Court File and Parties

COURT FILE NO.: FS-14-19842 DATE: 20160420 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: AMBER CRYSTAL TIVERON, Applicant, Respondent AND: ERIC RICHARD COLLINS, Respondent, Appellant

BEFORE: J. Wilson, J.

COUNSEL: Katherine Robinson, for the Respondent Appellant, In Person

HEARD: April 11, 2016

Endorsement

[1] After a five day hearing, Justice R. Zisman, in an order dated October 29, 2014, granted final custody of the three children to Amber Crystal Tiveron (the Respondent) with access to Eric Collins (the Appellant). The Appellant appeals two aspects of the decision: challenging the restraining order and the requirement that he obtain leave of Justice Zisman prior to initiating any further family law proceedings.

[2] He argues that the trial judge misapprehended the evidence, was biased, and that she failed to apply the correct test in law for when a restraining order may be made.

Motion for Fresh Evidence

[3] The Respondent brings a motion to introduce fresh evidence of the communications between the parties after the trial.

[4] Counsel argues that this evidence could not have been adduced before the trial, it is relevant to the questions raised in this appeal, and it is credible documentary evidence. Hence, she argues that the test for the admission of fresh evidence has been met: see Catholic Children’s Aid Society of Metropolitan Toronto v. M. (C.), [1994] 2 S.C.R. 165, at p. 190. It appears that the element of being “potentially decisive to a best interest determination” of the children has not been met. However, as noted in M. (C.) at p. 188, the rules for admission of fresh evidence when considering children are not as rigid as in other contexts.

[5] The parties agreed that the fresh evidence of the emails exchanged between the parties for the last year and a half is a “continuation of the same problem” of communication as was displayed in the evidence before the trial judge. Based upon this admission by the Appellant, I can take into account that the type of problematic communications continued after the trial, but I do not need to consider the fresh evidence in any further detail.

Jurisdiction of this Court

[6] Section 40(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43 provides that appeals from orders of the Ontario Court of Justice are made to the Superior Court of Justice, unless otherwise specified: see Doherty-Mulder v. Mrowietz, [2003] O.J. No. 3388 (S.C.); Ridley v. DeRose, 2015 ONSC 5635. These appeals are then governed by Rule 38(4) of the Family Law Rules, R.R.O. 1990, O. Reg. 114/99: see Patrick v. Taylor, 2013 ONSC 2971; Buhendwa v. Girard, 2012 ONSC 3452.

Standard of Review

[7] The Supreme Court of Canada addressed the standards of review of an appeal from a judge’s decision in Housen v. Nikolaisen (2002), 2002 SCC 33, [2002] 2 S.C.R. 235. In summary:

On a pure question of law, the basic rule with respect to the review of a trial judge's findings is that an appellate court is free to replace the opinion of the trial judge with its own. Thus the standard of review on a question of law is that of correctness. (at para. 8)

The standard of review for findings of fact is that such findings are not to be reversed unless it can be established that the trial judge made a "palpable and overriding error": Stein v. The Ship "Kathy K", [1976] 2 S.C.R. 802. (at para. 10)

Where the trier of fact has considered all the evidence that the law requires him or her to consider and still comes to the wrong conclusion, then this amounts to an error of mixed law and fact and is subject to a more stringent standard of review [than for findings of fact]. (at para. 28)

[8] The challenges raised by the Appellant are in relation to findings of fact and credibility, and, hence, this Court will only intervene if there is a palpable and overriding error by the trial judge in the assessment of the evidence.

[9] The question of bias is a question of procedural fairness. It is generally accepted that no standard of review analysis applies to questions of procedural fairness. Rather, the Court will determine whether or not procedural fairness has been breached, and will quash the decision if it has: see, e.g., Moreau-Bérubé v. New Brunswick (Judicial Council), 2002 SCC 11, [2002] 1 S.C.R. 249, at paras. 74-75; London (City) v. Ayerswood Development Corp. (2002), 167 O.A.C. 120 (C.A.) at para. 10.

The Allegation of Bias

[10] The Appellant argued that the trial judge exhibited bias in how she assessed the evidence, and in her entire approach to the file and the issues. He argues that the Respondent was not credible and that her evidence was conflicting. He argues that the difficulties in the evidence of the Respondent were not adequately taken into account by the trial judge, and hence the judge was biased.

[11] In careful, fulsome reasons, the trial judge outlined her findings of fact and credibility. These findings are amply supported by the evidence.

[12] The trial judge is not required to review every detail in the evidence in her reasons. This is clearly a high conflict situation. The trial judge at times was required to intervene to ensure that the trial proceeded in an orderly fashion as the Appellant was self represented conducting his own defence. Her interventions were appropriate and did not exhibit bias. That the trial judge did not accept the version of the facts and arguments suggested by the Appellant is not evidence of bias.

[13] There is no merit to the allegation that the trial judge approached the trial in a biased manner.

