Morwald-Benevides v. Benevides, 2017 ONSC 539

CITATION: Morwald-Benevides v. Benevides, 2017 ONSC 539

COURT FILE NO.: FS-16-010-00AP

DATE: 20170123

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Melinda Morwald-Benevides, Appellant (Responding Party to Motion)

AND:

Jeffrey Mark Benevides, Respondent (Moving Party on Motion)

BEFORE: E.J. Koke

COUNSEL: Leslie Burke, for the Appellant, Melinda Morwald-Benevides

Bonnie C. Oldham, for the Respondent, Jeffrey Mark Benevides

HEARD: January 12, 2017

Endorsement

Motion For Security for costs

INTRODUCTION

[1] This is a motion by the respondent husband for an order under R. 38(26) of the Family Law Rules, O. Reg. 114/99 for security for costs of an appeal by the appellant wife from the decision of Keast J. of the Ontario Court of Justice. The moving party (“Mr. Benevides”) submits that there are good reasons to believe the appeal is a waste of time, a nuisance or an abuse of the court process and that the appellant (“Ms. Morwald-Benevides”) has insufficient assets in Ontario to pay the costs of the appeal.

[2] For the reasons that follow, I agree with the moving party and order that Ms. Benevides post security for costs in the amount of $25,000.

BACKGROUND

A. History of the Proceedings

[3] The factual background is extensively set out in the 188 paragraph judgment of Keast J. which was released on January 29, 2016.

[4] The parties met and lived together in Bermuda. Mr. Benevides is a citizen of Bermuda and was born and raised there. Ms. Morwald-Benevides is a citizen of Canada and moved to Bermuda shortly before the parties were married on October 9, 1999.

[5] There are three children of the marriage; Tristan Morwald-Benevides born on January 22, 2003 (age 14); Kaleb Christian Morwald-Benevides born on September 8, 2004 (age 12); and Breyanka Ashoka Morwald-Benevides born on August 10, 2009 (age 7).

[6] During the marriage, the family split their time between Canada and Bermuda. The parties resided in Bermuda during the school year, and Ms. Morwald-Benevides and the children visited Ms. Morwald-Benevides’ family in Parry Sound during the summer.

[7] The children did not return to Bermuda in the fall of 2011 for school. Rather, Ms. Morwald-Benevides enrolled the children in school in Humphrey, Ontario and insisted that they remain in Ontario.

[8] In May, 2012 Ms. Morwald-Benevides commenced an application for sole custody, supervised access and an order prohibiting Mr. Benevides from taking the children out of the Province of Ontario.

[9] Ms. Morwald-Benevides has been the children’s primary caregiver since the children were born. The children currently reside with her and her extended family in Parry Sound, Ontario, while Mr. Benevides continues to reside in Bermuda.

[10] The record is clear that from early on in the proceedings Mr. Benevides has rarely been able to exercise access with his children without engaging in litigation. More specifically, the parties were in court on the issue of access 11 times. The core issue throughout the 23 day trial was access. The trial commenced on April 11, 2014 and concluded more than 14 months later in late June, 2015. During the course of the trial a number of oral motions for access were required to ensure that there was compliance with the existing order for unsupervised access.

[11] The record also confirms that each time the issue of access was before the court, Mr. Benevides was granted access with the children. Only the first 2 visits were supervised, with the consent of Mr. Benevides. By the conclusion of the trial, Mr. Benevides had had a total of 12 visits with the children since 2011, spanning from 3 – 10 days in duration. Following the trial he has had 2 additional unsupervised access visits.

[12] Although the trial involved issues of support, custody and access of children the appeal pertains only to the issues of custody and access.

B. The Decision to appoint Amici Curiae

[13] The trial judge reported that the proceeding was highly fractious and involved complex legal and jurisdictional issues. The father is a resident and citizen of Bermuda. One issue dealt with access of the father in Bermuda, with the mother taking the position that the children would be abducted if the father was permitted visits in that country. The mother filed materials to indicate that courts in Bermuda have a poor compliance with the Hague Convention. The mother also alleged domestic violence and the father alleged parental alienation.

[14] Child support issues were also complicated and included issues pertaining to gross-up because of the different tax treatment of the father’s income in Bermuda and the high cost of the father exercising access in Canada.

[15] There were also logistical issues. The mother alleged that she was fearful of the father and did not want to be in the same courtroom with him or give evidence with him in the courtroom. The court was asked to explore the possibility of integrating the courts in Bermuda with the Ontario Court of Justice in Parry Sound, with a view to strengthening compliance with the Hague Convention.

[16] Prior to trial the mother had retained 5 different lawyers. The trial judge reported that before the trial even commenced a pattern had developed by the mother of seeking to delay the proceedings and he concluded that the mother did not want to proceed to trial.

[17] The trial opened with the mother self-represented. According to the trial judge, on the first morning of trial the mother’s behavior bordered on the hysterical. She later collapsed in the courtroom and was taken to the hospital by ambulance.

[18] On his own initiative the trial judge decided to appoint an amicus curiae to assist the mother during the trial. His reasons for doing so are summarized as follows at paragraph 70 - 74 of his September 29, 2015 Reasons for appointing the amici:

70 I needed assistance in a significant way. This case was not remotely close to the garden variety case as mentioned by the Supreme Court of Canada, wherein an amicus order should not be routinely made. Because of the sharp polarization and conflict of the expected evidence, I wanted amicus to play an adversarial role to properly test the evidence, so I could make findings of facts and credibility -- which would then allow me to effectively adjudicate on the best interest test.

71 Aside from the complexities of findings of facts and credibility, this case had complex legal issues. As a matter of law, what is required to terminate access to a parent or to direct permanent supervision of access? What are the legal requirements for parental alienation? What is the law of Bermuda as such relates to an application in the Bermuda courts under the Hague Convention? What are the legal principles for grossing up child support because of different tax treatments of income in different jurisdictions? What are the legal principles for the deductions from child support of travel expenses to facilitate access? The mother would not have been able to assist me, even if she was emotionally stable.

72 I knew at the time I made the amicus order that it was likely I would be ordering a psychological assessment. The mother was strongly against this and would not appreciate the legal principles in settling the terms of an order or the requirements in the order by a psychologist.

73 With the father represented and the mother now unrepresented, there would be a significant imbalance wherein the father's evidence would not be properly tested, whereas the mother's would; leaving me in a deficit position on the material facts and legal issues.

