ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Chelsea Marcelle Weare
Ms. A. Stilla, for the Appellant
Appellant
- and -
Nathan Eugene Naumann
Mr. M. Van Walleghem, for the Respondent
Respondent
HEARD: June 26, 2015
at Kenora, Ontario
Mr. Justice J.S. Fregeau
Reasons on Appeal
Introduction
1The appellant appeals the decisions of the Honourable Justice P. Bishop (the “trial judge”) of the Ontario Court of Justice dated February 3, 2014, amended pursuant to oral reasons given February 24, 2014 with supplemental written reasons released March 10, 2014.
2These decisions followed the hearing of the respondent’s Motion to Change and the appellant’s Response to Motion to Change. Each of the parties was seeking a variation of previous consent orders and each sought sole custody of their two children.
3In the February 3, 2014 decision, the trial judge granted sole custody of the two children to the respondent with specified access to the appellant. The appellant was also ordered to pay child support to the respondent.
4In the February 24 and March 10, 2014 decisions, the trial judge ordered costs against the appellant in the total amount of $6,942.14.
Background
5The appellant and respondent began to reside together in February 2005. They separated in August 2009. The parties are the parents of two children, Reina Christianna Naumann, born May 1, 2006 and Patience Marie Naumann, born September 28, 2008.
6Following separation, the appellant and respondent consented to two orders addressing custody and access of their children and child support. In the first order, dated December 4, 2009, the appellant and respondent agreed that they would share joint custody of the children who would reside in the primary care of the appellant in Dryden, Ontario. The respondent, who resides in Ignace, Ontario, was to have specified access. The respondent was ordered to pay child support to the appellant. The October 1, 2010 order essentially “tweaked” the access and child support provisions of the previous order.
7From the date of separation in August 2009 until February 2014, the children were in the primary care of the appellant and living in Dryden. In August 2012, the appellant decided to move to Kenora, Ontario with the children. The appellant advised the respondent of her intentions approximately three weeks prior to moving.
8The respondent opposed the change in the children’s primary residence. He brought a motion requesting the court find the appellant in contempt of the December 4, 2009 order for changing the children’s primary residence from Dryden to Kenora. The appellant’s move to Kenora also prompted the respondent’s Motion to Change in which he sought a variation of the previous orders and an award of sole custody in his favour with the children residing with him and his current partner in Ignace.
9The mother consented to a temporary order dated September 24, 2012 wherein she agreed to return the children to reside in Dryden by September 28, 2012.
10The appellant initiated her Response to Motion to Change on October 3, 2012. The appellant, in her Response at paragraph 20(2) requests that the previous orders be changed such that the parties would continue to have joint custody of the children with the children in her primary care in Kenora rather than Dryden.
The Trial Decision
11The trial judge heard evidence on December 2 and 9, 2013 and on January 8, 2014. The respondent testified, as did his current domestic partner. The appellant testified, together with her ex-domestic partner. The Office of the Children’s Lawyer (the “OCL”) clinical investigator filed a report with the court and also testified at trial.
12The trial judge found that it was in the children’s best interests that the respondent have sole custody. The trial judge found this to be a high conflict case characterized by “bitter, ongoing conflicts since separation”. The trial judge’s findings, found in both the February 3 and March 10, 2014 Reasons, included the following findings as to the appellant:
that she has “demonstrated an inability to be reasonable when it comes to custody and access”;
that she was “angry, rude and irritable” during the presentation of the evidence, consistent with comments of the OCL investigator;
that she has no “concept of reasonableness” and had made an “impulsive” and “irresponsible” decision to move to Kenora;
that she had a general disrespect for court orders;
that she had engaged in violence toward the respondent and his partner in the presence of the children, causing them “emotional harm” and “emotional stress”;
that she had an “inability to deal with reality and (to) act in a responsible parenting manner, which is safe to the children”;
that in court she “presented a very volatile, outrageous demeanour with respect to the whole process”;
that it was “problematic” that she did not call her current partner to give evidence at the hearing, causing the court to be “concerned about the stability of that relationship.”