The Restraining Order

[14] The Appellant argued that the trial judge failed to adequately analyze the evidence as there was no ongoing threat of physical danger to the Respondent or the children. Therefore, he argued that a restraining order was not appropriate “in law”. The Appellant made submissions that there was no credible evidence that he had threatened to kill the Respondent, and that it was in fact the Respondent who allegedly threatened the Appellant with a knife during an altercation.

[15] The trial judge summarized the need for the continuation of the restraining order at paras. 168, 171, 172 and 174 of her reasons. The threat of physical violence had subsided, but it was necessary to curtail the ongoing problem of the Appellant’s bullying, threatening and intimidating communications with the Respondent:

Although much of the case law is focused on concerns about physical safety, the provisions are not limited to only fear of physical safety and can include fear of emotional and verbal abuse and intimidation.

Since the change in the terms of the initial restraining order, the father has complied with the terms and there has been no further police involvement. After some initial problems, the father has used the communication book appropriately.

The mother agreed that she no longer feared for her physical safety but she submits that it is because of the threat and knowledge of the existence of the restraining order that the father has controlled his anger and threatening behaviours. The mother testified that she is worried that without a restraining order the father will revert to his past ways and that she is intimidated by his behavior and by his physical presence. Many times while the father was cross-examining the mother her fear and anxiety were palpable.

More importantly, I am not convinced that the father would control his behavior and the means of communicating with the mother if the restraining order was not in place. His long standing history of bullying, intimidating and threatening the mother is still too recent and too concerning to trust that he has changed. I also am concerned that the father has no insight into the impact of his conduct and his messages to the mother and without such insight I find that he is unlikely to be able to self-regulate either his conduct or method of communicating. I find that the restraining order has been effective in curtailing the father’s previous harassing and threatening behaviours.

[16] The findings of the trial judge with respect to the continued need for a restraining order take into account the diminished fear of physical harm, but confirm that there was an ongoing and genuine fear of psychological harm due to the Appellant’s continued behavior.

[17] Genuine fear of psychological harm justifies a restraining order: see the decision of Justice Kiteley in Lawrence v. Bassett, 2015 ONSC 3707, at para. 18. The Appellant’s suggestion that there must be a threat of physical harm to the Respondent or the children to justify a restraining order is not correct.

[18] The restraining order prevents communication with the Respondent and the children on his non-access days, but does not limit the Appellant’s access to shared activities, access exchanges or any medical emergency. The restraining order does apply to telephone, Skype and email access to the children on the Appellant’s non-access days.

[19] The conclusions of the trial judge that there is a need for a continued restraining order are supported by the evidence, and do not interfere with the Appellant’s legitimate access to the children.

[20] The trial judge also limited the communications between the parties to the access book where appropriate information about the children can be shared, and to a limit of one email per day. These limits are entirely appropriate given the history.

[21] She made this order as the Appellant’s history of communication with the Respondent has been to “berate, harass, insult, demean and degrade” the Respondent (para. 95 of Her Honour’s reasons). The content of the communications confirms the need to control the nature and the frequency of the communications between the parties, in the best interests of the children.

[22] I note that the Appellant has the right to medical, health care, school and camp information in accordance with the consent terms agreed to by the parties that form part of the judgment.

[23] The trial judge appropriately considered the evidence in this high conflict case, and imposed terms to attempt to reduce the negative communications between the parties in the best interests of the children. There is no merit to this ground of appeal.

Requiring Leave to Proceed with Further Proceedings

[24] The trial judge remained seized on this case, and required the Appellant to obtain leave from her before he was entitled to initiate any proceeding affecting the children.

[25] The trial judge expressed the hope that the trial would end the conflict between the parties, and says: “In view of the high conflict between the parties I find that it is important that the father in particular appreciate that the court has considered all of the evidence and his submissions in coming to this decision and in the hope that this trial will end the need for further litigation between the parties.” (para. 146)

[26] Due to the history, and in an attempt to control needless further proceedings, the trial judge concluded that the father should be required to seek prior court approval before her before initiating any proceeding. This discretionary decision was entirely appropriate based upon the evidence of conflict: see Israel v. Wright, 2012 CarswellOnt 14750, at paras. 32-33. There is no merit to this ground of appeal.

[27] For these reasons, the appeal is dismissed.

Costs

[28] Counsel for the Respondent is doing this file pro bono. There is authority to order costs in favour of successful pro bono counsel as confirmed in 1465778 Ontario Inc. et al. v. 1222077 Ontario Ltd. et al. (2006), 82 O.R. (3d) 757 (C.A.).

[29] She seeks costs in this appeal in the amount of $8000.00 inclusive of HST and disbursements. The Appellant challenges that counsel spent 40 hours preparing for this narrow appeal. He suggests an appropriate quantum is $2000.00.

[30] Counsel is entitled to some reasonable recovery of her costs for this appeal. I fix the costs in the amount of $3500.00 inclusive of HST and disbursements.

J. Wilson J. Date: April 20, 2016