74 I am satisfied that the high threshold required to make an amicus curiae order has been met. This case constitutes exceptional circumstances.

[19] Ms. Morwald Benevides did not oppose the order of Justice Keast appointing amicus curiae. Although the Attorney General brought an unsuccessful motion to set aside the amicus order the mother did not join this motion; nor did she join in on the appeal of that order to the Superior Court.

[20] The trial judge later appointed a second amicus to act on behalf of the father. This was in response to a motion by Mr. Benevides’ counsel to be removed from the record. Keast J.’s reasons for appointing the father’s lawyer to act as amicus curiae are set out as follows in paragraphs 81–87 of his reasons:

81 It appeared that she had a sound basis for being removed from the record, given the substantial increase in the expected trial time, which she could not have reasonably expected to know when discussing fee arrangements with her client.

82 Letting her off the record would greatly destabilize the trial especially with her client being a foreign resident. It was doubtful that he could carry on litigation of this magnitude from a foreign country. Given what I learned about his finances, it was doubtful that he would be able to retain another counsel.

83 Not letting Ms. Oldham off the record would have forced her to proceed on a pro bono basis. Conducting a matter of this magnitude on a pro bono basis would not have been fair and would have added another layer of tension to an already difficult trial. Given the role Ms. Oldham plays in the local administration of justice, I was not prepared to do this.

84 Adjourning to ascertain whether the father qualified for legal aid was not an option. I was confident he would not qualify. His income was too high, he owned property in Bermuda and he had no legal status in Canada.

85 The decision to appoint amicus for the father was influenced by the reasons to appoint amicus for the mother. The two are connected. I could not consider the father's situation independent of the mother. Without counsel for the father, there would have been an imbalance in testing the evidence in the way I required. A lopsided situation, whether it is from the mother's perspective or the father's, would not have been of assistance to me. Although the father was being benefited, there is a nexus between that benefit and the assistance I required.

86 So I focused on my needs, already articulated which have not changed. Though the father did not have the emotional volatility of the mother, he could not have self-represented on a complex case such as this. I needed the adversarial system in order to properly test the evidence, not only from the perspective of the mother, but also from the perspective of the father. Further I needed a counsel for the father to deal with the courts in Bermuda.

87 The decision to appoint amicus for the father was for the purpose of stabilizing the proceeding, preventing delay and ensuring a fair trial process.

THE DECISION OF THE TRIAL JUDGE

[21] The trial judge’s decision can be summarized as follows:

a) The parties were granted joint custody of the three children. The responsibilities of the father as a custodial parent were distinct from those of the mother; they were limited and were specifically defined;

b) The children’s primary residence would be with the mother in Parry Sound, Ontario;

c) The mother would have day to day care and control of the children;

d) The father was provided with exclusive authority to arrange for psycho-educational testing of the children or any other testing as recommended by the children’s school board, with the copy of any testing results to be provided to both the mother and father. Ms. Morwald-Benevides was to cooperate in making the children available for any such testing;

e) The parts of the psychological assessment of Dr. Patricia Ross, as such might pertain to the children, were to be served on the principal of the Humphrey School;

f) Mr. Benevides was given the exclusive authority to investigate whether the child Kaleb has Autism Spectrum Disorder or such other similar condition; Ms. Morwald-Benevides was to cooperate with any recommendations arising out of such assessment;

g) If the mother was to make any future allegations of assaultive behavior by the father to any of the children, then the psychological assessment of Dr. Ross and a copy of Justice Keast’s trial decision was to be given to the police investigators, for consideration in the investigative process;

h) Mr. Benevides was given liberal, generous and unsupervised access to the children in Canada; no restrictions, terms or conditions on his access in Canada were imposed, except such access at all times was to be exercised in the province of Ontario unless otherwise consented to by Ms. Morwald-Benevides or by order of the court;

i) Mr. Benevides could have phone access with his children twice a week, at specified times; Ms. Morwald-Benevides was to co-operate in facilitating Skype communication between the children and the father.

j) The court would establish a summary, simple and efficient process to allow Mr. Benevides access to the court in relation to any further blocks of access or any issue arising with the decision of Justice Keast. Such process could include electronic communication with the Ontario Court of Justice or any audio/video feed between Bermuda and the Ontario Court of Justice;

k) In principle, the court approved of access between the respondent father and the children in the countries of Bermuda, United States and United Kingdom. When the father intended to exercise access in the county of Bermuda, he was to provide notice to the mother in the usual course and advise the trial coordinator. A date would then be set for a Rule 1 focus hearing at which time directions for orders could be issued in relation to all aspects of travelling to and staying in Bermuda;

l) Ms. Morwald-Benevides was not to make any disclosure of, or complaints of historic domestic violence, verbal abuse, emotional abuse, intimidation, or of threats by the respondent father towards her; specifically, she was not to discuss with the children any of the contents of his decision.

m) Justice Keast would remain seized of the implementation and enforcement of his order and of any future proceedings to vary his order, except in cases of emergency or unavailability.

n) No further proceedings were to be commenced by the applicant mother without prior leave of the court;

[22] Justice Keast’s concluded his decision with the following paragraph under the heading “Child Protection”:

[188] I am of the view there is a strong argument to be made that the mother’s actions and inactions constitute these children being found to be children in need of protection under section 37(2) of the Child and Family Services Act, R.S.O. 1990 c.C.11. I am directing amicus counsel for the respondent father to provide a copy of this decision and the assessment of Dr. Patricia Ross, to the executive director of the local child protection agency.

THE APPEAL BY MS. MORWALD-BENEVIDES

[23] In the Notice of Appeal, the appellant requested an order that Justice Keast’s entire decision be set aside and a new trial granted.

[24] In support of her position the appellant argues that:

a) The conduct of the trial judge during the trial gave rise to a reasonable apprehension of bias or the appearance thereof;

b) The trial judge misapprehended material facts, mischaracterized the evidence and misstated the position of the appellant on several issues;

c) The trial judge failed to consider relevant evidence;

d) The trial judge breached the principles of natural justice and interfered with the appellant’s right to procedural fairness and;

e) The trial judge exceeded his jurisdiction.

[25] The notice of appeal contains a number of specific complaints which form the basis for the grounds of the appellant’s appeal. I address these below.

