ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 5879/12
DATE: 2012-09-10

BETWEEN:

Cassie Dawn Mackereth, sometimes known as Cassie Dawn Henderson, or Cassandra Dawn Mackereth, or Cassandra Dawn Henderson
Applicant/Appellant on Appeal

– and –

Philip Lee Henderson
Respondent/Respondent on Appeal

P. Allen Skuce, for the Appellant
Mervin L. Riddell, for the Respondent

HEARD: August 29, 2012 at St. Thomas

HEENEY J.:

1This is an appeal of the judgment of Mr. Justice M. O’Dea of the Ontario Court of Justice dated April 4, 2012, in which he varied his own order of February 6, 2009 pursuant to a Motion to Change brought by the Respondent (“father”).

2The initial order, made pursuant to Minutes of Settlement, awarded joint custody to both parties, and provided that the father would have the children in his care and control on the days when he is not working. Although the order didn’t expressly say so, this meant that the children would be in the care and control of the Appellant (“mother”) at all other times. The net effect of the order was that the children’s primary residence was with the mother, while the father had access on weekends.

3In his judgment of April 4, 2012, the trial judge varied the prior order, and awarded sole custody to the father. The mother received an order for specified access, including alternate weekends. The mother appeals from that judgment.

Facts:

4The parties met in 2004 and married in January, 2005. There are two children born of that relationship: Charity Rayne Henderson, born […], 2005, and Kylah Mackenzie Henderson, born […], 2006.

5The parties separated on August 29, 2008. There was an altercation at the time of separation, which was reported by the mother to Woodstock CAS, who in turn reported it to the police. The father was arrested and charged with six counts of assault, one of which related to the incident and five of which were historic. His terms of release prohibited any direct or indirect communication with the mother. The mother subsequently obtained a without-prejudice order for custody, which made no provision for access by the father. That situation was changed when an interim order was made on October 29, 2008, following a contested motion, which placed the children in the mother’s care on days when the father was working, and in his care on his days off.

6It was that interim order that appears to have formed the basis for Minutes of Settlement entered into between the parties dated December 8, 2008. These Minutes resulted in the final order of O’Dea J. dated February 6, 2009 which is described in para. 2 above.

7During the fall of 2009 and the spring of 2010, the father made four or five complaints to the CAS about suspicious bruises on the children. He alleged that the mother’s (now former) boyfriend, Rob Chase, was physically abusing the children. Each and every allegation was investigated by the police and by CAS, and each one was found to be without foundation.

8Not satisfied with the response of the CAS, the father commenced a Motion to Change on May 5, 2010, in which he sought sole custody of the children. The primary grounds for the motion were the same allegations of physical abuse of the children that had already been investigated.

9The mother brought a Cross-Motion to Change in response, in which she also sought sole custody. The primary ground alleged by her to support her cross-motion was that the father was repeatedly denigrating her to the children, and repeatedly complaining about her parenting and making unfounded allegations to CAS.

10An investigation was done by the Office of the Children’s Lawyer, which generated a report dated May 9, 2011, authored by Darryl DeRoches. He recommended that sole custody be awarded to the mother, both in his report and in his testimony at trial.

11Family and Children’s Services of St. Thomas-Elgin also supported an award of sole custody to the mother. The child protection worker who was assigned to the file from February 2010 to October 2011 was Dana Lawrence. She was of the view that the children were at risk due to the controlling behaviour of the father. He insisted on speaking to the children on the telephone every single day, and often several times each day. When the mother refused or neglected to take his calls, consequences ensued, which included the father showing up at the mother’s residence and unilaterally taking the children away, or calling the police on her. Ms. Lawrence saw this as a form of harassment, which interfered with the mother’s ability to establish a stable routine for the children.

12The trial judge essentially dismissed the evidence of both Mr. DeRoches and Ms. Lawrence, and awarded sole custody to the father. He concluded that the mother’s apparent stress and deficits as a parent were related not to the father’s controlling behaviour but instead to the mother’s anxiety, depression, adult ADD and other related problems that go back many years. It is that order which is now under appeal.

