CITATION: Jurrius v. Rasulli, 2024 ONSC 1197
DIVISIONAL COURT FILE NO.: 538/23
DATE: 20240228
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Firestone RSJ, Charney and Leiper JJ.
BETWEEN:
ISRAIL RASSULI
Appellant
- and -
ELYA RACHELLE JURRIUS
Respondent
Zahra Taseer, for the Appellant
Michael Stangarone and Julia McArthur, for the Respondent
HEARD at Toronto: February 15, 2024
Leiper, J.
reasons for judgment
[1] The Appellant, Israil Rassuli (“the Father”) appeals from the June 3, 2022 order of Bennett J. following a seven-day trial. The father also seeks leave to appeal the subsequent costs order dated October 28, 2022.
[2] The order established a final parenting schedule for T., the seven-year-old child of the parties’ relationship. The order also dismissed the Father’s request to change T’s name, and imputed income to the Father for the purpose of paying retroactive and ongoing support.
[3] The costs order required the Father to pay the Respondent, Elya Rachelle Jurrius’ (“the Mother”) costs of the trial in the amount of $161,606.69. In determining the issue of costs, the trial judge noted several instances of bad faith on the part of the Father, considered the offers to settle served by the Mother and concluded that costs should be fixed on a substantial indemnity basis.
[4] In brief, I find that the orders made by Bennett J. were amply supported by the record, the trial judge’s findings of credibility and the positions advanced by the parties at trial. I would dismiss the appeal for the reasons below.
Standard of Review
[5] An appellate standard of review applies to this appeal: The standard of review on a question of law is correctness. On a question of fact, the standard requires a finding of a palpable and overriding error to support intervention by the appellate court: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 8, 26 and 27.
[6] On questions of mixed fact and law, where a legal principle can be extracted from a question of mixed fact and law, the decision is reviewable on a correctness standard. Where there is no extricable error, the palpable and overriding error standard applies. A “palpable” error is an obvious or clear error. An appellate court will not interfere with findings of fact unless the error can be plainly identified and that error is shown to have affected the result: Housen v. Nikolaisen, at paras. 1, 10 and 36-37.
The Issues on Appeal
[7] The parties have defined the issues on appeal as follows:
a. Did the trial judge err in his analysis of the question of the parenting schedule?
b. Did the trial judge err in relying on hearsay evidence to make a finding that the Father had communicated a threat to the harm the Mother?
c. Did the trial judge err in imputing income to the Father?
d. Did the trial judge err in declining to allow a change of T’s name?
e. Did the trial judge err in his determination of costs?
[8] I will consider each area in turn.
Did the trial judge err in his analysis of the question of the parenting schedule?
[9] At the time of trial, T. aged 7, had lived primarily with the Mother for most of his life. The Mother is a part-time occasional school teacher. The Father took the position that he was not employed at the time of the trial. Both parties have since re-partnered.
[10] Prior to trial, the parties were following a parenting schedule in accordance with a temporary order made by Kaufman, J. The Father had moved for increased parenting time. Kaufman J. ordered that the Father have parenting time on alternate weekends and overnight on Wednesdays. Further, The parties agreed to temporary and without prejudice additional parenting time, on a week about basis during the summer of 2021.
[11] The Mother raised issues at trial with the longer periods of parenting time during the summer, because T. was returning to her care and making disparaging remarks about her, including telling her that the Father had said she was a “bad mommy.” At T.’s first day of school, the Father labelled T.’s items with his middle name, rather than his given name. The Father had contributed the middle name to T’s full legal name when he was born. This confused the child and the staff at his school.
[12] The Mother also raised issues about the Wednesday night overnights because of the driving time required relative to those overnights, and T.’s attendance at school on Thursday morning in the Mother’s part of the city.
[13] The Mother proposed a plan of care that would reduce driving time and address the issue of the Father’s disparaging of her to T. She proposed that the Father have evening parenting time on Wednesdays rather than overnights. During the summer, the Mother proposed the Father would have two weeks of parenting time.
[14] The witnesses at trial were the Mother, Andrew Jurrius (T’s maternal grandfather); the Father; Ahmad Rassuli (T’s paternal uncle); and Sandra Garibotti (from the Office of the Children’s Lawyer).
[15] The trial judge found that the Father’s requested 6 out of 14 day parenting schedule would mean T. would have more transitions and increase the driving time for him to accomplish those transitions. The trial judge directed himself that he was required to consider the best interests of the child under the Children’s Law Reform Act, R.S.O. 1990, C.12, s. 24. He analysed the parties’ respective positions on the issue of the Wednesday overnight versus evening visits.
[16] The Father submits on appeal that the trial judge placed too much emphasis on two dated events. The first was an incident in which the Father had placed a lighter in the shape of a gun on T’s crib when he was an infant. The second incident was when the Father had shaved T.’s head at age 18 months, after the parties had a failed mediation.
[17] The Father submits that the trial judge unduly emphasized his conduct at an earlier point in the relationship with the Mother, and that the trial judge was “punishing” the Father for that conduct by reducing his parenting time. The Father argues that the trial judge lost his focus on the question of the best interests of T. as he was required to do, thus erring in his application of the law to the facts before him.