13The trial judge rejected the OCL investigator’s recommendation that the appellant should be awarded sole custody of the children. The trial judge stated that he did not accept the investigator’s conclusion “because she was not present in court and did not see how the appellant presented in front of the respondent or his partner”, the appellant’s behaviour apparently including animosity, swearing, vulgarity and generally threatening behaviour.
14The court also found that the investigator did not witness the incident of violence by the appellant toward the respondent and his partner in the presence of the children. The trial judge also found that the investigator “completely ignored” all contempt allegations, said to be obvious breaches of various orders.
15The trial judge went on to find that the respondent and his partner “presented as very reasonable individuals”. In accepting the clinical investigator’s conclusion that both parents were equally able to parent the children, the trial judge found that the respondent and his partner would “provide the stability that is needed for these children to proceed and grow in the absence of the volatile, aggressive nature of the mother so that they can become well-adjusted adolescents then adults.”
16The trial judge also found that “the education and health needs of the girls can be achieved in the father’s care in Ignace as he is well aware of their physical, emotional and medical needs and along with the assistance of (his current partner) will provide the stability needed to raise these children properly”.
17In the Supplemental Written Reasons released March 10, 2014, the trial judge acknowledged that;
It is an exceptional case when the court changes custody after there has been four years of a custodial parent or de-facto custody, but (the previous order) was a joint custody order and the court found that this was an exceptional case; that the circumstances were so out of line with what was in the best interests of the children being in their mother’s care. That is why the court changed custody and I found that this is one of those exceptional cases.
18The trial judge granted sole custody of the children to the respondent and specified access to the appellant. The appellant was also ordered to pay child support to the respondent.
The Costs Decision
19The trial judge began his analysis as to costs by noting the presumption that a successful party is entitled to costs pursuant to Rule 24(1) of the Family Law Rules (the “FLRs”). The court was provided with an Offer to Settle by the respondent dated September 26, 2013. This Offer to Settle provided for, among other things, joint custody of the children with the children remaining resident with the appellant. The court found this offer to be more favourable to the appellant than the result achieved at trial. The court stated that “there was no offer to settle by (the appellant)”.
20The court ordered “party-and-party costs at two-thirds” up until the date of the offer in the amount of $2,147.90 and “solicitor/client” costs after that point “because it continued on and should not have and there was no offer to settle by (the appellant).” This latter amount was $4,322.25 plus disbursements of $471.99, for a total costs award of $6,942.14. The costs were ordered payable forthwith.
Issues
21There are three issues raised by the appellant on this appeal:
Did the trial judge find that the threshold requirement of a material change in circumstances affecting the children had been met prior to embarking on his analysis of the best interests of the children;
If the trial judge found that the threshold had been met, did he then apply the correct legal analysis pursuant to s. 24 of the Children’s Law Reform Act, R.S.O. 1990, Chapter C. 12, (the “CLRA”) in determining the best interests of the children; and,
Did the trial judge apply the correct legal analysis pursuant to Rule 24 of the FLRs when determining costs.
Standard of Review
22The leading case addressing the standard of review on appeal is Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. The standard of review for findings of fact is palpable and overriding error. The standard of review on a question of law is correctness.
Discussion
Issue #1
Did the trial judge find that the threshold requirement of a material change in circumstances affecting the children had been met prior to embarking on his analysis of the best interests of the children?
23Section 29 of the CLRA provides that:
A court shall not make an order under this Part (a variation order) 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.
24The Supreme Court of Canada case of Gordon v. Goertz, [1996] 2 S.C.R. 27 remains a leading case on variation applications brought under the Divorce Act, R.S.C. 1985, c.3 or provincial family law legislation such as the CLRA of Ontario.
