ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: FS12-60
DATE: 20130116
BETWEEN:
AMANDA KATHLEEN MACKIE
Respondent
– and –
DOUGLAS ANDREW DRYS
Appellant
Andrew Thomson, Counsel for the Respondent
Michael Anne MacDonald, Counsel for the Appellant
HEARD: January 9, 2013
REASONS FOR DECISION
ELLIES, J.
OVERVIEW
[1] In this appeal under section 73 of the Children’s Law Reform Act (“CLRA”), the appellant father challenges the order of the motion judge made on September 5, 2012 in which he awarded custody of the parties’ eight-year-old child to the respondent mother, who had recently moved with the child from the matrimonial home in Kingston to Parry Sound. The appellant argues that the motion judge committed reversible error by concluding that the appellant consented to or acquiesced in removing the child from Kingston and by failing to deal with the issue of mobility. The appellant required leave to extend the time to appeal, which was unopposed and which I granted. He also seeks to file fresh evidence.
[2] In my view, the fresh evidence ought not to be admitted, as it fails to meet the test for submission set out in R. v. Palmer (1990), 1 S.C.R. 559 (S.C.C.). Even if that evidence had been admitted, I would dismiss the appeal. In my opinion, the trial judge did not fail to consider the mobility issue, nor did he base his decision on any impermissible finding of credibility or misapprehension of the evidence.
[3] Alternatively, I would dismiss the appeal because, in my opinion, the order sought by the appellant that he be granted custody and the child returned to Kingston would not be in the child’s best interest.
Background
[4] According to the appellant (to whom I shall refer in these reasons as “the father”), the parties met in Parry Sound in 1998 and began dating. The parties were married on April 25, 2009. Lincoln Peter Drys was born on April 29, 2004. He lived with his parents in Kingston until 2012.
[5] The parties separated on more than one occasion. In April 2012, the respondent (“the mother”) left with Lincoln for Parry Sound, where her father and step-mother, as well as other family members, reside. She returned to Kingston as part of an effort to reconcile. However, she left the matrimonial home for good on or about June 18, 2012 and returned to Parry Sound with Lincoln.
[6] The mother commenced an application for divorce on June 22, 2012, although, as I will mention again below, it was not served on the father until August 8. For some reason, that application ended up in the Ontario Court of Justice, where it was addressed for the first time on August 13, 2012. The matter was adjourned on that date to September 5, the date of the order from which this appeal is taken.
[7] By September 5, the mother had filed two affidavits. The first was sworn on August 24, 2012 and was filed in connection with the relief requested in the original application, including custody of Lincoln. The father filed an affidavit sworn on August 28 in reply, and the mother served an affidavit sworn on September 4, which was filed on the day of the hearing. It is in connection with that affidavit that the father seeks to introduce fresh evidence.
[8] Each party had a motion for sole custody before the court on September 5. In addition, the father’s motion requested that the matter be transferred to the jurisdiction where the child ordinarily resides, but that the court determine who should be the custodial or primary parent beforehand.
[9] At the outset of the hearing, the motion judge dealt with the issue of jurisdiction. Counsel for the father advised the court that his client was prepared to accept that the court had jurisdiction to deal with the matter, despite the fact that the child ordinarily resided in Kingston, which the court proceeded to do.
[10] Counsel for the father argued that this was really a mobility case and referred the court to the Supreme Court of Canada decision in Gordon v. Goertz, 1996 191 (SCC), [1996] 2 S.C.R. 27 for the applicable principles. He argued that the child should be returned to Kingston, referring the court to evidence contained in the father’s affidavit about his involvement with the child, the stability that the Kingston area represented for the child, and the services that were already in place for him there.
[11] The motion judge disagreed with the submission that this was a mobility case, or at least a “typical mobility case”, and ruled that the mother should have sole temporary custody of the child in Parry Sound.