ISSUES

[26] Rule 38(26) gives rise to the following legal issues:

a) Is there a good reason to believe that the appeal is a waste of time, a nuisance, or an abuse of process; and

b) Does the applicant have insufficient assets in Ontario to pay the costs of the appeal;

c) Are there other good reasons why security for costs should be ordered?

DISCUSSION

A. First Issue: Is there a good reason to believe that the appeal is a waste of time, a nuisance, or an abuse of process?

a) The Test

[27] Rule 38(26) of the Family Law Rules directs the court to consider whether there is good reason to believe that the appeal is a waste of time, a nuisance, or an abuse of the courts process. Rule 61.06 of the Rules of Civil Procedure sets out a very similar threshold focusing on whether an appeal is frivolous and vexatious.

[28] Citing the Court of Appeal in Szpakowsky v. Kramer, 2012 ONCA 77 Justice McDermot in Baker v Rego, 2013 ONSC 3309 notes that the Court of Appeal appears to have softened the former ‘stringent test’ such that “the motions judge need not determine that the appeal is devoid of merit; he or she need only to reach a tentative conclusion that the appeal has those characteristics. Bona fides is not mentioned. The court stated at para 19 and 20 of the Baker v. Rego decision:

19. It is not necessary for these purposes that we be satisfied the appeal is in fact without merit and frivolous, vexatious or otherwise an abuse of the process. It is sufficient if it appears to us that there is good reason to believe that it has those characteristics. As this Court noted in Schmidt v. Toronto-Dominion Bank 1995 ONCA 3502:

The words “good reason to believe” qualify the words frivolous and vexatious” and indicate a finding short of an actual determination that the appeal is frivolous and vexatious. A judge hearing a motion for security for costs may reach the tentative conclusion that an appeal appears to be so devoid of merit as to give “good reason to believe that the appeal is frivolous and vexatious” without being satisfied that the appeal is actually devoid of merit.

20. In ordering security for costs, the court states that “we have grave reservations about the merits of the appeal, which appears to us to have little prospect of success.”

[29] The Court of Appeal in Schmidt v. Toronto-Dominion, supra set out the factors relevant to the assessment of whether there is good reason to believe that an appeal is frivolous and vexatious.

The apparent merits of the appeal, the presence or absence of an oblique motive for the launching of the appeal, and the appellant’s conduct in the prosecution of the appeal will be relevant to a determination of whether there appears to be good reason to believe that the appeal is frivolous and vexatious. No doubt, in specific cases, other factors will also be relevant…see p. 5.

b) Findings of Fact and the Exercise of Discretion in Custody and Access Appeals

[30] The appeal in this case is primarily about access and custody. In my view, the appeal does not raise any arguable error in law, but rather challenges findings of fact and fact and law and the exercise of discretion by the trial judge in refusing to grant an adjournment and in appointing the amici.

[31] As noted by the appeal court in Baker v. Rego, supra, a trial judge is given considerable discretion by appellate courts when exercising his or her discretion in dealing with issues of custody of access. At par 14 of the decision the court stated:

14. Moreover, there is a substantial body of case law that indicates that in custody matters, the trial judge is to be accorded a considerable degree of deference by an appellate court. That is apparent from the judgment of Bastarache J. in Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014 (S.C.C.) where he states, at paragraph 12 of the decision that a "Court of Appeal is not in a position to determine what it considers to be the correct conclusions from the evidence. That is the role of the trial judge." He later notes at paragraph 13 that "[c]ustody and access decisions are inherently exercises in discretion" and as such a trial judge is accorded "significant deference" by an appellate court.

[32] The Court of Appeal in Henderson v. Wright, 2016 ONCA 89 at para 16 noted that;

This appeal does not raise any arguable error in law, and challenges findings of fact and credibility for which the trial judge set out detailed, facially sound reasons. This court has held that such appeals appear to have no merit: Schimidt v. Toronto Dominion Bank, 1995 ONCA 3502.

[33] At para. 19 of the Henderson v. Wright decision the court stated further: “As I said, the trial judge gave detailed and apparently sound reasons for his findings. In such cases, there is almost no possibility of successfully overturning the result”.

[34] In the recent decision of the Ontario Court of appeal in Froehlich-Fivey v. Fivey, 2016 ONCA 833 Lauwers J.A held at par. 12 of his decision that if the grounds of an appeal do not raise any arguable error in law, and only challenge the trial judge’s findings of fact and credibility that are sound on their face, an appellant must ultimately demonstrate that the trial judge made a number of palpable and overriding errors in his findings in order to succeed [emphasis added].

[35] In Van de Perre v. Edwards, 2001 SCC 60 the Supreme Court addressed the role to be played by the appellate court in appeals involving custody and access in the following words at para. 13:

13. As I have stated, the Court of Appeal was incorrect to imply that Hickey, supra, and the narrow scope of appellate review it advocates are not applicable to custodial determinations where the best interests of the child come into play. Its reasoning cannot be accepted. First, finality is not merely a social interest; rather, it is particularly important for the parties and children involved in custodial disputes. A child should not be unsure of his or her home for four years, as in this case. Finality is a significant consideration in child custody cases, maybe more so than in support cases, and reinforces deference to the trial judges’ decision. Second, an appellate court may only intervene in the decision of a trial judge if he or she erred in law or made a material error in the appreciation of the facts. Custody and access decisions are inherently exercises in discretion. Case-by-case consideration of the unique circumstances of each child is the hallmark of the process. This discretion vested in the trial judge enables a balanced evaluation of the best interests of the child and permits courts to respond to the spectrum of factors which can both positively and negatively affect a child. [Emphasis added]

[36] Against this background I turn now to a review of some of the specific complaints raised by the appellant in this appeal.

c) Grounds of the Appeal

i) Bias by the Trial Judge

[37] The first ground of appeal is that the trial judge showed bias against the appellant. The appellant argues that the trial judge applied different standards of scrutiny in assessing the credibility of the appellant and the respondent, justifying and minimizing the respondent’s admissions of abusive conduct while dismissing and trivializing the appellant’s evidence of the same conduct. This disparity in the standards applied to the parties’ evidence led the trial judge to make palpable and overriding errors of fact.