[18] I disagree. While the trial judge made findings about these two incidents, these findings were made in the context of evidence, accepted by the trial judge, regarding the Father’s attempts to dominate the Mother during their relationship and evidence of violence towards the Mother. The trial judge found as fact that “there has been domestic violence by the Respondent father toward the Applicant mother.” This is a recognized aspect of how harm can be done to children, directly or indirectly, “if the victimized parent's physical, emotional and psychological well-being are compromised, since these consequences in turn often negatively impact their ability to meet the child's physical and emotional needs.”: McBennett v. Danis, 2021 ONSC 3610, 57 R.F.L. (8th) 1, at para. 85. This issue was squarely before the trial judge and he was entitled to give this evidence due consideration as it affected T’s best interests.
[19] The trial judge had the benefit of evidence from the parties and members of their family about the relationship. He concluded that the Mother was credible and that she tried to be “fair” to the Father during her evidence. The trial judge found that although he would not go through “every instance” in which the Court found the Father lacked credibility, he cited examples including:
i. the claim that he had been “ambushed” by the Mother when she first presented an agreement on the issue of “child custody” to him—the trial judge found that text message established that the Father’s account was “totally false.”
ii. The Father’s claim that the Mother had fabricated evidence that he had strapped a replica gun (a lighter) to T’s crib when he was an infant, a position he abandoned at trial when he admitted that he had done so—the trial judge found that his account was a “huge red flag.”
iii. The Father’s insistence that his shaving T’s head was not coincidental with a failed mediation with the Mother, even when presented with correspondence that linked those two events—the trial judge found that this was a “glaring” example of the Father’s propensity to fabricate evidence.
iv. Conflicting evidence about the state of his physical and mental health, depending on the audience and purpose for those statements—this and other more minor examples all informed the trial judge’s findings of credibility.
[20] Contrary to the position argued by the Father, I see no evidence that the trial judge did not appreciate the timing of some of the incidents or that he allowed his findings about those incidents to colour his findings.
[21] The trial judge considered the history of care and showed that he was aware of the current parenting arrangements. The Mother gave evidence, which was accepted by the trial judge, that those arrangements were not in T’s best interests and that they had emanated from a motion at which the Father swore a false affidavit and misled the Court to support the temporary order that was in place at the time of trial.
[22] The trial judge gave comprehensive reasons. In doing so, he was exercising his discretion in determining the issues of parenting based on the unique factual matrix he was presented with. Our role is not to substitute our views for that of the trial judge, nor to second guess his findings of credibility where he had the benefit of seeing and hearing from all the witnesses and gave clear, rational explanations for the findings that he made. The trial judge was in the best position to determine the best interests of T.
[23] As the Court of Appeal in Bors v. Bors, 2021 ONCA 513, 60 R.F.L. (8th) 36, at para. 19 reiterated, “[A]n appeal court must not retry parenting cases, but instead “approach the appeal with considerable respect for the task facing a trial judge in difficult family law cases, especially those involving custody and access issues”: C.S. v. M.S., 2010 ONCA 196, 262 O.A.C. 225, at para. 4.
[24] The trial judge applied the law correctly to the facts as he found them, supported by the evidence and his findings of credibility. I would not give effect to this ground of appeal.
Did the trial judge err in relying on hearsay evidence to make a finding that the Father had communicated a threat to harm the Mother?
[25] The trial judge made a finding that on a balance of probabilities “the Respondent father did show a gun to the child and that the Respondent father did make some form of threat of harm to the Applicant mother in the presence of the child.” Although this finding was based on the hearsay evidence given by the Mother, the evidence of the Father’s statement about a gun was tendered to explain her decision to report to the police. The Father gave evidence about the alleged statement and denied it, stating that he had said nothing but “good stuff” about the Mother to his son, a statement which was contradicted by other evidence.
[26] Trial counsel (who did not serve as appellate counsel) did not object to the hearsay evidence at trial. There was other evidence of serious violence by the Father toward the Mother, which would support a finding that this piece of hearsay evidence, in isolation was not unfair in the context of the whole of the evidence. The Court of Appeal has recognized that there may be no unfairness where an appellant has failed to object at the trial: D.D. v. Children’s Aid Society of Toronto, 2015 ONCA 903, 344 O.A.C. 89, at para. 40.
[27] I would not give effect to this argument on appeal
Did the trial judge err in imputing income to the Father?
[28] The trial judge reviewed the evidence from the Father on his efforts to become employed and made findings that the Father made no such efforts and had attempted to claim that injuries from a motor vehicle accident left him unable to find work. The trial judge referred to Drygala v. Pauli, 61 O.R. (3d) 711 (C.A.) which describes the correct test for imputing income. The trial judge concluded that he had no difficulty imputing income, based on his findings for support purposes. The trial judge held that the Father’s income should be imputed in the amount of $30,000 in 2018, increasing to $35,000 from 2019 – 2021, $40,000 in 2022, and $45,000 in 2024.