[12] In the course of delivering his reasons orally, the motion judge stated that it was clear to him that the father had agreed to or acquiesced in the move. The father now seeks to file fresh evidence in the form of a number of attachments appended to an affidavit sworn on September 19, 2012 to refute that conclusion, amongst others.
Issues
[13] Counsel for the father argues that, in concluding that the father agreed to or acquiesced in the move, the motion judge misapprehended the evidence or made a finding of credibility adverse to the father, which was not open for him to do on the untested affidavit evidence.
[14] She also argues that the motion judge erred in not treating this as a mobility case. She submits that there were two main issues before the motion judge, namely:
(1) where the child should reside; and
(2) with whom.
She submits that the motion judge failed to deal with the first issue, thereby committing an error in law.
[15] With respect to the application to file fresh evidence, counsel for the father argues that her client was unable to respond to the mother’s affidavit of September 4, which was served just before the hearing commenced. I will deal with this issue first in the analysis that follows.
Analysis
Fresh Evidence
[16] To be admissible on an appeal, fresh evidence must meet a four-part test namely:
(a) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial;
(b) The evidence must be relevant in the sense that it bares upon a decisive or potentially decisive issue in the trial;
(c) The evidence must be credible in the sense that it is reasonably capable of belief; and
(d) It must be such that, if believed, it could reasonably be expected to have affected the result, when taken with the other evidence adduced at trial.
(: R v. Palmer, [1990] 1 S. C. R. 759; Visagie v. TVX Gold Inc (2000), 2000 5749 (ON CA), 49 O.R. (3d) 198 (Ont. C.A.), at paragraph 53).
[17] In this case, of course, we are not dealing with a trial, but the principles are the same.
[18] In my view, the proposed fresh evidence fails to meet three of the four requirements set out above. All of the evidence could have been adduced during the hearing of the motion by the exercise of due diligence. Further, some of the evidence is not relevant to the issues it proposes to address and, in any event, none of it could be expected to have affected the result.
[19] The father sets out in his affidavit of September 19 that the fresh evidence is relevant as follows:
(a) To refute the allegation that he was aware of the mother’s plan to move to Parry Sound;
(b) To refute the allegation that he consented to or acquiesced in the move (i.e. to support his statement that they were communicating regarding reconciliation);
(c) To refute evidence that the mother was only involved in one webcam show;
(d) To refute the allegation that only four people live in the mother’s parents home;
(e) To refute the mother’s allegation that she will be seeking increased hours at work;
(f) To refute the allegation that the mother does not suffer from depression; and
(g) To refute the allegation that Lincoln will be cared for by his maternal grandparents.
[20] All of the evidence that the father now seeks to introduce existed before he swore his affidavit of August 28. If it is relevant now to the issue of child’s best interests, it was relevant then. In my view, therefore, it ought to have been introduced at that time.
[21] This was a motion governed by Rule 14 of the Family Law Rules. Subrule 14(20) provides:
The following restrictions apply to evidence for use on a motion, unless the court orders otherwise:
The party making the motion shall serve all the evidence in support of the motion with the notice of motion.
The party responding to the motion shall then serve all the evidence in response.
The party making the motion may then serve evidence replying to any new matters raised by the evidence served by the party responding to the motion.
No other evidence may be used. (Emphasis added.)
[22] By virtue of paragraph 3 of this subrule, the father was required to serve all the evidence he had in response to the mother’s August 24 affidavit. Instead, he served only some of it, took a chance, lost and now seeks to serve the rest. To allow him to file further evidence now that was available to him then is to permit him to split his case.
[23] Counsel for the father argues that the fresh evidence is necessary to reply to evidence introduced for the first time by the mother in her affidavit of September 4. That is not so with respect to most of the proposed fresh evidence, in my view. In particular:
(a) The mother swore in paragraph 10 of her August 24 affidavit that she told the father on or about June 17, 2012 that she would be moving back to Parry Sound for good with Lincoln and that the father made no objection. If the texts attached as Exhibits A and B to the father’s September 19 affidavit are relevant to this issue, and I have difficulty seeing how they are, then they should have been appended to the father’s August 28 affidavit.