Issues:

13Four issues were argued on this appeal:

1. That the trial judge erred in law in varying the order of February 6, 2009, despite having found as a fact that no material change in circumstances had been proven;

2. That the trial judge created a reasonable apprehension of bias by embarking on his own lengthy cross-examination of the mother’s key witness, Dana Lawrence, in which he challenged her evidence and put forth his own theory of the case. Furthermore, the trial judge denied procedural fairness to the mother by refusing to allow her counsel to ask Ms. Lawrence any further questions following the trial judge’s cross-examination;

3. That the trial judge erred in the manner in which he summarily dismissed the report and testimony of the social worker from the Office of the Children’s Lawyer;

4. That the trial judge failed to properly take into account evidence of the father’s violence towards the mother, as he is required to do by s. 24(4) of the Children’s Law Reform Act , R.S.O. 1990, c. C.12.

Standard of Review:

14It is not the function of this court to retry the case. This court may only interfere with the decision of the trial judge if the trial judge erred in law, or unless this court finds a palpable and overriding error in the findings of fact made by the trial judge: Housen v. Nikolaisen , 2002 SCC 33 () , [2002] 2 S.C.R. 235. If there is some evidence upon which the trial judge could have reached his factual conclusions, this court will not intervene.

Issue #1 – No Material Change in Circumstances:

15In his written endorsement, the trial judge referred to s. 29 of the Act, which reads as follows:

29. A court shall not make an order under this Part that varies an order in respect of custody or access made by a court in Ontario unless there has been a material change in circumstances that affects or is likely to affect the best interests of the child.

16He then went on to cite the leading case from the Supreme Court of Canada on variation of a custody and access order, and provided the following summary of the law at pg. 8 of his reasons:

A material change is shown by (1) a change in the condition, means, needs or circumstances of the children, (2) which materially affects the child and (3) which was either not foreseen or could not have reasonably been contemplated by the judge who made the original order: Gordon v. Goertz , 1996 191 (SCC) , [1996] 2 S.C.R. 27 (S.C.C.) .

17He then reviewed the father’s evidence and concluded that the father’s complaints about the mother’s ability to parent were either known by the father or must reasonably have been contemplated by him at the time of the settlement agreement. He then made the following finding, at the bottom of pg. 8:

On the father’s evidence, I would not find material change but on the evidence as a whole it is impossible not to change the agreement.

18In case there were any doubt that the trial judge was making an express finding of fact that no material change in circumstances had been proven, he said the following at pg. 9 of his reasons:

It is not in the interests of the children that they continue to be exposed to the conflict the agreement has created. In essence, even though the father did not meet the third criterion in Gordon v. Goertz , best interests trumps his failure.

19In Litman v. Sherman , 2008 ONCA 485 () , [2008] O.J. No. 2398 (C.A.), the Ontario Court of Appeal was considering a situation very much like the one before this court. An application to vary a custody order, which had been made on consent of the parties, was before the court below. The trial judge varied the previous order, without having made a finding that there had been a material change in circumstances.

20Epstein J.A., speaking for the court, said the following, at paras. 25-6:

The pivotal point the father raises is that the trial judge’s jurisdiction to interfere with a final order pertaining to custody must be grounded on a finding that there has been a material change of circumstances between the time the previous order was made and trial. According to the father, the trial judge made no such finding, nor was any such finding available to her on the evidence; as such her order cannot stand. I agree.

In Gordon v. Goertz , 1996 191 (SCC) , [1996] 2 S.C.R. 27 at para. 10 , the Supreme Court held that before a court can consider the merits of an application for variation, it must be satisfied that there has been a material change in circumstances since the last custody order was made. To be more specific, McLachlin J. held at para. 13 that the trial judge must be satisfied of (1) a change in the condition, means, needs or circumstances of the child, (2) which materially affects the child, and (3) which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order. If the applicant is unable to meet this threshold requirement, the inquiry can go no further.

21The case before this court is even stronger than Litman . Whereas the trial judge in that case merely failed to make a finding of material change, the trial judge in the present case made an express finding that no material change, as defined by Gordon v. Goertz , had been proven. As a matter of law, the only conclusions that logically flow from this are that the inquiry should have gone no further, and that the variation order made by the trial judge cannot stand.

