his income. He was on notice that this could give rise to an adverse inference.

[49] The trial judge did not choose an arbitrary figure for his income. She relied on the evidence available to her. She noted that the father previously had an income of almost $135,000 and that he appeared to have made no efforts to become employed since his nightclub closed due to COVID-19. His lifestyle was reflective of a person who had access to capital, and he owned a house worth at least $1.65 million. This evidence supported her imputation of income for support purposes in the amount of $50,000.

Disposition

[50] The appeal is therefore dismissed.

Costs

[51] The parties agreed that the successful party on appeal would be entitled to costs of

$30,000. The father therefore shall pay $30,000 to the mother for the costs of the appeal.

[52] In his written material, the father stated that he sought an order setting aside the costs award at trial on the basis that it was not proportionate, was punitive in nature, and was contrary to accepted costs principles. The trial judge awarded costs to the mother, who was entirely successful at trial, in the amount of $146,000: G.S. v. S.B., 2023 ONSC 1594. The trial judge persuasively justified this figure on the basis that the mother had provided an offer to settle that was more favourable than the outcome at trial, the mother was required to prepare for trial five times, and the father had behaved at least unreasonably or, at worst, in bad faith. The father had also failed to pay all previous costs awards. The father has not shown that there is a basis to interfere in the trial judge’s exercise of discretion in making the award.

[53] The mother seeks a variation of the existing order for security for the trial costs. This order places a charge on the father’s real property for the outstanding costs owed to the mother. However, a portion representing much of the trial costs, in the amount of $130,000, was to be held in trust upon sale of the property pending the resolution of the appeal. The order of Ryan Bell J. dated May 25, 2023, is therefore varied such that the trial costs shall be paid to the mother forthwith upon sale of the property and not held in trust.

O’Brien, J.

I agree

Nishikawa, J.

Released: October 10, 2023

I agree

Schabas, J.

CITATION: G.S. v. S.B., 2023 ONSC 5646

DIVISIONAL COURT FILE NO.: DC-23-2764

DATE: 20231010

ONTARIO SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Nishikawa, O’Brien and Schabas JJ. BETWEEN:

G.S.

– and –

S.B.

Appellant

Respondent

REASONS FOR JUDGMENT

O’BRIEN, J.

Released: October 10, 2023

G.S. v. S.B., 2023 ONSC 5646

Case Summary

Overview

Motion for Fresh Evidence

Did the trial judge err by denying the father the right to participate in the trial?

Did the trial judge err in failing to dismiss the amicus?

Did the trial judge err in not admitting the affidavit of the father’s treating psychologist?

Did the trial judge err in failing to consider the importance of the status quo in determining the parenting schedule?

Did the trial judge err in imputing income to the father without an evidentiary basis?

Disposition

Costs

Nishikawa, O’Brien and Schabas JJ. BETWEEN:

– and –

Judges

Counsel

Parties

Areas of Law

Fact Patterns

Financial Outcomes

Issues

Statutory Provisions 3

Legal Tests 1

Legislation 3