COURT FILE NO.: FS-12-4675-00
DATE: 2013-06-18
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: ANOTHONY PHILLIP VUCENOVIC and JESSICA LILIAN RIESCHI
BEFORE: Justice D.L. Edwards
COUNSEL: Jennifer Watson, for the Applicant Robert McQueen, for the Respondent
HEARD: June 10, 2013
E N D O R S E M E N T
[1] This is an appeal by Jessica Rieschi, the mother, from the Order of Justice Pawagi dated October 22, 2012 in which she granted Anthony Vucenovic, the father, sole custody of their child, Emilee. She further ordered that the mother have no access, pending further order of the court.
[2] The mother submits that Justice Pawagi made errors at law and misapprehended and misconstrued the evidence.
[3] Prior to the hearing of the appeal, I heard a motion of the father to admit fresh evidence. The mother also wished to introduce fresh evidence. After hearing from all the parties, I agreed to accept the evidence as it related to the issues under the appeal and to consider the credibility of the documents in assessing their weight.
[4] The standard of review on an appeal is clear. This court may intervene only if the trial judge erred in law; made a material error in the appreciation of the facts or did not consider relevant factors or evidence. Substantial deference should be given to the decisions of the trial judge in matters of custody and access. Van de Perre v. Edwards, 2001 Carswell BC 1999 (S.C.C.).
[5] I am satisfied that the judge did not make a reviewable error. I dismiss the appeal for the following reasons.
[6] Turning first to the legal test for determination of custody and access, it is clear that the trial judge viewed all of the evidence through the prism of what was in the best interest of the child.
[7] In paragraphs 45 through 61, the trial judge analyzes the factors set out in s. 24(2) of the Children's Law Reform Act, 2006. She applies the factors to the evidence before her. Her decisions are ones which she could reasonably make, based upon the evidence before her.
[8] She considers the maximum contact principle in relation to the overriding principle, namely the best interest of the child. She concludes that, in the best interest of the child, the mother should have no access to the child, until the mother obtains counselling.
[9] There is evidence before the trial judge to permit her to reasonably come to the conclusion that contact between Emilee and her mother is unhealthy for Emilee. The trial judge found that Emilee had developed an anxious attachment to her mother. That means that she sublimates her interests and needs to that of her mother. The result is that she has developed poor coping mechanisms, which if continued into later life could cause her significant problems.
[10] The judge weighs the parent’s right to access versus the harm that the access would cause to the child. Based upon the evidence before her, the trial judge’s conclusion that the harm to the child outweighs the right of the parent for access was a reasonable finding.
[11] The trial judge orders that there would be no access by the mother “pending further order of this court”. In paragraph 64 the judge notes: “Ms. Rieschi would first have to demonstrate through individual treatment that she has changed".
[12] Contrary to the position put forth by the mother, the trial judge has provided an avenue by which the mother may pursue access to the child; she must first undergo personal counselling and then seek court approval.
[13] I next turn to the allegations that the judge misapprehended the facts or failed to appreciate certain facts, or failed to give sufficient weight to certain facts.
[14] The mother alleges that the trial judge cites the incident on July 25, 2012 at the police station when, at the suggestion of the police, the mother took the child home, as evidence that the mother had not improved in her parenting skills. A fair reading of paragraph 65 of the decision does not result in that interpretation. The trial judge expresses a concern throughout her decision, including at paragraphs 15, 16, 17, 20, and 23, that Emilee’s anxious attachment with her mother has made exchanges difficult, if not impossible. The trial judge also notes in her decision at paragraph 23 that the mother’s involvement in Emilee’s life was actually harmful to her.
[15] Further, the mother submits that the trial judge made a material error of fact in paragraph 64 of her decision when she states that “… It would not even be enough to have supervised visits with counseling as that was already tried and proved an insufficient safeguard". In fact, the arrangements had progressed from supervised access to a 60/40 custody arrangement.
[16] I am satisfied that the trial judge was fully aware of the custody arrangements ordered on May 6, 2011, which provided for access to the mother being supervised at first, and gradually increasing to a 60/40 shared arrangement. Indeed, she refers to that Order at paragraph 2 of her decision. However, she was also aware of evidence that shows that Emilee's anxious attachment issue with her mother had not improved during this time frame, and this made exchanges of Emilee between parents problematic.