[38] Alleging bias against a judge is a very serious matter and it needs to be substantiated (see Froehlich-Fivey v. Fivey supra at par. 14). In this case, I find that the appellant has not done so. I am unable to discern in the decision any hint of bias. It is my view that throughout, the trial judge exercised his discretion in keeping with his understanding of the facts as they unfolded before him.

[39] The reasons cited by the trial for ordering the involvement of an amicus demonstrate his commitment to ensuring that the appellant’s position would be clearly articulated and presented during the trial. As we have seen, at paragraph 73 of his September 29, 2015 decision denying the Attorney General’s motion to set aside the amicus curiae orders he stated:

73. With the father represented and the mother now unrepresented, there would be a significant imbalance wherein the father's evidence would not be properly tested, whereas the mother's would; leaving me in a deficit position on the material facts and legal issues.

[40] The appellant argues that Justice Keast’s decision to grant joint custody in circumstances where Mr. Benevides did not request custody of the children is a reflection of bias on his part. The judgment clearly shows that Justice Keast weighed the factors set out in section 24(2) of the Children’s Law Reform Act, R.S.O.1990, c. C.12 and after doing so he decided to grant joint custody on the basis of what he believed were the best interests of the children. He carefully circumscribes the roles to be assumed by each parent, and limits the custodial role of the father to ensure only that certain specific need of the children would be met. His order was not an order for co-parenting. He explains his decision at paragraphs 166 through 174 as follows:

Custody

166. Jeffery is not seeking custody of these children. Despite his significant concerns about the conduct of Melinda, he knows it would be unrealistic to pursue custody of the children and return them to Bermuda. He is well aware of Melinda’s deficits and is content Melinda has the overall day-to-day control over the children, and to continue to reside on their grandmother’s property.

167. When I weigh the section 24(2) criteria, the advantage in a custody dispute would be in favour of Jeffery. There are two significant deficits of Melinda that would be against granting a sole custody order to her. The demonization of the father and the massive neglect to the children in the education environment would be more than sufficient to tip custody in favour of Jeffery. He has kept remarkably calm in face of the repetitive attacks on him. He is able to see through all of this and understand the positives of the mother. He has no animus towards her. He even understands the important role to be played by the maternal grandmother. Though he clearly has animus towards her, he can set it aside and understand the role she plays in the lives of the children. Jeffery would move immediately to remedy the autism issue with Kaleb and the education deficits with Tristen and Kaleb.

168. If Jeffery had been a Canadian citizen, residing and employed in the province of Ontario, I would have granted him custody.

169. Though the issue of the placement of the children with Melinda is not on the table, I still have an overriding duty to make decisions in relation to the best interests of these children, despite the legal positions taken at trial.

170. Accordingly, I will not be granting Melinda a sole custody order. I am granting a joint custody order to Melinda and Jeffery with primary residence to be with Melinda. In most cases, a court should not order joint custody in circumstances of high conflict between parents, however, there are rare cases based on exceptional circumstances. This is one of them. Within a joint custody structure I will be carving out certain areas of exclusive responsibility for Jeffery. In these areas Melinda’s lack of consent will not be a barrier to Jeffery to act unilaterally in the best interests of the children.

171. The children will reside with Melinda. Overall she will have the day-to-day care and control of the children. She will no longer have control, nor can she impede or veto a full investigation of Kaleb’s apparent Autistic Spectrum Disorder. Jeffery will have complete control over any such investigation. Melinda is mandated to transport Kaleb to any such professional if Jeffery is unable to attend in Ontario.

172. Jeffery will also have exclusive control over all testing for these children in their education environment. Melinda cannot impede or veto the testing of the children. She is mandated to transport the children and to co-operate in the process to complete the testing.

173. If Melinda fails to co-operate I will consider further orders and directions to ensure compliance with these provisions.

174. Another reason for the joint custody order is to enhance Jeffery’s leverage with access, because I anticipate chronic access problems.

[41] Also, in my view there is no merit to the argument that the trial judge prejudged the parenting issues, as demonstrated in his reasons for judgment. In fact, the trial judge made a number of positive findings about the mother’s ability to parent. He does so in a balanced and objective manner. At par. 39 of his decision he states:

39. When Jeffery considers Melinda’s parenting from an overall perspective he feels she is bringing up the children reasonably well. He finds the children to be kind-hearted, polite and can be quite well-behaved at times. He does feel she is strongly focused on meeting their needs but he is unsure whether this is a strength or a weakness. This kind of discernment by Jeffery impresses me. She is not indifferent to her children. She is so highly focused though that it could be a detriment to her parenting. She has relentlessly researched the issues in the education environment so she puts the time of due diligence in but the result is a dogmatic opinion that is misguided. That is how I see her. Jeffery appears to see the same thing.

[42] The appellant also argues that the trial judge applied different standards of scrutiny in assessing the credibility of the parties, justifying and minimizing the father’s admissions of abusive conduct while dismissing and trivializing the mother’s evidence as to the same conduct. According to the appellant, this disparity in the standards applied to the parties’ evidence led to the trial judge making palpable and overriding errors of fact.

[43] I do not detect any difference in the standards applied by the judge in assessing the credibility and conduct of the parties. Throughout, he applies a balanced approach. Clearly, there are areas where he is critical of the mother but he provides concrete examples of why he is critical. For instance, at paragraph 9 of his decision he sets out 26 examples of why he has come to the conclusion that overall, Ms. Morwald-Benevides and her mother Sylvia are not credible witnesses.

[44] With respect to Mr. Benevides, he recognizes that Mr. Benevides’ conduct during the marriage was also open to criticism. In assessing his conduct however the trial judge found that unlike his wife, Mr. Benevides was open about his failures and had gained considerable insight into his weaknesses and was motivated to make changes. For example at par. 26 of his decision he states:

26. Jeffery was quite open about his own sins. He did not project blame for their marital conflict onto Melinda in the way Melinda has blamed him. He has a more balanced understanding of what went wrong in the relationship. He said he was not a perfect husband. He felt they brought the worse out in each other. He is able to look back and see matters differently at this time. He felt she needed to escape him because he was abusive. In qualifying this he points out he was mentally abusive.