25At the first stage of a two stage inquiry, before a court can consider the merits of the variation application, it must be satisfied that there has been a material change in circumstances affecting the child since the most recent order was made. If an applicant is unable to establish the existence of a material change, the inquiry can go no further. See Gordon at para 10.
26Prior to considering the merits of an application to vary a custody order a judge must be satisfied of:
A change in the condition, means, needs or circumstances of the child and/or the ability of the parents to meet the needs of the child;
Which materially affects the child; and,
Which was either not foreseen or could not have been reasonably contemplated by the judge who made the initial order. See Gordon at para. 13.
27This issue was considered by the Ontario Court of Appeal in Litman v. Sherman, 2008 ONCA 485. Epstein J. held 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 in circumstances between the time the previous order was made and trial. In Litman the Court found that the reasons of the trial judge made “no mention of this threshold issue” and held that the trial judge had no jurisdiction to vary the previous custody order.
28In coming to this conclusion, Epstein J. rejected the submission that a finding of a material change in circumstances was implicit in the trial judge’s repeated references to the acrimony between the parents. In doing so, Epstein J. found that the conflict between the parties in the case before her had existed since the birth of the child (the child was born post-separation) and therefore “did not constitute either a change or a situation that could not have been foreseen by them at the time of (the original order).” See paras. 32 – 36 of Litman.
29The Ontario Court of Appeal again considered a court’s jurisdiction on a variation application in Persaud v. Garcia-Persaud, [2009] ONCA 783. In holding that the motion judge was without the jurisdiction to make the order in question, the Court, citing Litman, stated as follows:
As this court has made clear, jurisdiction to vary a custody and access order is dependent on an explicit finding of a material change in circumstances since the previous order was made. If an applicant fails to meet this threshold requirement, the inquiry can go no further. The matter is jurisdictional and a court must make a finding of a material change in circumstances even when, as here, both parties request a variation. See Persuad para. 3.
30In addressing this threshold issue at the hearing of the appeal, the respondent acknowledged that neither the trial judge’s reasons dated February 3, 2014 nor his supplemental reasons dated March 10, 2014 explicitly addressed the issue. It was submitted that the finding of a material change in circumstances was implicit because both parties had requested a variation of the previous order and because counsel for the appellant had, at trial, expressly stated that the previous order was unworkable and contrary to the children’s best interests.
31In reviewing the transcript of the trial proceedings, it is obvious that the trial judge was cognizant of the threshold requirement during the trial. As soon as the respondent began to testify on the first day of trial, the court interrupted the direct examination in an attempt to focus the evidence on precisely that issue:
Just a minute, did this happen prior to separation or is this – you are giving me the full history here. Material change in circumstances only goes from the last order.
I have to have a material change in circumstances to change those orders, there has to be a material change. I think the case law is clear on that. Since the granting of the last final order. Transcript of Proceedings, page 3.
32In my opinion, Litman and Persaud are distinguishable from the case before me. The respondent’s request to change the previous custody order from joint custody with the children in the appellant’s primary care in Dryden to sole custody with the children residing with him in Ignace came about because of the mother’s August 2012 unilateral move to Kenora with the children.
33While the mother consented to the temporary order of September 24, 2012 requiring her and the children to move back to Dryden, she responded to the respondent’s Motion to Change very shortly thereafter by requesting the previous orders be varied to allow her to move to Kenora with the children.
34The parties separated in August 2009. The children resided primarily with the appellant in Dryden until August 2012 at which time the mother moved to Kenora with the children despite of the respondent’s opposition. The mother’s actions were the catalyst for the parties’ respective variation applications in which each of them sought to change the children’s residence from Dryden.
35As noted by McLachlin J. in Gordon v. Goertz, “relocation will always be a change. Often, but not always, it will amount to a change which materially affects the circumstances of the child…” See para. 14.
