ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
ALEX VOJAN
Julie Richard-Gorman, for the Applicant/Respondent
Applicant/Respondent
- and -
CARMEN LAUZON
Robert Dinnen, for the Respondent/Appellant
Respondent/Appellant
HEARD: January 19, 2015
A P P E A L D E C I S I O N
CORRECTED DECISION
February 19, 2015: Corrected date in the citation is 20150212.
WILCOX, J.
INTRODUCTION
1This is an appeal from the final order of the Honourable Justice G.R. Maille dated October 3, 2013.
2For ease of understanding, the Applicant/Respondent in this appeal will be referred to as the father, and the Respondent/Appellant in this appeal will be referred to as the mother.
BACKGROUND
3The parties were involved in a conjugal relationship. There is one child of the relationship, Emily Vojan, born December 9, 2004. At that time, the parties lived in Kirkland Lake. Within months of Emily’s birth, they moved to South Porcupine. They separated in January, 2006.
4A final order was made in their matter by Justice R.E.W. Carr on December 16, 2006. Pursuant to Minutes of Settlement, it provided for shared custody and for the father’s access. Other terms dealt with child support, travel, mobility and passports. There was a counselling/mediation clause which will be dealt with below.
5The father moved back to Kirkland Lake in the fall of 2007. The mother and child followed about one year later. Both parties continued to reside there at the time of trial.
6It was common ground that the custody and access provisions of the order were not strictly followed. Emily had resided primarily with her mother, with access to her father.
7The father brought a motion to change the custody, access and child support provisions of the existing order. A temporary order was made on consent by Rocheleau J. on May 17, 2013 that the parties share custody of Emily on a week about basis. This was to commence May 31, 2013, but was not implemented until in or about mid-June 2013, and remained in place at the time of trial.
8Rocheleau J. also ordered that the trial be expedited. Consequently, counsel presented evidence in-chief by affidavit. Cross-examination of some witnesses was conducted out of court, with transcripts being filed as trial evidence.
9The trial was commenced and all evidence was presented on August 23, 2013. That evidence included a report prepared by Carole Vaillancourt, a clinical investigator for the Office of the Children’s Lawyer (OCL).
10Written submissions were filed on behalf of the parties. At the trial judge’s request, their counsel made brief oral submissions in chambers with respect to the above-mentioned counselling/mediation clause.
11Maille J.’s order deleted paragraphs 1 through 13 of Carr J.’s order and replaced them with provisions for the father to have sole custody subject to the mother’s access. The mother was to pay the table amount of child support plus a proportion of s. 7 expenses.
12In the appeal, the mother requests that Maille J.’s order be set aside and replaced by the order of Carr J. In the alternative, a retrial was sought.
13The Notice of Appeal lists 32 grounds for appeal, but it would have been drafted before the transcript of the proceedings at trial was available to the wife’s counsel, who had not been the trial counsel. The wife’s factum substituted argument for overview, facts and issues and was not entirely helpful in clarifying matters. Therefore, at the outset of the appeal hearing, the court asked that the grounds of appeal to be argued be listed at the outset. The wife’s counsel indicated that they were:
- the counselling/mediation clause was overridden without compelling reasons; 2) a material change in circumstances was lacking; 3) the trial judge failed to consider adequately the wife’s plan of care; 4) the decision was based on erroneous findings of fact, and 5) the support order was wrong in law.
Each of these will be dealt with in turn along with some other arguments that were mixed in with them.
#1 – THE COUNSELLING/MEDIATION CLAUSE WAS OVERRRIDDEN WITHOUT COMPELLING REASONS
14Paragraph 10 of Carr J.’s order had stated:
“if the Applicant father and the Respondent mother cannot mutually agree on an issue pertaining to the child, then the parties agree to seek the assistance of a family counsellor or a mediator”.
15It was referred to in the appeal as the “counselling/mediation clause”.
16I note that Carr J.’s order was based on the parties’ Minutes of Settlement. Also, the counselling/mediation clause is worded that the parties “agree to seek the assistance of a family counsellor or a mediator”. It is not worded as a mandatory pre-condition or alternative to litigation.
17It was common ground that the parties had not followed the counselling/mediation clause before turning to litigation again.