[45] He points out another example of Mr. Benevides openness and willingness to make changes at paragraph 34 of his decision where he states:

34. Jeffery took an interesting approach to this trial. He made it clear to Dr. Ross, which was confirmed in my mind in the trial, he did not want to say anything ‘bad’ about Melinda. He said he had much information about her, presumably of a negative nature, but that he did not want to share it with the court. He expressed a realization that damaging Melinda’s reputation in court and making derogatory comments about her could negatively impact the children in the future. He simply wanted to move on and develop a cordial relationship in order to co-parent and play a significant role in the lives of the children. He commented he had loved her once and he will always love her as the mother of their children.

[46] In conclusion, I see no evidence whatsoever of bias. The conclusions reached by the trial judge on the issues of parenting and credibility are grounded on the evidence as he found it. There are no palpable and overriding errors of fact or errors in his findings which point to bias, such as failing to address a material issue, failing to take into account relevant evidence, or taking into account irrelevant evidence.

[47] Accordingly, and in my view there is good reason to believe that an appeal based on this ground is a waste of time, a nuisance, and when I consider the immense judicial resources allocated to these issues to date it would also constitute an abuse of process.

ii) The Trial Judge misapprehended material facts, mischaracterized the evidence and misstated the position of the appellant on several issues:

[48] The appellant submits that the trial judge erred in failing to give appropriate weight to the evidence in support of the appellant’s version of events. She focuses in particular on the Report of the Office of the Children’s Lawyer and alleges that the trial judge failed to give due weight to this report. She also submits that the trial judge erred by appointing Dr. Patricia Ross to undertake an assessment of the parents and children mid-trial, and that Dr. Ross drew conclusions and made recommendations which were unsupported by the evidence.

[49] In my view, the decision of the trial judge indicates that he carefully considered the contents of the report prepared by the Office of the Children’s lawyer. The trial judge voices concerns that this report was prepared without the involvement or input of Mr. Benevides. He notes that the report was initially presented to Perron J. in relation to an access hearing and that Perron J. also voiced considerable misgivings about the report and concluded that it was unbalanced. In fact, it was the perceived weaknesses and unreliability of this report and the limited qualifications of the person who prepared it which prompted Keast J. to appoint Dr. Ross to undertake her assessment. Justice Keast made the following comments in relation to the OCL report in paragraphs 111 through 128 of his decision:

8:4 The Ontario Children’s Lawyers Report

[111] The OCL report was completed in September 2013. There were two essential findings. Firstly, the home in Bermuda was an abusive environment toward Melinda and the children. The primary if not exclusive cause of the abuse to the family was Jeffery. Secondly, supervised access was recommended.

[112] The first judicial consideration of the report was by Perron J., on January 21, 2014. Jeffery was arriving on that date for a week of expected access. Melinda brought an emergency motion to prevent the access from proceeding unless it was supervised. The court reviewed the OCL report. Justice Perron expressed concern as to how the investigation was conducted. He makes it clear, aspects of the investigation were inappropriate. He leaves the strong impression the investigation was not balanced.

[113] The court was critical of Melinda in her failure to share information with Jeffery, which made it difficult if not impossible for Jeffery to properly deal with his children on visits. Jeffery had not seen the children in months. Without proper information as to their functioning over that period of time he is in a difficult position to put behaviours of the children into a proper context. The court is clear Melinda is at fault for this.

[114] Justice Perron was critical of Melinda and makes it clear she has been discussing the proceedings with the children, despite a specific order to the contrary.

[114] Justice Perron did not feel the examples in the OCL report which led to the recommendation of supervised access, did not meet a sufficient threshold to warrant supervision. Justice Perron further criticizes Melinda in refusing to follow the court order for access made initially in August 2012, which would be unsupervised. The court concluded, notwithstanding this order, Melinda refused to allow Jeffery to see his children in the subsequent block of access unless there was supervision. He commented that Jeffery really had no option to go along with her dictates because he was now in Canada and just wanted to see the children.

[115] My first concern is timing of the motion before Perron J. The OCL report had been received by the parties in September 2013, yet Melinda waits until the last minute when she knew Jeffery’s arrival was imminent, to bring an emergency motion on the day of his arrival in Canada. She should have brought her motion shortly after the OCL report was received, well in advance of the next block of access time. One of my conclusions in this decision is Melinda has long interfered and obstructed with access, and this is an example of provoking Jeffery while he is on his way to Canada. It is nerve racking from Jeffery’s perspective to be travelling to another country with a certain expectation of access and then to be faced with a proceeding immediately upon arrival.

[116] Though Perron J. did not specifically reference the examples of safety concerns, it is inferred he did not consider those examples to meet a threshold for granting supervised access.

[117] There are three examples the OCL uses to recommend supervised access. Firstly, there is an occasion wherein Jeffery was unloading the car in the parking lot and the OCL indicates he did not have sufficient observation of all three children, and this put them at risk. Jeffery disagrees and indicated he was well aware as to the presence of the children at all times. When a single parent is with three children of different ages at the same time, without any assistance, it is a challenging situation. At its highest this is a marginal example of a safety concern. I do not consider this to be a situation of undue risk.

[118] The next example deals with Jeffery walking on the beach with Ahsoka walking behind him. The OCL representative was walking behind Ahsoka. The OCL did not feel Jeffery could see Ahsoka. He was criticized for walking ahead of her and not observing her directly.

[118] On listening to Jeffery’s version of this, I do not accept the criticism of the OCL. Jeffery was only walking slightly ahead of Ahsoka. He could hear her right behind him. He also had peripheral vision if she was to dart off to the side towards the water. He was well aware of where she was despite being slightly behind him. Further, I might add, she was wearing a life jacket. Had she darted off toward the water unexpectedly, he would have heard her movement and have observed her and was in a position to respond quickly. This scenario was not a safety concern.

[119] The third example is the three children playing on a slide. They were going up and down the slide and Ahsoka was being caught at the bottom and bumped into. She became upset. Jeffery intervened and tried to calm down the boys. He applied discipline. The OCL representative intervened and put a stop to the sliding and was critical of Jeffery for allowing this level of rough housing to continue and was also critical of Jeffery’s disciplining of the boys. This type of scenario is an example of a sharp divide that exists today in the world of parenting standards. A generation ago a scenario like this would not have bothered anyone. When you have a sibling group of three, with this age differential and the youngest being a female, things are going to get a bit rough. That is the reality of parenting.

[120] However, in today’s increasingly risk averse society of helicopter parenting and hyper-vigilance of everything a child does, I can understand from today’s standard why this might bother some people. This child is not a porcelain doll. We actually harm the ability of children to develop independence to assist in their own protection by over-protecting them.