36In Slade-McLellan v. Brophy, 2012 NSCA 80, the appellant/mother proposed to move to Alberta with the children so she could be with her new partner. She applied to vary the father’s access. The mother testified that she would not move if her application to vary access was unsuccessful. The mobility application was dismissed. The trial judge then proceeded to review the custody arrangement and varied it to provide the father with primary care.
37The issue before the Nova Scotia Court of Appeal was whether the trial judge erred in reviewing the custody arrangement after having dismissed the mobility application. The Court held that once the material change in circumstances threshold had been crossed, it was open to the trial judge to review the custody arrangement.
38In the case under appeal, both parties sought to change the residence of the children. In my opinion, this was a material change in circumstances that was implicitly recognized by the trial judge and essentially acknowledged by counsel for both parties at trial.
39I find that the threshold requirement of a material change in circumstances affecting the children had been met. The trial judge therefore had jurisdiction to then determine what custodial arrangement was in the best interests of the children. The first ground of appeal is dismissed.
Issue #2
Did the trial judge apply the correct legal analysis pursuant to s. 24 of the CLRA in determining the best interests of the children?
40Sections 24 (1), (2) and (4) of the CLRA provide as follows:
- MERITS OF APPLICATION FOR CUSTODY OR ACCESS – (1) The merits of an application under this Part in respect of custody of or access to a child shall be determined on the basis of the best interests of the child, in accordance with subsections (2), (3) and (4).
(2) BEST INTERESTS OF CHILD – The court shall consider all the child’s needs and other members of the child’s family who reside with the child, and circumstances including,
a) the love, affection and emotional ties between the child and,
i. each person entitled to or claiming custody of or access to the child,
ii. other members of the child’s family who reside with the child, and
iii. persons involved in the child’s care and upbringing;
b) the child’s views and preferences, if they can reasonably be ascertained;
c) the length of time the child has lives in a stable home environment;
d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;
e) the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;
f) the permanence and stability of the family unit with which it is proposed that the child will live;
g) the ability of each person applying for custody of or access to the child to act as a parent; and
h) the relationship by blood or through an adoption order between the child and each person who is a party to the application.
(4) VIOLENCE AND ABUSE – In assessing a persons’ ability to act as a parent, the court shall consider whether the person has at any time committed violence or abuse against,
a) his or her spouse;
b) a parent of the child to whom the application relates;
c) a member of the person’s household; or
d) any child.
41The merits of any application for custody of a child or children must be determined on the basis of the best interests of the child or children. Pursuant to S. 24(2) of the CLRA, specific factors that are relevant to that determination in a particular case must be considered.
42It is appropriate to comment on the applicable standard of review to be followed by appellate courts in custody cases. In preparing reasons in custody cases, a trial judge is required to consider each of the factors set out in s. 24 of the CLRA in light of the evidence adduced at trial. A trial judge is not “obligated to discuss every piece of evidence in detail, or at all, when explaining his or her reasons for awarding custody to one person or another. See Van de Perre v. Edwards, [2001] 2 S.C.R. 104 at para. 10.
43In Van de Perre, the Supreme Court instructed appellate judges to remind themselves of the narrow scope of appellate review in family law cases involving custody. Citing Hickey v. Hickey, [1999] 2 S.C.R. 518, the Court reiterated, at paragraph 11:
Trial judges must balance the objectives and factors set out in…provincial…statutes with an appreciation of the particular facts of the case. It is a difficult but important determination, which is critical to the lives of the parties and to their children. Because of its fact-based and discretionary nature, trial judges must be given considerable deference by appellate courts when such decisions are reviewed.
44A further comment on the limited scope of appellate review in custody cases is found in P. (D.) v. S. (C.) (Droit de la Famille – 1150), [1993] 4 S.C.R. 141 at 192:
Similarly the trial judge is in the best position to assess evidence pertaining to the best interests of the child. It is the trial judge who not only hears the evidence but also has the great advantage of watching the demeanour of all who testify. It is the trial judge who can take into account the significant pauses in the responses, the changes in facial expression, the looks of anger, confusion and concern. In the vast majority of cases as a result of hearing and seeing all the witnesses, it is the trial judge who is in the most advantageous position to determine the best interests of the child.