(b) The mother repeated her allegation that the father knew that she and Lincoln were moving to Parry Sound and went further to allege that the father acquiesced in that move in paragraph 14 of her August 24 affidavit. Therefore, if the text messages appended as Exhibit C, D, E and F to the father’s September 19 affidavit are relevant to explain why the father did nothing about the move, they should have been appended to his August 28 affidavit.
(c) It was the father who first raised the mother’s participation in a webcam show on the internet, in paragraphs 9 and 10 of this August 28 affidavit. He did not append the printouts attached as Exhibit I, J and K to his September 19 affidavit, even though he admitted in paragraph 9 of his earlier affidavit that the documents were available.
(d) Likewise, it was the father who first made the allegation that there were eight people living in the mother’s parents’ home, in paragraph 25 of his August 28 affidavit. If relevant, therefore, the texts appended as Exhibit L to his September 19 affidavit should have been attached to his earlier one.
(e) The father also alleged in paragraph 31 of his August 28 affidavit that “from day to day (the) mother is uncertain of who will be caring for (Lincoln)”. If Exhibits P and Q demonstrate this, as alleged, then they should have been appended to his earlier affidavit.
(f) Lastly, at paragraph 8 of the father’s September 19 affidavit, he admits that he already disputed in his August 28 affidavit the mother’s August 24 statement that she never suffered from depression. Once again, if the text message attached as Exhibit M dated July 7, 2012 is relevant, it ought to have been attached to the father’s earlier affidavit.
[24] In my opinion, the remaining exhibits attached to the father’s September 19 affidavit fail to satisfy the second and fourth parts of the Palmer test. The father attaches as Exhibits N and O to his September affidavit printouts of some texts dated July 7 and 30, 2012. He says that these texts suggest that the mother is struggling financially and planning to go on assistance. He seeks to introduce this fresh evidence in answer to the mother’s evidence of September 4 that she works part-time and will be seeking increased hours once Lincoln settles into his new school. I fail to see how evidence that the mother is struggling financially undermines her allegation that she will be seeking increased hours. The two seem completely consistent. Nor does the evidence contradict the mother’s evidence that she is working part-time. In fact, it confirms it when the mother replies affirmatively to the father’s assertion that she will have “to go on assistance being part time (sic)”. I also fail to see how the fact that the mother is struggling financially or the possibility that she might seek public assistance in any way assists the father with respect to the issue of custody. If anything, being on public assistance will provide the mother with more free time to spend with the child.
[25] For these reasons, I would not admit the proposed fresh evidence.
[26] In any event, even if the fresh evidence was admitted, it would not have affected the result in this case, in my view. As I will explain, it is my opinion that the motion judge based his decision on the father’s failure to act in the child’s best interests and on the disruption that the child would suffer if it was ordered that he be returned to Kingston.
Standard of Review
[27] Before I turn to the other issues raised in this appeal, I will address the applicable standard of review.
[28] The father’s complaint regarding the motion judge’s finding of agreement or acquiescence raises a question of fact. A trial judge’s finding of fact is entitled to deference by an appellate court and will not be overturned absent a palpable and overriding error (: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235). That standard is based on the advantage a trial judge enjoys over an appellant court in seeing and hearing the witnesses testify.
[29] This case involves a motion, however, in which no witnesses were called to give evidence. The motion judge had only the untested affidavits of the parties before him. Nonetheless, his findings are still entitled to deference. This was the ruling in Equity Waste Management of Canada v. Halton Hills (Town) (1997), 35 O.R. (3d) 325 (Ont. C.A.), where Laskin, J.A. on behalf of the court wrote (at paragraph 46):
An appellate court may interfere with a finding of fact if the trial judge or motion judge disregarded, misapprehended or failed to appreciate relevant evidence, made a finding not reasonably supported by the evidence, or drew an unreasonable inference from the evidence.