[29] In Hickey v. Hickey, [1999] 2 S.C.R. 518, at paras. 11-12, the Supreme Court of Canada recognized the discretion involved in making a support order. The Court found that this discretion is preferably exercised by the judge who has heard from the parties. This “avoids giving parties an incentive to appeal judgments and incur added expenses in the hope that the appeal court will have a different appreciation of the relevant factors and evidence.”
[30] While the trial judge did not give detailed reasons as to how he arrived at the breakdown of imputed income, his findings of fact and credibility are in line with the modest amounts of income imputed to the Father, given his level of education. It is important to recognize that the Father had also not complied with financial disclosure orders that would have permitted a more detailed analysis of his financial status. The trial judge was entitled to make reasonable inferences, and his findings are supported by the evidence. This includes evidence that the Father was able to pay down $52,000 in consumer debt at a time when he was not working and his concession that he had only attended one job interview in over four years, having presented a resume that described him as suffering from a “severe injury” that prevented him from lifting more than 20 pounds and required him to take frequent breaks. The trial judge did not accept this evidence based on the conflicting medical records submitted by the Father.
[31] I would not give effect to this ground of appeal.
Did the trial judge err in declining to allow a change of T’s name?
[32] The Father submits that the trial judge failed to consider the involvement of the Father’s family with T and that a child’s name can strengthen a bond between a parent and a child as part of the child’s identity. He submits that as an incident of parenting time, the best interests of the child must be considered and that the trial judge failed to do so.
[33] The trial judge noted that the parties were subject to a final order made by McGee, J. on the issue of decision-making authority. The Father did not make any motion to change this aspect of the order to establish that there had been a “material change” that would justify altering this aspect of decision making. Nevertheless, the trial judge considered that if he had had jurisdiction to alter this aspect of the final order, he would have rejected the Father’s request.
[34] The trial judge found that such a change would not be in T’s interests because it could be confusing at school. The trial judge also referred to evidence that the Father had at one point threatened to kidnap the child and take him to Afghanistan. The trial judge observed that this would be easier if he shared a surname with T. Finally, the trial judge turned his mind to the father-son bond and concluded that a name change was not necessary for the strength of that relationship.
[35] I find that the trial judge made no error in principle or in law in arriving at his conclusions concerning the change of name. He assessed this request on a best interests of the child basis and concluded that it would not be in T’s best interests to accede to the Father’s request.
Did the trial judge err in his determination of costs?
[36] I would not give effect to the submission that the trial judge erred in exercising his discretion to determine costs or erroneously made a finding of bad faith against the Father. The trial judge had the benefit of written submissions, evidence of prior offers to settle, and his written reasons on costs are detailed and address the positions of the parties before him. They reveal no legal error.
[37] The trial judge found that the Mother had been the successful party. He considered her prior offers to settle, undertaking a detailed review of the prior offers to settle pursuant to Rule 18(16) of the Family Law Rules O. Reg. 114/99. He concluded that the time spent by her counsel was reasonable given the issues, the experience of counsel and the quality of representation. He also found that the Father had filed no evidence regarding the amount paid to his counsel to challenge his reasonable expectations of the cost of representation, and although the Father also sought his costs after the trial judge rendered his judgment on the trial issues. These are findings of fact and there is no basis to interfere with them.
[38] Further, the trial judge also found that the Father had acted in bad faith. Rule 24(8) of the Family Law Rules authorizes the court to decide costs on a full recovery basis where a party has acted in bad faith. Courts have found bad faith where a party attempted to deceive the other party or the Court. A party can be found to be acting in bad faith when their conduct increased costs to such an extent “that they must be taken to know their behaviour is causing the other party major financial harm without justification”: Scalia v. Scalia, 2015 ONCA 492, 126 O.R. (3d) 241, at para. 68; Benzeroual v. Issa and Farag, 2017 ONSC 6225, 97 R.F.L. (7th) 111, at para. 20.
[39] The trial judge provided detailed reasons for his findings of bad faith concerning the Father including:
a. The providing of a false affidavit at the motion before Kaufman, J. about the replica gun attached to T’s crib when he was an infant;
b. The Father’s resistance to acknowledging the timing of his shaving T’s head and the failed mediation, which led to cross-examination on the point that was not necessary if he had admitted the obvious temporal connection; and
c. Evidence that the Father had coached his witness to give self-serving evidence.
[40] Given that the costs order was appealed along with the trial order, leave is not required. Nevertheless, I would not give effect to this ground of appeal.
Conclusion
[41] The appeal is dismissed. On the agreement of the parties, costs are ordered in favour of the Respondent in the all-inclusive amount of $20,000.
Leiper, J.
I agree _______________________________
Firestone RSJ
I agree _______________________________
Charney J.
Released: February 28, 2024
CITATION: Jurrius v. Rasulli, 2024 ONSC 1197
DIVISIONAL COURT FILE NO.: 538/23
DATE: 20240228
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Firestone RSJ, Charney and Leiper JJ.
B E T W E E N:
ISRAIL RASSULI
Applicant
- and -
ELYA RACHELLE JURRIUS
Respondent
REASONS FOR JUDGMENT
Leiper J.
Released: February 28, 2024