18The wife relied on the case of Fraizinger v. Mensher, 2012 ONSC 7363, a decision of Richetti J. of the SCJ. In it, the parties had settled child custody litigation in Minutes of Settlement which included a dispute resolution provision which said:
If there is any disagreement, the parties agree to pursue mediation and if necessary arbitration to resolve a dispute. If mediation does not resolve the dispute and the parties do not agree to arbitration, either party is free to commence a court application. The old residential schedule shall remain in place until a new one is agreed upon, ordered by arbitration or by the court.
Regardless, the mother in that case had brought a motion to deal with the parenting schedule. The court stated that, “where the parties have agreed that mediation is a pre-condition to either party seeking judicial relief (and it became a court order), the courts will and should enforce such a provision unless there are compelling reasons not to” (paragraph 36). The court found no such compelling reasons. However, faced with the practicalities of the situation, it went ahead and dealt with the matter, explicitly noting that the mediation could or would be futile.
19The father relied on the case of Lenney v. Lenney, 1996 10601 (AB KB), [1996] A.J. No. 971 (ABQB). It states that a contractual obligation to mediate in a family law conflict will be enforced, “unless the best interests of the children require the court to deal with an application before mediation can run its course” (paragraph 16).
20Also, in Duguay v. Thompson-Duguay, 2000 22515 (ON SC), [2000] O.J. No. 1541, the Ontario S.C.J. held that the court may disregard the terms of an otherwise enforceable contract dealing with custody and access if the court finds that those terms are not in the best interests of the child (paragraph 32).
21As previously noted, the trial judge requested and received additional submissions with respect to the counselling/mediation clause. Obviously, he was aware of and concerned about it.
22In paragraph 45 of his decision, he found that the “father’s decision not to avail himself of the (counselling/mediation clause) is not unreasonable given the poor communication and relationship between the parties, which made it “highly unlikely” that using it would have resolved the issues.
23In his costs endorsement of November 19, 2013, the trial judge also stated, at paragraph 6:
During brief oral submissions regarding the mediation clause made in chambers on September 9, 2013, counsel for the respondent, despite the position taken in his earlier written submissions, took the position that the mediation clause is not a bar to the motion to change, but rather is a factor to be taken into account in determining whether a material change in circumstances is established.
24The mother argued that allowing the motion to proceed and changing Carr J.’s order without first requiring counselling or mediation amounted to a reversible legal error. This was because there was no compelling reason to override the clause, the fact that the parties did not communicate well worked in favour of, not against, counselling, and the trial judge had a positive obligation to see that the clause was respected despite the parties’ election to proceed despite it.
25The father argued that there were multiple points in the proceedings when the mother could have but did not raise this and that she conceded this point as set out in the costs decision. As to whether the trial judge should have enforced the clause despite that, he submitted that it was a high conflict case and there was urgency.
26It would be preferable if parties would respect and follow such clauses prior to litigation. We see such clauses overlooked or ignored too often. Perhaps that is a result of the high conflict or urgency in those cases, and the other cases in which such clauses are followed seldom come to our attention.
27Be that as it may, the trial judge considered the situation and the best interests of the child. He noted that it was highly unlikely that use of the clause would have resolved the situation. This was a matter in which Rocheleau J. had already ordered that the trial be expedited in the child’s interest. Even if the mother had insisted on using the clause, it was open to the trial judge to override it in the interests of the child. However, the mother did not. Her counsel waived it explicitly. The clause was in place because of an earlier agreement of the parties. It was not mandated by law in the way that child support is. It was open to the parties to agree to a further order overriding the clause, which they did implicitly initially, through their conduct, and then explicitly, as already noted.
28It follows that I find no error by the trial judge in this regard. This ground of appeal is dismissed.
#2 – THERE WAS NO MATERIAL CHANGE IN CIRCUMSTANCES
29S. 29 of the Children’s Law Reform Act states:
A court should 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 circumstance that affects or is likely to affect the best interests of the child.
30In his reasons for judgment, the trial judge set out that section and reviewed the case law on material changes in circumstances. He then found that each of four points constituted the necessary material changes in circumstances:
- the parties had not followed the custody and access provisions for some time; 2) the child is old enough to express her views and preferences, which she was not when Carr J.’s order was made; 3) communication and cooperation between the parties had become ineffective, affecting their ability to make arrangements with respect to the child; 4) the child had experienced significant absenteeism from school.