[30] The father’s second ground of appeal, namely that the motion judge erred by failing to treat this as a mobility case, involves a case of law, the standard of review for which is correctness (Equity Waste Management, supra, at paragraph 46).
[31] Even where the application of these standards of review will permit this court to interfere with the motion judge’s ruling, the parties agree that the child’s best interests are still paramount and may result in the earlier order remaining intact.
The Judge’s Finding of Consent or Acquiescence
[32] Early in his Reasons, the motion judge held (at page 35 of the transcript) regarding the mother’s move to Parry Sound:
From the respondent’s actions, it is clear to me at least, that he agreed to this or at least acquiescence (sic) to it. There were a lot of things that he could have done to prevent this for example, go to court in Kingston to bring an ex parte application to have the child returned, or he could have started a regular application himself in Kingston, none of this was done. In fact, it was the mom who started a court application and somehow this matter showed up on the family court docket on August 13 in Parry Sound...
[33] Counsel for the father argues that the motion judge misapprehended the evidence found in paragraphs 14 and 15 of the mother’s August 25 affidavit in arriving at this conclusion. Alternatively, she argues that the motion judge made a credibility finding against the father, which cannot be made on untested affidavit evidence alone.
[34] I have already referred to paragraph 14, in which the mother deposed:
The Respondent had known that we were going back to Parry Sound and even left the house on the morning of June 18 so that my father and I could pack some things without him being there. By his statements and his actions it was clear that Mr. Drys expected me to leave the home, he knew where we were going as we had come to Parry Sound previously and he knew I had nowhere else to stay. He acquiesced to (sic) our coming to Parry Sound and agreed to the move at the time. There was no discussion in the circumstances about the Respondent’s access to our son.
[35] Paragraph 15 reads as follows:
On June 22, 2012 I filed for custody and support. The Respondent had been contacting me through email text messaging. He was begging me to try and reconcile once again. I explained to him that Lincoln and I were a lot happier being in Parry Sound. Lincoln did not even mention his father while here. Lincoln was a happier, livelier eight year old boy. The Respondent became angry and threatening again. He claimed that he was going to file kidnapping charges. I told the Respondent that I would not keep him from visiting or speaking with his son.
[36] I am unable to accept the father’s submissions regarding the motion judge’s finding. In my view, there was ample evidence to support the finding that the father consented or acquiesced with respect to the move without having to make any finding of credibility adverse to the father. The father’s evidence alone supports the motion judge’s finding.
[37] The father never specifically denied the mother’s allegations. Rather, he set out in paragraphs 12 to 15 of his August 28 affidavit, under the heading “Fleeing the Home”, the events that occurred between June 18, when the mother left the matrimonial home for good, and August 13 when the parties first attended court, which events did not include the father commencing any legal proceedings.
[38] The father’s legal inactivity cannot be explained by a suggestion that he believed he could not take any steps because the mother had already commenced legal proceedings; an allegation which, I would point out, was never made in any affidavit sworn by the father. According to paragraph 15 of the father’s August 28 affidavit, he was not served with the mother’s application until August 8. Between June 18 and August 8, the father took no legal steps to obtain custody or to have the child returned to Kingston. He alleges that the mother refused to allow him to speak to his son throughout the month of July. Yet the father took no steps to even secure access.
[39] Nor can the father’s inactivity be explained by efforts to reconcile. No evidence has been introduced to support the assertion that the parties were attempting to reconcile between June 18 and the beginning of July. All of the texts appended as Exhibits C, D, E, and F and proposed as fresh evidence are dated after July 2. The father deposed in paragraph 13 of his affidavit of August 28 that he told the mother on July 2 that he was not going to try to reconcile with her and learned at the beginning of August that she had made a false police report against him. Still, no legal action was taken by the father to secure either custody or access.