22Instead of simply dismissing the case, the trial judge, in his reasons, conducted a wide-ranging review of the entire history of the couple, including a consideration of evidence as to the mother’s housekeeping abilities that predated the separation, well before the order that was sought to be varied. He criticized the mother for failing to provide responding evidence to that historical evidence, even though her counsel made it clear on the record that her evidence was intended to be focussed on changes in circumstances since the previous order was made.

23It is clear from a review of the trial judge’s reasons that he made his decision based on a consideration of the best interests of the children, without regard to the February 6, 2009 custody order – an order which is, at law, assumed to be correct. At pg. 3 of his reasons, he referred to the order, and then said this:

The only term of the order relevant for today’s purposes is paragraph 4 which states that both parents “shall have the same rights as the other to obtain information with regard to the health, education and well-being of the children and to this end, either party shall execute releases that may be reasonably required by the other to ensure that they have access to this information.”

24One would have thought, in a case of this kind, that paragraphs 1 and 2 of the order, which provide for joint custody of the children and which define the time that the parties will have care of the children, would be highly relevant to the issues that the trial judge was being called upon to decide.

25Mr. Riddell, for the father, relies on Montgomery v. Montgomery , 1992 8642 (ON CA) , [1992] O.J. No. 2299 (C.A.) as standing for the proposition that the court may vary a previous custody order based solely on a consideration of the best interests of the children, even where no material change in circumstances has been proven.

26At pg. 4 of that decision, Abella J.A. (as she then was), speaking for the court, referred to s. 29 of the Act, and commented as follows:

The legislation reflects an intention to make custody and access orders as secure as possible in the interests of permitting a child and his or her parents to regulate their lives in accordance with clearly understood and predictable expectations. The value of such finality is obvious as is the mischief it is intended to avoid: it is more conducive to a healthy emotional environment for children and their custodians if they are free from arbitrary litigation. The change must therefore be of a material rather than of a momentary kind. The section is clearly designed to discourage spurious applications, particularly, in my view, those which reflect more on antipathy between parents than an interest in the child’s welfare.

But it cannot be said that its purpose is to create so onerous a presumption or burden in favour of the earlier order that the child’s best interests are sacrificed to it. While the section may very well mean that in most cases finality prevails, it cannot mean that finality prevails for its own sake. While the section refers to a material change in circumstances, these circumstances are tied in impact or potential impact to the child’s best interests.

27If the reasons of Abella J.A. can be read as standing for the proposition that a custody order may be varied based solely upon a consideration of the best interests of the children, irrespective of whether a material change in circumstances has been proven, I note that this decision predates both Gordon v. Goertz and Litman . Since such an interpretation places Montgomery in direct conflict with those cases, I must conclude that the latter cases prevail.

28Furthermore, any comments to that effect would be obiter dicta , since a material change in circumstances was found to exist in Montgomery . At pg. 5, Abella J.A. said the following:

Wright J., having heard the evidence, was satisfied that the stress had only increased with time, both for the child and for the mother. He concluded that this stress was a material change from the circumstances before Cosgrove J. In addition, the trial judge observed that Cosgrove J. had heard no viva voce evidence, nor had he given any reasons for his access order.

I agree with his assessment. The stress was cumulative and unrelenting, and in its intensity constituted a material change.

29Mr. Riddell also relied on McCowan v. McCowan (1995), 1995 1085 (ON CA) , 24 O.R. (3d) 707 (C.A.), where the court stated, at p. 712, the following:

In my view, it is well established that a consent judgment may be set aside on the same grounds as the agreement giving rise to the judgment. These grounds go to the formation of the agreement, not to its subsequent performance.

30This case has no relevance to this appeal. There is no suggestion that the Minutes of Settlement are invalid or should be set aside due to some defect in the formation of the agreement. The agreement was in writing and was duly executed by the parties, both of whom were represented by counsel at the time and had the benefit of independent legal advice.