31The mother submitted that the difficulty with number 1is that it is hard to know where it led the court. I disagree. The trial judge had noted that, according to the case law, once a material change in circumstances is found, the court must consider the matter anew, in light of the existing circumstances, which it did.
32On number 2, the mother submitted at length that the evidence of the child’s views and preferences was flawed. With respect, that misses the point. The material change in circumstances found by the trial judge was that the child was then old enough to be able to express her views and preferences, not those views and preferences themselves, which were dealt with at a later stage of the decision.
33With respect to number 3, the mother objected to the trial judge’s finding a material change in circumstances on the basis that the parties’ communications had become ineffective, on two grounds. Firstly, the evidence of poor communication was not clear, and there was evidence that they could communicate. Secondly, the trial judge’s decision in the case visited consequences on the mother out of proportion to her failure to communicate.
34As with many of the Appellant mother’s arguments, this seems perilously close to an invitation to re-try the case, which is not the function of an appeal.
35The trial judge gave examples in his decision of the parties’ failure to communicate which could affect the child. I find no error there. The second ground is, I think, irrelevant. The overriding issue is what is in the best interests of the children, not what would be proportional to one of perhaps several material changes in circumstances.
36Regarding number 4, the mother submitted that the child’s school absenteeism is admitted, but not the mother’s fault for it, although she was found to be at fault. Also, she submitted that the absenteeism was given disproportionate weight and it was used to impose a term of the order which she referred to as the “penalty clause” and which, she said, the trial judge ought not to have imposed.
37Again, the absenteeism itself was what was found to be a material change in circumstances. The implications of it for custody and access were dealt with later in the decision.
38The father submitted that the wife had also sought changes to Carr J.’s order, which was no longer workable. Had it been otherwise, the mother had had two years in these proceedings to deal with this issue.
39I am not persuaded that the trial judge erred in finding material changes in circumstances and therefore dismiss this ground of appeal.
40Within the mother’s argument that there was no material change in circumstances, she made two other arguments:
- the OCL report was deeply flawed and should not have been relied upon, 2) the OCL’s report included hearsay about the child’s views and preferences.
41Dealing with the first argument, the wife described the OCL report as “biased”, “poisonous”, and “prejudicial” among other things, and contended that it included some irrelevant information and excluded some relevant information.
42I note, however, that the investigation and report of the OCL is provided for by the Courts of Justice Act, s. 112, which provides that the report shall form part of the evidence. There is also provision for a party to dispute the report. Indeed, the clinical investigator who prepared the report appeared as a witness at trial and was cross-examined by counsel for both parties. The OCL’s disclosure meeting was held on January 15, 2012. Both parties attended with counsel. The report itself is dated January 30, 2013. Any shortcomings in the investigation and report could have been identified well before trial and decisions made about disputing the report and what evidence to lead at trial as a result. Indeed, the trial judge in his reasons noted that the mother disputed the OCL’s report, reviewed and responded to her criticisms, and indicated that the investigator was not shaken in cross-examination and that no new evidence was put to her then that led her to believe that the report’s recommendations should be changed.
43I see no error in the trial judge’s handling of this. He was entitled to receive the report into evidence.
44Turning to the second argument, the body of the OCL report states that the child would prefer to reside with her father and have access with her mother, although an appendix notes that she was referred to Children’s Mental Health Services on September 5, 2012 because she was reacting to the conflict between her parents and telling both that she did not want to return to the other. The trial judge properly considered the needs and circumstances of the child as listed in s. 24(2) of the Children’s Law Reform Act. These include the child’s views and preferences, if they can reasonably be ascertained. The trial judge found that they could be ascertained, and that her preference was to reside with her father and have access to her mother. This was based on the OCL report and on the cross-examination of the clinical investigator. However, the trial judge was careful to state that the child’s views and preferences were only one factor that he took into account, that he gave them modest weight, and that they were not determinative or overriding.
45The mother objected to the trial judge placing reliance on the child’s statements of her views and preferences without first having conducted a voir dire into the reliability of those statements, as required by the Superior Court of Justice in the case of Ward v. Swan, 2009 22551 (ON SC), 95 O.R. (3d) 475.