[40] The father’s failure to take any steps with respect to the child’s residence, custody or access cannot be wholly attributed to ongoing settlement discussions, either. The father deposed that, from the last two weeks of July to the start of August, he and the mother were attempting to reach “agreement on the separation matter”. No explanation was offered by the father as to why he took no legal action from mid-June until mid-July, when the parties began these discussions.
[41] In my view, the evidence I have referred to above amply supported the motion judge’s conclusion that the father had acquiesced in the move and did not require the motion judge to choose the mother’s evidence over that of the father.
[42] Therefore, I would not give effect to this ground of appeal.
The Mobility Issue
[43] In my view, the motion judge was also correct when he held that this was not a typical mobility case. The main issue in a typical mobility case is not who should have custody, but where. In these cases, the move has not yet taken place. Often, the question of who should have custody turns on where the child should reside (: see, for example, Vanderhyden v. Vanderhyden, [2002] O.J. No 3769 (Ont. S.C.), where the court ruled that the father would be the primary interim caregiver if the mother decided to leave the place where the child had ordinarily resided). This case was different; the move had already occurred.
[44] In a typical mobility case, the court only needs to concern itself with the effect on the child of one change in family, schools and community, the potential change being contemplated by the court (: Gordon v. Goertz, 1996 191 (SCC), [1996] 2 S.C.R. 27, at paragraph 49). In this case the motion judge had to be concerned about the additional disruption to the child involved in a return to Kingston from Parry Sound.
[45] The motion judge did not deal with the issues of who and where as discrete issues. Nor did he expressly mention the factors in Gordon v. Goertz, which are applicable even in a case where no previous custody order has been made (: Vanderhyden, supra, at paragraph 18). It would have been preferable had he done so. In fairness to the judge, however, it must be born in mind that this was a motion, not a trial.
[46] From reading the reasons as whole, it is my view that he considered the appropriate factors. After recognizing that the child ordinarily resided in Kingston, that both parents had been involved as caregivers, and discussing the plans of care proposed by each, the motion judge held (at page 37 of the transcript):
The child is now registered in school in Parry Sound, and to my knowledge is now in the second day of school. Mom had seen to the registration, seen to his needs being met, for example, he is going, as I believe, (sic) a hearing test today, obviously Mom took care of that and saw some issues to be looked into.
What Lincoln needs is some stability and not only school stability, but a parent that will be there, that has been there, and Dad says he’s highly involved, but does not seem to indicate so in his actions, the words are there, but the actions aren’t really there.
It’s clear that we need to determine, and it’s always in the child’s best interests to have as much contact with both parents as possible, but in this case it is not really possible due to geography, so we need to look at what’s in the best interests of the child in determining who will be the primary caregiver and it’s in my view that the primary caregiver should be the Mom and that the child should be residing with the Mom and that he should attend school in Parry Sound as he has already started.
[47] These factors: the child’s present circumstances, the desirability of maximizing contact with both parents, disruption to the child that would result in a change of custody, and disruption to the child resulting from a change in community are all factors referred to in Gordon v. Goertz, (at paragraph 49). It is clear from the motion judge’s reasons that it was his view that the child should not be further disrupted.
[48] It is also clear from the judge’s reasons that he felt that the mother should have custody of the child, based on evidence that the father had not acted in the child’s best interests in the past, as I will now discuss.
[49] Earlier in his ruling (at page 36 of the transcript), the judge held:
I’m concerned about the C.A.S. report dated May 26th, 2012, and that date is important to me because it comes in between the two dates of the separation. Yes, dad did not need to participate with the C.A.S., but they were trying and they made it clear that they weren’t concerned about the act of any harm being done to Lincoln at that time, but they were trying to figure out a plan to help him in the transition, involving the school principal for example, and dad wanted absolutely nothing to do with it, which I think it’s (sic) contrary to the best interests of the child at that point in time….