31Nor is this case similar to Kroupa v. Stoneham , 2011 ONSC 5824 () , [2011] O.J. No. 4350 (S.C.J.), also relied upon by the father, where a consent order was varied. In that case, the court found the agreement to be invalid because the rights of the child to regular access to the non-custodial parent, as well as the child’s right to child support, had been bargained away. Far from bargaining away the right of the children to access with both parents, the Minutes of Settlement in the case at bar provide for an ample sharing of the children’s time between their parents, as well as providing for monthly child support payable to the mother.

32I conclude that the trial judge erred in law in making an order that varied the custody order of February 6, 2009, despite having found as a fact that there had been no material change in circumstances since the making of that order. Accordingly, the order of April 4, 2012 cannot stand.

Issue #2 – The Trial Judge’s Cross-Examination of Dana Lawrence:

33Although my conclusion with regard to issue #1 is sufficient to dispose of this appeal, I will deal with the second issue as well because, in my view, it is also sufficient on its own to warrant an order allowing this appeal and directing a new trial.

34As already noted, Dana Lawrence, the child protection worker from Elgin CAS, was a key witness for the mother. She was of the view that the father’s constant telephone calls created and perpetuated a situation of stress and conflict that posed a risk for the children, and interfered with the mother’s ability to properly care for the children. She was of the view that sole custody of the children should be awarded to the mother, and that the father’s telephone access should be restricted to a defined and appropriate level.

35Following the completion of examination-in-chief, cross-examination and re-examination of this witness, the trial judge began questioning her, at pg. 398 of the transcript. That examination continued for nine pages, to pg. 407. Mr. Skuce, for the mother, characterizes this questioning as cross-examination of the witness by the trial judge, and I agree that this is a fair description of many of the questions. The following extract from pg. 405 will illustrate:

Q. Now, I want you to listen very carefully to this question. Children who misbehave at home, and ( sic ) frequently do so for a number of reasons, is that fair?

A. Yes.

Q. One of the reasons a child may misbehave with a particular parent is because the parent’s a pushover, has no discipline or won’t follow through with discipline, won’t demand anything of them. Is that fair?

A. Yes.

Q. Many of the cases you deal with, where the difficulty is parenting competency, relate to structure, routine and the impact on the kids and their relationship with the adult as a result. Fair?

A. Yes.

Q. At any point, did your investigation look beyond what the mother was telling you or what you suspected the children were telling you?

Etc.

36A fair reading of this nine pages of the transcript would lead an impartial observer to conclude that the questions were intended to suggest to the witness that the CAS had misread the situation; and that in focussing on the risk posed by the father’s harassing and controlling behaviour, they had missed the real problem which lay in the mother’s long-standing difficulty with managing her own life and the lives of the children.

37There is no question that a trial judge has the right to question witnesses, for the purpose of clarifying the evidence. However, it is not an unbridled right. The Ontario Court of Appeal, in Majcenic v. Natale , 1967 267 (ON CA) , [1968] 1 O.R. 189 (C.A.), defined the parameters of permissible judicial questioning in the following terms:

When a judge intervenes in the examination or cross-examination of witnesses, to such an extent that he projects himself into the arena, he of necessity adopts a position which is inimical to the interests of one or other of the litigants. His action, whether conscious or unconscious, no matter how well intentioned or motivated, creates an atmosphere which violates the principle that “justice not only be done, but appear to be done”. Intervention amounting to interference in the conduct of a trial destroys the image of judicial impartiality and deprives the Court of jurisdiction. The right to intervene is one of degree and there cannot be a precise line of demarcation but if it can be fairly said that it amounted to the usurpation of the function of counsel it is not permissible.

38I am satisfied that the trial judge did project himself into the arena, however well intentioned he undoubtedly was. The clear objective of the series of questions posed to Dana Lawrence, many of which amounted to cross-examination, was to undermine her evidence, and the theory upon which the CAS approached the case. The position which the trial judge thereby adopted was clearly inimical to the interests of the mother, since Ms. Lawrence was a key witness in her case. In so doing, the trial judge usurped the function of counsel for the father, since this is a line of questioning that properly could have been pursued by him, but was not.