46A review of the transcript of the cross-examination of the clinical investigator by counsel for each of the parties confirms that there was no procedure used that was explicitly called a voir dire. Counsel’s questions, however, touched on some topics which would properly be covered in such a voir dire, although it could not be called a complete voir dire on the issue.
47Although it would have been proper to have held a voir dire, I do not find the failure to do so fatal to the trial judge’s decision in all of the circumstances. There are at least some of the indicia of reliability that would be looked for in a voir dire. For example, the OCL purposely interviewed the child in a neutral environment rather than in either parent’s home. Ultimately, however, the trial judge explicitly put little weight on the child’s views and preferences in making his decision.
48Within the submissions regarding the material change in circumstances, the mother objected to the third term of the trial judge’s order, which was:
- If Emily is late or absent from school while in Ms. Lauzon’s care on more than three occasions during any school year, Ms. Lauzon’s weekend access shall be reduced to Friday after school to Sunday evenings at 6:30 p.m. for the remainder of that school year.
The mother referred to it as the “penalty clause”. The objections were that it did not differentiate between minor and other lateness, it is not sensitive to valid reasons for being late, and it penalizes the child. The court was referred to a Nova Scotia Court of Appeal case, Soper v. Gaudet, 2011 NSCA 11, 2011 N.S.C.A. 11, in which a judge’s suspension of access without considering whether it was in the best interests of the child was found to be a reversible error of law.
49It is important to see the impugned term in context. The mother’s regular access is every second weekend from Thursday after school to Monday morning. The trial judge had found that the child’s record of lateness and absenteeism while in the mother’s care, and the mother’s excuses for them, to be unacceptable. No such problems were noted when the child was in the father’s care.
50In this context, the impugned term can be seen as an effort to promote the best interests of the child, and not as an error of law.
#3 – THE TRIAL JUDGE FAILED TO CONSIDER ADEQUATELY THE MOTHER’S PLAN OF CARE
51In his reasons for judgment, the trial judge identified the parties’ competing plans of care, summarizing the father’s as for his sole custody, with him having decision-making authority, subject to the mother’s access, while the mother’s plan was for shared custody on a week about basis.
52He then quoted from Lawson v. Lawson, 2006 26573 (ON CA), [2006] O.J. No. 3179 where the Ontario Court of Appeal stated that “joint custody is not appropriate where parents are unable to cooperate or communicate effectively”.
53Having found that the parties had an ineffective level of communication and cooperation, he then held that “joint or shared custody is not appropriate, nor in Emily’s best interests”. He went on to find that it is in the best interests of the child to award the father sole custody subject to the mother’s access on the basis that the father’s ability to parent was superior to the mother’s.
54In doing so, the mother submitted, the trial judge confused joint custody with shared custody and committed a serious error of law by extending the decision in Lawson regarding joint custody to shared custody. Having done so, he gave no further consideration to the mother’s plan but instead looked at who should have sole custody.
55In making this argument, the mother referred to the case of R.(F.F.) v. F.(K.) 2012 NFLD (F) 6, a decision of the Newfoundland and Labrador Supreme Court (Trial Division), which states at paragraph 105:
Klubec, J. in T.(T.E.) v. L.(J.D.), 2003 SKQB 517, 2003 S.K.Q.B. 517 (SK.Q.B.) at p. 30 defined joint custody and shared parenting as follows:
“Joint custody” means an arrangement whereby the parents share responsibility in making major decisions concerning their child’s welfare, be the welfare of a long – or short – term nature. Whether the child resides only with one parent or spends an equal amount of time with each parent is of secondary importance to the arrangement. “Shared parenting” means the parents jointly exercise normal parenting authority with the child dividing his or her time between their respective homes, usually on a rotating basis, sometimes referred to as “divided custody.”
56The mother also draws on the maximum contact principle to support her position.
57There is a problem here with the imprecise language often used in family law cases. The court in R.(F.F.) spoke of “joint custody” and “shared parenting”. The latter was also known as “divided custody”. The mother uses shared parenting and shared custody interchangeably. In her submissions, shared custody amounted to equal time sharing, leaving open the question of who makes decisions. To me, that sounds more like a custody and access situation. The legislation is of limited help. The Divorce Act defines “custody” to include “care, upbringing and other incidents of custody”. The Children’s Law Reform Act states at subsection 20(2) that a person entitled to custody of a child has the rights and responsibilities of a parent in respect of the person of the child and must exercise those rights and responsibilities in the best interests of the child. Only the Child Support Guidelines have a definition of shared custody, which involves having access to or physical custody of a child for 40 or more percent of the time, for purposes of calculating child support.