[50] The motion judge was referring to a copy of a document entitled “Service Plan Review”, which was attached as an exhibit to the mother’s September 4 affidavit, in which she deposed with reference to it:
After Doug made further unfounded allegations about my step-mother and other concerns to the C.A.S. in Parry Sound, I met with Harriet Taylor, a worker with the C.A.S., who investigated and found no protection issues. I informed her of my involvement with Family & Children’s Services in Kingston. Harriet obtained, and I attach as Exhibit “A” to my Affidavit, a copy of the Service Plan Review document prepared on May 28, 2012. Mr. Drys fails to mention this perhaps because he showed no interest and refused to participate or cooperate. Note the comments: “Unfortunately, Doug did not participate in our efforts and preferred not to be involved”… (Emphasis added.)
[51] In his factum, the father submits that the notes were unreliable hearsay and ought not to have been relied upon by the motion judge without an affidavit of the maker of the notes or without the testimony of the case worker to support the claims made in them. However, no objection was made to that evidence during the motion. In fact, there was a lengthy colloquy between the judge and counsel for the father (who was not counsel on the appeal) concerning this evidence, during which counsel for the father made submissions explaining why the father did not participate, not all (or any) of which appear(s) to be based on affidavit evidence. No objection was made by counsel for the mother to these submissions. Therefore, although I agree that the motion judge ought to have approached this evidence with more caution because of its hearsay weakness, I would not give effect to this complaint raised for the first time on appeal.
[52] This evidence, however, is of concern to this court for another reason. Subrule 14(20), to which I made reference earlier, required the mother to put “all” the evidence in support of her motion in her affidavit of August 24. In paragraph 8 of that affidavit, she referred to the involvement of the Kingston C.A.S. She also made reference, in paragraph 17, to the allegation the father made on August 13 to the Parry Sound C.A.S. It is through the Parry Sound C.A.S. that the mother alleges that she received the Service Plan Review document. Therefore, she had the document prior to August 24, but she never attached it to her earlier affidavit. Furthermore, I can find nothing in the father’s August 28 affidavit that would justify her attaching it to her September 4 affidavit. By the mother’s own admission, which I have italicized in the excerpt found at paragraph 50, above, the father did not raise this issue in his August 28 affidavit.
[53] Like so much of the fresh evidence sought to be admitted on the appeal by the father, therefore, the evidence about the C.A.S. record ought to have been included in the mother’s earlier affidavit, pursuant to subrule 14(20). However, as no ground of appeal was advanced or argued on the issue, no fresh evidence was proposed to address it, and no objection was made during the motion to that evidence on any basis, I would not interfere with the motion judge’s ruling on this ground.
The Child’s Best Interests
[54] Lincoln has now lived in Parry Sound for more than six months. He has attended the same school over that period of time. He has, presumably, made friends there. He has had constant contact with members of his mother’s family over that period of time and, it is also reasonable to infer, formed stronger bonds with them.
[55] In my view, even if the motion judge had made an error that allowed this court to interfere with his order, I would not disturb it. Children need stability, especially in a time of crisis, such as during the separation of their parents. It would be detrimental to Lincoln, in my view, to uproot him again pending the trial in this matter, which could possibly result in further disruption.
Conclusion
[56] For the foregoing reasons, the appeal is dismissed.
Costs
[57] If the parties are unable to reach agreement with respect to the issue of costs, they may make written submissions of no more than five pages in length, excluding authorities and attachments, as follows:
(a) The respondent shall have 20 days from the date of the release of these reasons to serve and file her submissions;
(b) The appellant shall have 10 days following receipt of appellant’s submissions within which to do likewise; and
(c) The respondent shall have 10 days thereafter in which to file any brief reply that may be necessary.
Ellies, J.
Released: 20130116
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
AMANDA KATHLEEN MACKIE
- and -
DOUGLAS ANDREW DRYS
REASONS FOR decision
Ellies, J.
Released: 20130116