ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
AMBER LEE MOFFAT
Edward Rae, for the Appellant
Appellant
- and -
JASON MILLER
Wayne Stickland, for the Respondent
Respondent
HEARD: November 16 and December 15, 2015
RIVARD j.
REASONS FOR JUDGMENT
Appeal from the custody and access order by Klein, J. delivered November 12, 2014.
1The parties both request an order for custody of their boys William, born January 18, 2009, and Jack born September 8, 2010. The trial took place in the Ontario Court of Justice before Klein J. on August 15, 18, September 5 and 29, 2014.
2Justice Klein awarded custody to the applicant mother with access to the father. Child support was also ordered in accordance with the Child Support Guidelines.
3The father appeals the custody order. On his behalf, it is submitted the trial judge erred in law or made an error of mixed fact and law and/or a palpable and overriding error of fact when he found that his ex parte order made on October 18, 2013 was based on a lack of full disclosure of material facts by Jason Miller thereby establishing an unlawful status quo that was not to be considered in the “best interests” analysis pursuant to s. 24 of the Children’s Law Reform Act.
4The order is also appealed on the ground that the trial judge participated in the trial in such a manner that a neutral observer would have a reasonable apprehension of bias.
1. Overview
5The parties met in 2006. They began to cohabit in North Bay on November 7, 2007. Approximately six months into the relationship, Amber Moffat began to feel like she was a personal possession.
6The child William was born on January 18, 2009. Although Ms. Moffat was considering leaving Mr. Miller before the child’s birth, she decided to stay in the relationship so that William would have two parents. By June 20, 2008, the parties had moved into Mr. Miller’s grandfather’s house in Mactier, Ontario, a two hour drive from North Bay.
7This house was full of the grandfather’s personal property. The clutter had to be removed and the house cleaned and repaired. Following this move, Jason Miller developed kidney stones which caused him significant pain and disability. He was prescribed Demerol, OxyContin, oxycodone and slow release morphine to deal with the pain. His father operated a bait shop in Mactier which Jason Miller managed.
8When William was born, Amber Moffat’s sister, Dawn Moffat, travelled to Mactier to assist with the chores. There is a dispute in the evidence as to the extent of Mr. Miller’s involvement with the child but it does appear that Amber Moffat was the child’s primary caregiver.
9When William was about eight months old, Ms. Moffat decided her relationship with Mr. Miller wasn’t working out and told him she was leaving. After some discussion, they decided to remain together.
10Jack was born on September 8, 2010. Ms. Moffat testified this did not result in any change on the part of Mr. Miller. She continued to be the primary caregiver of both children. Her sister, Dawn, continued to travel to Mactier to help with the cleaning, shopping and care of the children.
11When Jack was born, Dawn cared for William for a week while Ms. Moffat recovered from her C-section.
12Ms. Moffat grew increasingly dissatisfied with her relationship and the parties separated in October of 2011. She moved back to North Bay and took the children with her. Christmas of 2011 was spent in Mactier with the final separation of the parties occurring in January of 2012.
13From January 2012 until May of 2012, both children resided with their mother in North Bay. Mr. Miller had regular access to them. In May of 2012, the parties agreed there would be week-about access by both parents.
14In July of 2012, Mr. Miller obtained employment in Montreal while Ms. Moffat remained in North Bay with the children. Mr. Miller’s employment ended and he moved back to North Bay in January of 2013 when he resumed regular access to the boys.
15Near the end of January 2013, Ms. Moffat fractured her collar bone. Mr. Miller had commenced employment at a call centre.
16On March 4, 2013 the parties had a significant disagreement. Early that morning, Ms. Moffat attempted to call Mr. Miller to have him take care of William, as she had to go to work and she believed William couldn’t go to his daycare. She couldn’t get a response from Mr. Miller. She attended at his apartment but he wouldn’t answer the door. Frustrated, she kicked the door and caused damage to it. Mr. Miller was awakened and got up. Ms. Moffat left William with him and rushed off to work. Mr. Miller informed his landlord of the damage and the landlord served a No Trespass notice on her. Mr. Miller also reported the incident to the police.
17A second incident occurred on March 6, 2013 when Ms. Moffat attended Mr. Miller’s apartment. He called the police.
18On March 7, Mr. Miller went to Ms. Moffat’s house to retrieve personal property. She refused to give it to him and he again called the police.
19On March 11, 2013, Ms. Moffat attended court and filed an application for custody of the children. The application was returnable on April 18, 2013.
20In the meantime, on April 6, 2013, Mr. Miller complained to the North Bay Police Service about alleged drug involvement by Ms. Moffat, Facebook harassment and his fear she might assault him. The police took no action.