[121] As Perron J. pointed out, there must be something unusual or exceptional about circumstances before a court will impose supervised access. He declined to do so. I agree with him.

[122] At the time the trial started in April 2014, the OCL report was somewhat dated. It is my sense of the overall evidence, Jeffery’s confidence in parenting has increased significantly. I have to consider all of the evidence in this trial, not simply focus on the OCL report, which is but one small part of the overall pool of evidence.

[123] Any clinician involved in these cases is faced with a huge challenge of sorting out the credibility and reliability of information received from parents and others. This is not an easy task for OCL representatives or others who become involved in family cases. Clinicians have a specific skill set pertaining to their training; they are not trained to sort out the complexities of credibility and reliability of information.

[124] In this case it is clear the OCL representative accepted almost completely all of the allegations made by Ms. Morwald-Benevides and her mother and the children. In reviewing the examples contained in the report, and based on all of the trial evidence, I have already rejected a substantial number of the allegations made by Melinda. I also reject many of the comments made by the children, because Melinda has conditioned the children’s minds against their father. I do accept the conclusion this was an abusive home environment in Bermuda, however, I have concluded the abusive home environment was contributed to substantially by both parents. I believe Melinda has conditioned the children against the father specifically arising out of their memories of Bermuda. Their memories as presented today are the father is almost exclusively responsible for the abuse in the home. This is occurring because of the consistent programing of their minds against the father. The reality is something far different.

[125] The OCL report references the involvement of the Children’s Aid Society. I also do not accept the conclusion of the Children’s Aid Society that Jeffery was the one primarily responsible for the abuse in the home in Bermuda.

[126] OCL clinicians bring a certain skill set to these types of cases. However, this is a very unusual case. It is one wherein there is significant clinical pathology. My reason for engaging a clinical psychologist, is I wanted a different skill set to properly assess the parents and the children.

[50] In Froehlich-Fivey v. Fivey, supra, Lauwers J.A. notes in paragraph 23 that “the decisions on whether a witness is biased, and whether to accept expert evidence, are quintessentially within the trial judge’s mandate.” Clearly, in my view, the weight accorded by the trial judge to the respective reports of the OCL and Dr. Dr. Ross are directly related to his findings of fact and credibility and as such requires a finding of overriding and palpable error.

[51] In Baker v. Rego, supra the trial judge was faced with a similar motion in which the appellant relied on an alleged failure by the trial judge to give sufficient weight to a report prepared by the OCL. I adopt the following comments and conclusions set out by the appellate judge in that case at par. 15:

15. Finally, the appeal is based largely upon the failure of Rogers J. to follow the recommendations of the OCL social worker to give custody of Joshua to Ms. Rego. However, the social worker investigation, as with any other expert's report, is only one piece of evidence before the court and such reports are not determinative of the result; the trial judge is entitled to exercise his or her discretion not to follow the expert's recommendations: see Tyabji v. Sandana [1994 CarswellBC 654 (B.C. S.C.)], 1994 CanLII 410.

[52] The OCL assessor and Dr. Ross gave evidence at the trial. In giving more weight to the report of Dr. Ross the trial judge was simply exercising his discretion. There is no palpable and overriding error of fact or fact and law here. There is good reason to believe that an appeal based on this ground is both a waste of time and a nuisance, and in the circumstances of this case would also constitute an abuse of process.

iii) The Trial Judge failed to consider relevant evidence

[53] The appellant argues that the trial judge erred in fact and law by failing to consider the domestic violence allegedly perpetrated by Mr. Benevides when assessing his ability to act as a parent. She points out that this is a mandatory consideration pursuant to section 24(4) of the Children’s Law Reform Act.

[54] In my view, there is no merit to this ground of the appeal. A review of the decision of the judge reveals that the issue of this alleged violence received a considerable amount of attention throughout the proceedings…in fact it ended up being the predominant issue.

[55] The trial judge concluded that in many cases the allegations were without foundation and gives a number of examples. Several of the examples involve incidents which occurred in the presence of Dr. Ross, which the trial judge recounts at par. 9(a) and (b) of his decision as follows:

[9] Melinda and her mother Sylvia are in effect co-parents of the children. The family lives on the property of a marina, camper, trailer and rental business owned and operated by Sylvia. Any comment on credibility made on the one would also apply to the other and vice versa. Overall they were not credible and reliable witnesses. They distorted, embellished and contrived much of their evidence. I accept a portion of their evidence relating to the environment in the family home in Bermuda. I will review some examples:

a) Melinda, Sylvia, Jeffery and the children were at Dr. Patricia Ross’s office parking lot in August 2014, participating in the psychological assessment ordered by the court, conducted by Dr. Ross;

Jeffery had the trunk opened on his rental vehicle. He was sifting through things that belonged to Melinda which he brought back from Bermuda for her. Tristen was also looking in the trunk and touched a particular item. Jeffery took Tristen’s arm and directed it away from the item. It was a gift for one of the children of Jeffery’s girlfriend. He did not want to explain this because it might trigger Melinda to become upset.

Melinda and Sylvia observed that Jeffery was angry at Tristen and physically, inappropriately redirected his arm. In particular in the evidence of Sylvia, she embellishes what happened and made something very minor into something major.

Dr. Ross observed this. She said Jeffery was frustrated but definitely not angry, and does not agree with Melinda and Sylvia in the touching of Tristen’s arm being inappropriate.

This is important because of the innumerable allegations made by Melinda of excessive physical discipline, corporal punishment or inappropriate physical contact between Jeffery and the children. I do not accept the evidence of Melinda and Sylvia. I accept the evidence of Dr. Ross.

b) On the same as referred to in paragraph 9(a), Jeffery brought some items of Melinda’s back from Bermuda to give to her. They were trying to sort out where the stuff of Melinda’s would be transferred from Jeffery’s vehicle to Melinda’s vehicle. During all of this, Melinda perceived that Jeffery was trying to get her alone at the back of the building. She feared being alone with him and what he might do to her. Dr. Ross intervened in this situation because she was concerned about any escalation in the presence of the children so she directed who would do what and who would go where. This intervention by Dr. Ross was perceived by Melinda and Sylvia for the personal safety of Melinda to protect her from Jeffery. Dr. Ross disagreed with this perception and clearly told Melinda and Sylvia. Despite that, Melinda and Sylvia refused to accept Dr. Ross’s explanation and were adamant Dr. Ross intervened to protect Melinda from Jeffery. Dr. Ross made it clear to her again she was not intervening for the personal safety of Melinda, but she was concerned about an escalation in the presence of the children. Despite Dr. Ross repeating herself, Melinda and Sylvia insisted this was done to protect Melinda. They believe what they wanted to believe, regardless of what Dr. Ross stated. They created their own reality which was disconnected from what actually happened.