58Assuming shared parenting or shared custody involved the exercise of parental authority by either or both of the parents while the child splits their time between them, then I agree with the father’s counsel that that would require even greater communication between the parents than with joint custody, in which there is only a limited number of areas of shared decision making.
59Therefore, I do not find that the trial judge erred as alleged, and I dismiss this ground of appeal.
#4 – THE TRIAL JUDGE BASED HIS DECISION ON PATENTLY ERRONEOUS FINDINGS OF FACT.
60Two matters were dealt with under this heading.
61First, in the Reasons for Judgment, the trial judge found that the mother “often lacks objectivity in assessing Emily’s health”. The mother questioned this, alleging there is an absence of medical evidence to support it but stating that there is medical evidence to the contrary.
62Read objectively, however, the Reasons show that the trial judge reviewed the medical evidence in a balanced way and rejected some of the father’s contentions against the mother. Indeed, he was not satisfied that she had subjected the child to unnecessary medical care, sought medical diagnoses to explain her parenting difficulties, nor had any inappropriate motive for seeking medical care for the child. The basis for finding that she lacked objectivity was explained.
63Next, there was evidence, including photos, that the mother’s home was, on one occasion, in an inappropriate condition with respect to cleanliness and tidiness. The trial judge noted this in his discussion of the ability and willingness of the parents to provide the necessaries of life. The mother submitted that this was not the usual state of her home, but it figured prominently and was given grossly disproportionate treatment, compared to its true value, by the trial judge.
64In fact, the trial judge reviewed the evidence and accepted that the mother’s home was not regularly in an inappropriate condition. He did express concern that she was “capable of allowing the condition of her home to deteriorate to an unacceptable level, especially when Emily is living with her”.
65Overall, I see the trial judge’s treatment of this issue, too, as being balanced and fair.
66I reject the fourth ground of appeal also.
#5 – THE SUPPORT ORDER WAS WRONG IN LAW
67Paragraph 14 of the trial judge’s final order requires the mother to pay the table amount of child support, being $133.55 per month. In addition, paragraph 15 of the order requires her to pay a pro-rata share amounting to 17 percent of the child’s special or extraordinary expenses, based on the parties’ incomes, which are set out.
68The mother submits that she arguably has the child 40 percent of the time and the trial judge failed to take into account s. 9 of the Child Support Guidelines which provides that:
Where a parent or spouse exercises a right of access to, or has physical custody of, a child for not less than 40 percent of the time over the course of a year, the amount of the order for the support of a child must be determined by taking into account
a) the amounts set out in the applicable tables for each of the parents or spouses; b) the increased costs of shared custody arrangements; and c) the condition, means, needs and other circumstances of each parent or spouse and of any child for whom support is sought.
69The court was referred to a dated case which discussed without explaining how to calculate the time spent with a parent.
70The mother submitted that seven of fourteen days are spent with her. The father submitted that the 40 percent threshold was not met. Neither provided a detailed calculation.
71There is no indication that this issue was raised at trial.
72I am not persuaded that the trial judge erred by failing to take s. 9 into account.
73The mother also submitted that the trial judge abdicated his responsibility by failing to itemize the special or extraordinary expenses. S. 13(e) of the Child Support Guidelines states:
An order for the support of a child must include … (e) the particulars of any expense described in subsection 7(1), the child to whom the expense relates and the amount of the expense or, where that amount cannot be determined, the proportion to be paid in relation to the expense …
74Given that it provides for specifying a proportion, I do not find that the trial judge erred.
75Therefore, this ground of appeal is dismissed also.
76It follows that the appeal overall is dismissed.
COSTS
77If the parties cannot agree as to costs of the appeal, the father shall have 20 days to serve and file his submissions as to costs. The mother shall have 10 days after that to serve and file her submissions as to costs. Submissions shall be limited to three double-spaced pages each, plus bills of costs.
Justice James A.S. Wilcox
Released: February 12, 2015