21On April 18, 2013, the parties appeared before Justice Rodgers. They were self-represented. A temporary order was made directing that both children were to continue to reside with their mother. The involvement of the Office of the Children’s Lawyer was requested.
22On June 4, 2013, Mr. Miller brought an ex parte motion requesting custody of the children with supervised access to the mother. Justice Rodgers refused to grant this relief and ordered the children reside with their mother.
23On June 4, 2013, Mr. Miller again moved ex parte for custody and supervised access. Judge Rodgers directed that the matter should only proceed with notice to Ms. Moffat. He ordered that the children be returned to her.
24Several court attendances followed to deal with Mr. Miller’s access to the children which was to take place very second weekend. On August 8, 2013, this access was expanded with the consent of the parties.
25Ms. Sharon Chayka, on behalf of the Children’s Lawyer began her investigation in June of 2013. On September 13, 2013, she met with the parties for a disclosure meeting. Ms. Chayka informed them of her findings and advised she would be recommending that Mr. Miller have custody of the children. Ms. Moffat was overwhelmed and devastated by this. What followed was a series of text messages between Ms. Moffat and her sister Dawn. These were inadvertently intercepted by Mr. Miller. There were also text messages between Ms. Moffat and Mr. Miller. These text messages reveal that Ms. Moffat was distraught, confused and overwhelmed by the events. She requested that her sister take care of the children and expressed a fear she might hurt the children. She asked Mr. Miller to pay child support or to take the children. An order had been made by Justice Klein on May 30, 2013 requiring Mr. Miller to pay temporary child support but that support had not been paid.
26On October 8, 2013, Ms. Chayka’s report was filed with the Court.
27In the meantime, Mr. Miller, who was concerned about the safety of the children as a result of reading the text messages exchanged by Ms. Moffat and her sister, reported the matter to the Bracebridge O.P.P., the North Bay police, and the Children’s Aid Society.
28He then moved ex parte on October 18, 2013 for a temporary order granting him custody of the children, with supervised access to Ms. Moffat. His motion was supported by his affidavit in which he reported the recommendations of Ms. Chayka. He expressed his concerns about the well-being of the children and stated Ms. Moffat had, on October 14, 2013, refused to meet with him for four hours to receive the children. Mr. Miller appended to his affidavit some of the text messages between Ms. Moffat and her sister. He reported Ms. Moffat was being investigated by the police for illegal hacking of his cell phone and other illegal activity. He stated that on October 14, 2013, he had dropped off the children at Ms. Moffat’s sister’s residence. Mr. Miller swore that “Serious safety concerns have arisen”.
29This ex parte motion was heard by Justice Klein who ordered the children be placed in Mr. Miller’s care and directing the police to assist the parties in the enforcement of the order. The matter was adjourned to October 23, 2013.
30On October 23, the matter was adjourned to October 31.
31On October 28, 2013, Justice Klein heard an ex parte motion by Mr. Miller to dispense having to bring the children to North Bay on October 31.
32The motion was dismissed.
33On November 22, 2013, both parties appeared before Justice Rodgers who confirmed Justice Klein’s temporary order of October 18.
34On March 6, 2014, the late Justice Duchesneau Ferris ordered that Ms. Moffat have unsupervised access to the children during the March break.
35On May 15, 2014, Justice Perron lifted the requirement that Ms. Moffat’s access to her children be supervised.
36On June 2, 2014, a consent order was made reflecting the parties’ agreement relating to summer access.
Did the trial judge err in finding that the ex parte order of October 18, 2013 was based on a lack of full disclosure of material facts?
37Jason Miller’s affidavit sworn October 17, 2013, in support of his “urgent” motion for interim custody expressed his concern for the well-being of the children since he had dropped them off at Dawn Moffat’s on October 14, 2013 because “the mother refused to meet me to receive them four hours earlier at the scheduled, court-ordered drop-off time of 11:00 A.M.” This fails to explain what had in fact happened. The evidence at trial disclosed that October 14, 2013, fell on Thanksgiving weekend, when Jason Miller had access to the children. Mr. Miller called Ms. Moffat and told her he would drop-off the children at 11:00 a.m. at Wacky Wings. She explained to him that she didn’t have a vehicle and couldn’t meet him at that time. She suggested he return the children on Tuesday morning, (the next day), stating she believed he would keep them until that time and she wasn’t able to make different arrangements to meet him as he suggested.
38This paints a very different scenario from the one outlined in Mr. Miller’s affidavit. This was not a situation where Ms. Moffat was abandoning the children and no longer wished or was no longer capable of caring for them.