45If a trial judge commits a palpable and overriding factual error, or a material legal error, or unreasonably exercises his discretion, an appellate court has a duty to intervene. Appellate review requires material error. An omission is only a material error if it gives rise to the reasoned belief that the trial judge must have forgotten, ignored or misconceived the evidence in a way that affected his conclusion. See Van de Perre at para. 15.
46The trial judge gave detailed reasons after hearing three days of evidence. Most importantly, he was able to observe the character and demeanour of the mother and father in a stressful situation. In my opinion, he properly considered the relevant factors in light of the evidence adduced at trial, as he was required to do pursuant to s. 24 of the CLRA.
47The trial judge commented specifically on the length of time that the children had resided with the mother after separation (s. 24(2)(c) CLRA) and as to the stability of the respective family units of the appellant and respondent (s. 24(2)(f) CLRA).
48At paragraph 10 of his March 10, 2014 supplemental reasons, the trial judge recognized that it was “exceptional” to change custody after children had been with one parent for four years. In doing so, the trial judge held that “the circumstances were so out of line with what was in the best interests of the children being in the mother’s care”. I understand this to mean that, considering all relevant factors, the trial judge was satisfied that it was in the children’s best interests to grant the respondent custody, despite the four year status quo.
49Addressing the permanence and stability of the respective family units, the trial judge expressly stated that he “was concerned about the stability” of the appellant’s current relationship because her current partner did not testify at trial. He also noted that the appellant had been in multiple relationships since her separation from the respondent – “Ms. Weare uses partners then disregards them when it doesn’t work out…”
50In contrast, the trial judge expressly found the respondent and his current partner, who did testify, to be “very reasonable individuals in their position at court.” In accepting the OCL investigator’s conclusion that both parents had “the equal ability to parent”, the trial judge found that the respondent and his partner would “provide the stability that is needed for these children to proceed and grow in the absence of the volatile, aggressive nature of the mother…”
51In addressing s. 24(2)(d) and (g) of the CLRA, the trial judge held that he was “satisfied that the education and health needs of the children can be achieved in the Father’s care in Ignace as he is well aware of their physical, emotional and medical needs and along with the assistance of (his current partner) will provide the stability needed to raise these children properly.”
52In my opinion, the trial judge’s numerous, negative comments about the mother relate to the same factors. The trial judge, having heard the evidence of all witnesses and observing the mother’s demeanour, found her to be generally unreasonable in regard to custody and access issues, disrespectful of court orders pertaining to access, and irresponsible and impulsive in her parenting decisions.
53The appellant submits that the trial judge made a material error in his s. 24 analysis when he refused to allow the appellant to lead evidence of violence by the respondent toward the appellant in 2007, while at the same time placing some weight on an incident of violence by the appellant toward the respondent’s current partner in the presence of the children.
54The trial judge refused to hear this evidence on the basis that it occurred prior to the date of the court orders which the parties sought to vary and was therefore “not relevant to this material change.” Section 24(4) of the CLRA states that in assessing a person’s ability to act as a parent the court, “shall consider whether the person has at any time committed violence or abuse against” his or her spouse.
55Failure to admit the evidence of the respondent’s past violence toward the appellant was an error by the trial judge. However on my reading of the record and the trial judge’s Reasons and Supplemental Reasons it was not a material error. I do not believe hearing this evidence would have changed the outcome in any event.
56Bearing in mind the deference to be given to trial judges in custody cases, I am satisfied that the trial judge gave appropriate weight to the relevant factors set out in s. 24(2) of the CLRA. The second ground of appeal is dismissed.
Issue #3
Did the trial judge apply the correct legal analysis pursuant to Rule 24 of the FLRs when determining costs.
Rule 24(1),(5) and (11) of the FLRs provides the following:
- (1) SUCCESSFUL PARTY PRESUMED ENTITLED TO COSTS – There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal.