[56] Ms. Morwald-Benevides also alleged that Mr. Benevides assaulted her while in Canada. This allegation was rejected by the trial judge who dealt with it in as follows at par. 9(y) , in his reasons:

y) Melinda made allegations of physically assaultive contact by Jeffery to her, while in Canada. In one example, when they were in close physical proximity, exchanging car seats for the children, she alleged he shoved her. His version was they were in close physical proximity because of dealing with the car seats and he did not touch her inappropriately. She makes it look as if he was assaulting her. I do not believe Melinda’s account of this interaction. She is looking for the slightest pretence to make allegations against Jeffery. The height of absurdity of Melinda’s efforts to control Jeffery’s access, occurred when she insisted he could only have access at the Supervised Access Centre in Parry Sound. He was in Parry Sound for one of the settlement conferences. She interpreted an access order at the time by Perron J. as calling for supervised access. She was wrong in that interpretation. The clarification had to go back to Perron J. three times in order to make it clear to her he was not ordering supervised access.

i. The Supervised Access Centre in Parry Sound was not open therefore Jeffery had to drive with the children in his vehicle to the Supervised Access Centre in Sundridge, Ontario, 1¼ hours away. The absurdity is the access is supposed to be supervised, yet he is driving in his vehicle on an unsupervised basis, travelling to a place wherein he is going to be supervised.

ii. Melinda claims, based on discussions with the children, that Jeffery was angry throughout the drive to Sundridge and was screaming and yelling at the children, alleging it was Melinda’s fault he had to drive over an hour away to see his children. As well as being angry at the children, she claims he was angry at her. She said he took out his frustration on the children and said “You fucking kids”.

iii. One would expect with this turmoil in the vehicle on the drive to Sundridge there would be some sign of either Jeffery or the children being upset once they arrived at the access centre. The evidence of the access supervisor was Jeffery and the children were calm when they entered the centre. They appeared to be happy and loving. She then goes on to describe in her evidence that over the next two hours Jeffery had an excellent visit with his children. She provides considerable detail of this positive visit.

iv. I do not believe anything Melinda attributes to the children. Jeffery was only in Parry Sound for a short period of time for the settlement conference. Though he had unsupervised access previously, he was prepared to accept supervised access, because it was more important for him to see his children, rather than argue with Melinda as to the need for supervision. His commitment to his children is evident because he was prepared to drive for more than one hour to facilitate the visit. I do not believe he was angry and took this out on the children. If this drive was as tumultuous as Melinda makes it out to be, one would expect the access centre supervisor to have some observations of a negative nature when the children walked into the centre. If these children were upset they could not turn their emotions on and off like tap water. There would be some indication of the turmoil of the previous hour; there was not.

[57] Mr. Benevides admits that he has spanked his children in the past. The trial judge dealt with this issue as follows in par. 38 of his decision:

38. In relation to discipline, Jeffery acknowledges he has spanked the children in the past, but now says he has learned more effective child management skills and no longer uses spanking. He says spanking is common in Bermuda. He understands the difference between a spanking and a beating and says he has never lost control or physically harmed his children.

[58] At paragraphs 48 and 49 of the trial judge’s decision the trial judge points out that Mr. Benevides is motivated to improve his parenting and spousal skills. He states:

48. Jeffery has taken programing in Bermuda that has taught him a lot about parenting and how to deal with conflict with an ex-partner. He has read a book entitled “The Co-Parenting Survival Guide – Letting Go of Conflict After a Difficult Divorce”. He learned about this book from a facilitator at a parenting group he attended. He said the book fits he and Melinda perfectly.

49. One thing he learned from the book is taking care of what is said to the children about the other parent or about legal proceedings. As an example he indicated he had previously said to the children “We can’t do something because mummy will bring it up in court”. He realizes such a comment is inappropriate. He feels Melinda would benefit from this book. In my view there is zero chance Melinda will read this book or any other similar book because she is incapable of looking at herself in the mirror. She is devoid of insight or self-awareness.

[59] Justice Keast concludes that by the time the marriage ended, the relationship between the parents had deteriorated to the point that the children were living in an abusive environment. He attributes equal blame to the parents. However, in contrast to the appellant, Mr. Benevides had demonstrated the motivation and honesty to change. He concludes his discussion of the relationship between the parties and the allegations of abuse with the following comments:

[59] What is clear is this – this was an abusive home environment for raising children. What is also clear is they both contributed substantially to this abusive environment.

[60] I do not accept the extreme degree of Melinda’s allegations. She has distorted, embellished and contrived. She has no insight into the dynamics of interaction with Jeffery. She sees herself as blameless and him as exclusively at fault.

[61] Melinda has no tolerance when she is crossed and Jeffery crossed her frequently. The real Melinda was the one who went on an angry tirade at the school in Bermuda, in the presence of other parents and the children. She mocked and degraded Jeffery to their son. The real Sylvia was the aggressive in your face style seen in this courtroom and seen in Dr. Ross’s office.

[62] Jeffery was mentally and emotionally abusive of Melinda. She treated him the same.

[63] Over time Melinda has become obsessed with Jeffery. She has read countless articles on domestic violence, spousal and child abuse. She has turned Jeffery into a monster. She has created a narrative that she and the children are victims. She has failed to understand the two-sided nature of the dynamics in the home.

[63] In this trial, as well as to Dr. Ross, Jeffery came across as contrite, shamed and embarrassed. He admits many sins. He has far better insight as to how they contributed as a couple to the abusive environment.

[60] In summary, the suggestion by the appellant that the trial judge failed to consider the issue of domestic violence as mandated by s. 24(4) of the Children’s Law Reform Act is completely without foundation. There is good reason to believe that an appeal based on this ground would constitute a nuisance and a waste of time, as well as be an abuse of process in the circumstances of this case.

iv) Procedural Fairness and Violation of Charter Rights

[61] The appellant alleges that the trial judge’s actions in appointing amicus curiae and in denying the appellant’s motion for an adjournment violated her s.7 Charter rights.