[17] The mother asserts that the trial judge made an error in concluding that the mother had made no gains through counselling. Although there is evidence on the record which could support the conclusion that the mother had made gains through counselling, there is also evidence to which the trial judge specifically referred at paragraph 56 of her reasons that support her conclusion that the mother’s actions demonstrate that she had not actually made any real gains as a result of her counselling.
[18] The mother further submits that the trial judge erred by not taking into consideration Emilee's ties with her mother and maternal side of her family. A significant portion of the trial was involved with this issue and the trial judge addresses this issue at paragraphs 52 and 53 of her decision.
[19] The mother argues that the trial judge erred by not giving sufficient reasons as to why she rejected the Office of the Children’s Lawyer’s (“OCL”) report and the Thistletown report. It is trite law to say that expert reports are only one aspect of the evidence, and that ultimately the court must make a final decision. The court must, however, explain why it accepts or rejects significant evidence, such as the OCL report and the Thistletown report.
[20] In her decision, she reviews these reports in detail, and accepts certain factual information provided therein. Then, utilizing all of the evidence before her, she reaches her own conclusion as to what was in the best interest of the child. I note that the Thistletown report contains a caution that if the access proves to be not workable, then a change in custody may be required.
[21] The trial judge found that, due to the anxious attachment that Emilee had with her mother, access with her mother would be problematic. This is a reasonable finding based upon the evidence. It is clear from her reasons that this was a significant factor in reaching the decision to award custody to the father, with no access to the mother until she undertook counselling.
[22] The mother submits that the trial judge failed to consider Emilee's views and preferences. In paragraph 48 of the decision, the trial judge concludes that Emilee's independent views and preferences could not be ascertained as there was a disconnect between what she said about her relationship with her father versus how she behaved with him, as was observed by both the Children's Lawyer investigator and the Thistletown assessors. Based upon the record, this is a reasonable decision.
[23] The mother submits that the trial judge failed to consider s. 24(4) of the Children's Law Reform Act, as, in her view, the incident in the car in July 2012 constituted abuse of child. The record does not support that conclusion. As well, the police investigated the matter and did not proceed further with it. There was no error by failing to consider this section of the act.
[24] The mother asserts that an order that one of the parents have no access to the child was not pleaded, and that the trial judge can only make an order which falls within the pleadings. In Titova v. Titov, 2012 CarswellOnt 15666 (Ont. C.A.), the Ontario Court of Appeal held that Rule 2 of the Family Law Rules grants a trial judge great latitude to adjudicate family law cases. In paragraph 48, the court states that, particularly when the parties are self-represented, there may be circumstances in which unrequested orders may be made. The caveat expressed by the court is that an order should not be made in the absence of evidence and submissions on the relevant issue.
[25] The broad issue here considered by the court in our matter was what was in the best interest of Emilee. Further, as the central issue in this trial dealt with the custody and access of Emilee, the parties called evidence on these very issues. There was no prejudice to the parties. The parties were self-represented. The judge had the authority to make the unrequested no access order.
[26] The mother further submits that s. 28(1) of the Children's Law Reform Act does not grant to an Ontario Court of Justice judge the authority to make an order for no access. She submits that there is a gap in the legislation. Further, she asserts that for a judge of the Ontario Court of Justice to make such an order the court would have to be exercising parens patriae authority. The mother submits that the Children's Law Reform Act codifies the entire area and the Ontario Court of Justice no longer has parens patriae authority.
[27] I am satisfied on a plain reading of the section that the Ontario Court of Justice has the authority to make an order for no access under those provisions. I need not consider the issue of parens patriae.
[28] I note that the fresh evidence introduced with respect to the current status of Emilee reveals a child who is excelling at school and who has attended a positive counselling program.
[29] In conclusion, for the reasons set forth above the appeal is dismissed.
[30] The parties may provide cost submissions not to exceed three pages (not including any offers to settle or bill of costs). Counsel for the father shall provide her submission within 15 days. Counsel for the mother shall provide his submissions within 15 days thereafter.
Justice D.L. Edwards
DATE: June 18, 2013
COURT FILE NO.: FS-12-4675-00
DATE: 2013-06-18
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: ANTHONY PHILLIP VUCENOVIC and JESSICA LILIAN RIESCHI
BEFORE: Justice D.L. Edwards
COUNSEL: Jennifer Watson, for the Applicant Robert McQueen, for the Respondent
ENDORSEMENT
Justice D.L. Edwards
DATE: June 18, 2013