39Mr. Miller’s affidavit does state he did drop the children off at Dawn Moffat’s residence on October 14, 2013. It fails to state, however, that Dawn Moffat was very close to these children, had had substantial involvement in caring for them and was very capable of caring for the children. During Mr. Miller’s cross-examination at trial, Justice Klein had the following exchange with Mr. Miller:
“The Court: You do know that Dawn has had a good relationship with your boys.
A. Oh certainly, certainly.
The Court: And that she appears…
A. She loves them.
The Court: … to love yours boys.
A. She loves them wholeheartedly.
The Court: And that she is – is there any questions she’d put your boys at risk in any fashion?
A. Oh no.”
40It was fair for the trial judge to conclude from this exchange that this was not an urgent situation which warranted the motion proceeding on an ex parte basis. It was reasonable for the trial judge to conclude that Mr. Miller’s concern for the well-being of the children after he dropped them off at the mother’s sister “was tempered drastically by his knowledge, given in evidence at trial, that Aunt Dawn would never do anything to put William or Jack in jeopardy.” I do not therefore find that the trial judge was in error in concluding the ex parte order of October 18, 2013 was based on a lack of full disclosure of material facts.
41I do not agree that the order made by Justice Rodgers on November 22, 2013 confirming the ex parte order resolves any lack of disclosure issues because the Court heard from both parties on November 22, 2013. Justice Rodgers was asked to deal with a matter where a temporary custody order had been made. That could not be ignored by Justice Rodgers. The ex parte order had established a new status quo.
42It was open to the trial judge to conclude this constituted “an unlawful status quo”.
43The trial judge was correct in stating that, although not determinative, the status quo is a very important factor to consider in custody cases. I do agree with the reasoning in Izyuk v. Bilousov, 2011 ONSC 6451 where the court refused to permit a party to gain a strategic advantage by creating an inappropriate status quo. Although Mr. Miller did obtain temporary custody on the basis of incomplete or misleading information, the trial judge did, in his reasons, consider that the children have been in his sole care since October 18, 2013.
44He considered the father’s position that the children were thriving in his care. However, having considered all of the factors as required by s. 24 of the Children’s Law Reform Act, including the fact the children were thriving in the mother’s care when custody was changed on October 18, 2013, the trial judge concluded she was capable of providing the same stable environment where they have lived for most of their young lives. The trial judge’s determination was based on the best interests of the children. He is entitled to deference in that regard. I will not interfere with his conclusions.
Apprehension of Bias
45In Clayson-Martin v. Martin (2015), 2015 ONCA 596, 127 O.R. (3d) 1 (Ont. C.A.) the test for reasonable apprehension of basis is stated as follows:
“would a reasonable and informed person viewing the matter realistically and practically and having thought it through, conclude that the judge, consciously or unconsciously, would not decide fairly?”
46There is a strong presumption in favour of impartiality. The threshold for finding a reasonable apprehension of bias is extremely high.
47I cannot conclude there exists a reasonable apprehension of bias in this case. The trial judge did participate in questioning the witnesses, but, he did so either to clarify matters, to elicit explanations not otherwise received or, to delve into the issue involving the disclosure on the October 18, 2013 motion for temporary custody.
48The trial judge appears to have been more gentle when questioning the mother, but he was not aggressive or argumentative in his discussion with the father. I could not find anything which would lead to the conclusion that he was predisposed to decide the issues before him in favour of the mother. It was open to him to question the adequacy of the disclosure by the father at the ex parte motion of October 18, 2013, especially after he had heard the evidence of Amber and Dawn Moffat when it became apparent to him that he should not have granted the order sought.
49The judicial intervention in this case was not excessive. For the most part, counsel were asked if they had questions arising from the questions put to witnesses by the trial judge. At no point did counsel object to the questions by the trial judge.
50On the whole, having read the transcripts of the proceedings and having regard to the issues before the court, I do not conclude there exists a reasonable apprehension of bias.
51The appeal will therefore be dismissed.
52The order made by Justice Klein on November 12, 2014 will be re-instated.
53The order of Justice Ellies on November 7, 2014 staying the order of the trial judge shall be vacated.
54Submissions as to costs, including costs of the motion to hear fresh evidence to be made in writing, within 30 days. Written submissions not to exceed five pages.
Rivard J.
Released: 2015/12/17
COURT FILE NO.: FS3710-14
DATE: 2015/12/17
ONTARIO
SUPERIOR COURT OF JUSTICE
AMBER LEE MOFFAT
Appellant
– and –
JASON MILLER
Respondent
REASONS FOR JUDGMENT
Rivard J.
Released: 2015/12/17