39This intervention escalates in significance when one reads the reasons given for the trial judge’s decision. In his reasons, he rejected the evidence of Dana Lawrence. He concluded that the father’s controlling behaviour was not the cause of the stress and dysfunction that was observed in the mother’s household, but rather it could be traced to her underlying emotional and psychological problems dating back years before the separation. In so doing, the trial judge effectively adopted the very theory of the case that he had championed in his questioning of this witness.

40The effect of all of this was to destroy the image of impartiality that the court must maintain, which results in a loss of jurisdiction.

41Furthermore, at the conclusion of the trial judge’s questions Mr. Skuce rose to pose questions arising out of the trial judge’s questions. He was met with the following response, at pg. 407 of the transcript:

I’m not going to permit a single question out of those. Those are questions that I would have expected off the top from both counsel and I needed this. If I am to write a decision here, I needed this information. I didn’t get it from counsel, so I got it on my own, but I’m not going to permit anymore questions to be asked. Next witness.

42Neither party cited any authority regarding the duty of a trial judge to permit questions to be asked by counsel arising out of questions posed by the court, but that is probably because the proposition is self-evident. It is counsel’s role and right to elicit evidence from the witnesses, and if further lines of enquiry become apparent as a result of questions posed by the court, counsel should be afforded an opportunity to pursue them. That is all the more important in a case such as this, where the trial judge embarked upon an area of questioning that was not previously canvassed by counsel. Procedural fairness demands that both counsel be given a reasonable opportunity to make enquiries of their own in the new area opened up by the trial judge. In denying counsel for the mother his right to further question this witness, there was a denial of procedural fairness, which also deprives the court of jurisdiction.

43Mr. Riddell relies on two cases which, although not precisely on point, he suggests are analogous. They are Leader Media Productions Ltd. v. Sentinel Hill Alliance , 2008 ONCA 463 , and FL Receivables Trust 2002-A v. Cobrand Foods Ltd. , 2007 ONCA 425 . Both involved situations where counsel for the appellant had been denied the opportunity to make further submissions. The Court of Appeal held in both cases that, among other things, it was incumbent on the appellant to outline what new arguments could have been made, and thereby demonstrate that the result may have been different had further submissions been allowed.

44In my view, there is a world of difference between argument and evidence. Submissions are entirely within the control of counsel, and counsel is in a position to fully outline to an appellate court the arguments that could have been presented to the court below had they been permitted to do so, and thereby attempt to persuade the appellate court that the result would have been different. However, questioning a witness is a dynamic process, where counsel has no control over what the witness will say. An appellant is simply unable to demonstrate to an appellate court what testimony a witness may have been able to offer had further questioning been permitted. As a result, I find those two authorities to be inapplicable.

45In view of my conclusions on issues #1 and #2, it is not necessary to consider the third and fourth issues. In any event, both of those issues largely involve an attack on the manner in which the trial judge weighed and considered the evidence, which would have attracted a high degree of deference from this court.

46For the above reasons, the appeal is allowed and the judgment of April 4, 2012 is quashed. While it may be open to me to simply dismiss the case based on the finding that no material change in circumstances had been proven, I am disinclined to do so. Once the court below lost jurisdiction, the trial was aborted. In the result, the parties had an incomplete trial, and justice requires that a new trial be ordered.

47While I am not in a position to make an order to this effect, it seems to me that an updated report from the Office of the Children’s Lawyer will be essential when the matter returns to trial. Much has happened since the report was signed in May of 2011 that is highly relevant to the issue as to whether there has been a material change in circumstances that affects or is likely to affect the best interests of the children.

48Since the order that varies the order of February 6, 2009 has now been quashed, that original order once again becomes operative. That is to say, both parties once again have joint custody, and the father will have the children with him on the days when he is not working, while the mother will have the children with her at all other times. Child support payments by the father shall resume. The status quo ante shall be restored by the parties forthwith.

49If counsel cannot agree on costs, I will accept written submissions from Mr. Skuce within 15 days, with responding submissions from Mr. Riddell within 10 days thereafter and any reply within 5 days thereafter.