(5) DECISION ON REASONABLENESS – In deciding whether a party has behaved reasonably or unreasonably, the court shall examine,
a) The party’s behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle;
b) The reasonableness of any offer the party made; and
c) Any offer the party withdrew or failed to accept.
(11) FACTORS OF COSTS – A person setting the amount of costs shall consider,
a) The importance, complexity or difficulty of the issues;
b) The reasonableness or unreasonableness of each party’s behaviour in the case;
c) The lawyer’s rates;
d) The time properly spent on the case, including conversations between the lawyer and the party or witnesses, drafting documents and correspondence, attempts to settle, preparation, hearing, argument, and preparation and signature of the order;
e) Expenses properly paid or payable; and
f) Any other relevant matter.
57In his March 10, 2014 costs decision, the trial judge noted the presumption as to costs found in FLR 24(1). The trial judge found that the respondent’s offer to settle was the only offer filed when costs were being argued. He further found that the terms of that offer were more favourable to the appellant than the result she achieved at trial. The trial judge therefore ordered the appellant to pay “party and party” costs up to the date of the order and “solicitor/client” costs thereafter. The total costs award to be paid by the appellant was $6,942.14.
58The appellant submits that, pursuant to FLR 24(11)(f), the trial judge was required to consider “any other relevant matter” when addressing costs. The appellant submits that the trial judge failed to consider the appellant’s ability to pay costs when assessing costs.
59I am persuaded that the trial judge made errors in law when he ordered costs against the appellant in the sum of $6,942.14. The trial judge simply applied the presumption in FLR 24(1), found that the respondent achieved an order more favourable than his offer and awarded costs.
60In my opinion, there were two errors in the legal analysis as to costs. First, the appellant had in fact made three Offers to Settle, dated October 12, 2012, January 14, 2013 and August 13, 2013. These Offers were filed, on consent, at the hearing of the appeal. It is not clear from the record if the Appellant filed these Offers to Settle during submissions as to costs. It is obvious they were not considered by the trial judge in his costs analysis.
61While none of the appellant’s offers represented a better result than the respondent achieved at trial, they were nonetheless reasonable attempts to settle difficult and acrimonious litigation. While the trial judge may not have been aware of the offers, failure to consider them is an error in law which led to a finding by the trial judge that the appellant was an unreasonable litigant.
62Secondly, the trial judge failed to place appropriate weight on the appellant’s ability to pay costs which, in my opinion, was a relevant issue when determining costs in this case. The appellant’s income (imputed) was found to be $20,000.00/yr. She was ordered to pay child support of $308.00/mth plus $100.00/access visit for transportation costs. Having to pay costs of almost $7,000.00 on top of these other financial obligations is, in my opinion, unreasonable.
63At the end of the day, any costs award has to be fair and reasonable considering all relevant factors. In my opinion, the trial judge fell into error in awarding costs in the amount he did against the appellant. The costs ordered were not fair and reasonable in light of all relevant factors.
64The March 10, 2014 costs award of the trial judge is set aside. In considering all relevant factors as to costs, I feel that an award of costs of $2,500.00 to be paid by the appellant to the respondent is fair and reasonable.
Summary
65The appeal as to the custodial disposition is dismissed. The appeal as to costs is allowed and the trial judge’s order as to costs is set aside. Costs of the trial are as set out in paragraph 64 hereof.
66Success on this appeal was mixed, with the respondent being more successful than the appellant. Costs of the appeal are fixed at $1,500.00 payable by the appellant to the respondent within six months.
Justice J. S. Fregeau
Date: September 22, 2015
COURT FILE NO.: FS-14-5343
DATE: 2015-09-22
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Chelsea Marcelle Weare
Appellant
- and –
Nathan Eugene Naumann
Respondent
REASONS ON APPEAL
Fregeau, J.
Released: September 22, 2015
/sf