[62] The trial judge’s reasons for appointing amicus curiae are summarized in paragraphs 13 through 20 above. The decision to appoint an amicus curiae to assist the court has always been within the discretion of a trial judge. I note that there is no record that Ms. Morwald-Benevides objected to the appointment. Also, when the Attorney General later brought a motion before the trial judge objecting to the appointment she did not join in on this motion; nor did she join in on the later of appeal of this decision to the Superior Court. Clearly, she enjoyed and benefited from the support and expertise offered by the amicus. Furthermore, given the reasons set out by the trial judge I do not see how the appointment of an amicus curiae or friend of the court can be viewed as having prejudiced the appellant.

[63] There is a suggestion in the appeal that the trial judge should have granted the appellant an adjournment of the trial so that she could retain a legal aid lawyer. The record does not reveal that she brought a motion for this purpose. What the record does reveal is that prior to the commencement of the trial the appellant brought several motions to adjourn the trial which were denied by the trial judge and upheld on appeal. She was represented at these motions. She was also advised as recently as the trial management conference held on March 17, 2014 (at which time she was represented) that the father was making arrangements with his bank to bring his arrears up to date and that she would therefore have funds available to pay her lawyer. The father provided her with a payment of $17,500 on the first day of the trial. At that time the trial was expected to take four days.

[64] The trial judge describes the appellant’s pre-trial efforts to adjourn the trial at paragraphs 55 through 69 of his September 29, 2015 decision confirming the appointment of the amici curiae as follows:

55 The first scheduled day of the trial was 11 April 2014. The first series of dates were scheduled months earlier. At the outset of the trial, the case was almost two years old.

56 The events of the week before the trial influenced my decision to appoint amicus curiae for the mother. She brought two motions to adjourn the trial. She was represented by counsel. The first was a recusal motion that if I granted, would have had the effect of adjourning the trial. I dismissed the motion.

57 The second motion was to adjourn the trial on the basis of child support arrears not being paid. She brought this motion just before trial although the arrears had been outstanding for quite some time. The timing of that motion concerned me. I dismissed the motion. If I had granted the motion, the effect would have been an indeterminate delay of the trial. The mother was not prepared to commit to specific future trial dates, taking the position she had no idea when the arrears would be paid.

58 Days before trial, the mother immediately appealed both decisions to the Superior Court. She also requested the Superior Court stay both motion decisions, and to stay the trial pending the completion of the appeal process. The Superior Court dismissed her motion to stay the decisions and to have the appeals heard before the trial commenced.

59 During the lengthy pre-trial stage, the mother on several occasions sought to adjourn motions and conferences. Before the trial even commenced, a pattern had developed by the mother of seeking to delay the proceedings. Before the trial commenced, it was apparent to me, the mother did not want the trial to proceed.

60 The trial opened with the mother self-represented. She was represented by counsel on the two pre-trial motions and appeal, but that was a limited retainer, not a retainer for trial. In the previous almost two years, the mother had dismissed five lawyers. The mother brought a motion at the commencement of trial for an adjournment on the basis of medical grounds. She tendered two medical letters from her family physician.

61 In the first hour of the trial, it was apparent to me the mother's behaviour was bordering on hysterical. She was emotional and hyper and had a difficult time focusing. Fueling this, her mother was in the courtroom and was emotionally distraught.

62 Later in the morning, the mother collapsed in the courtroom. The clerk called an ambulance and she was rushed to hospital. She did not re-attend court that day. Court was recessed to 2:00 p.m. In the afternoon, her brother attended court on her behalf.

63 Over the lunch hour on the first day of trial, I made my decision to appoint an amicus curiae on behalf of the mother. It was clear to me that she was incapable of self-representing. The trial was destabilized and something had to be done to salvage the situation. I requested the attendance of Andrew Thomson, a local barrister and solicitor, to attend the afternoon session of the court. Mr. Thomson is a seasoned litigator, well-regarded and well-respected by the bench. He was a previous counsel to the mother and had extensive knowledge of the file. Mr. Thomson, somewhat reluctantly, agreed to the amicus appointment.

64 I was not prepared to adjourn the trial based on the two medical letters. I requested the attendance of the physician on the next day of the trial. The physician was extensively questioned. The physician recommended an adjournment of the trial based on alleged medical and mental/emotional reasons. I dismissed the motion to adjourn the trial. The medical evidence was vague. I questioned whether or not the mother's medical and emotional circumstances were any different than other litigants who come into the courtrooms. Further, the doctor was unable to give a timeline when the mother would be fit enough to go through a trial. The mother's position, if accepted, would have led to an indeterminate and lengthy adjournment of the trial.

65 In this jurisdiction, if a trial is lost, a new trial date cannot be accommodated for at least six (6) months, longer if the trial requires multiple days such as this one. Had I granted the motion, since neither the doctor nor the mother knew when she might be fit enough for a trial, a new trial date could not have been set at that time. So the court would have to wait until the mother was medically ready for trial before a new trial date could be set. This would have pushed the timelines out for a year or more.

66 Based on my review of the continuing record in preparation for the trial management conference and what was learned at the trial management conference, I considered this to be a high conflict and particularly toxic case, which would constitute some one percent of our volume of cases. This view was reinforced by my observations of the mother's demeanour in the courtroom in the week prior to the trial, when she brought the motions to adjourn. Although represented by counsel, she was visibly emotionally distraught.

67 The primary reason for appointing amicus curiae was to stabilize the proceeding. Her emotionality was a significant barrier for her to self-represent. She was unable to focus and appeared disoriented. Her emotional presentation was so severe that she could not have been managed in a courtroom. In the two years prior to trial, she repeatedly tried to adjourn conferences and motions. Given the events of the week before trial and the events on the first day of trial, I was satisfied the mother was prepared to do whatever it took to prevent a trial from proceeding or being completed.

68 Another factor in making the appointment was the specter of domestic violence and the impact it may have had on the mother. In her affidavits in the continuing record, and in particular, the comments contained in an e-mail that was filed with the court in the week before the trial, I was struck by the intensity and desperation as to her deeply rooted fear of the father. Although these allegations at the time were unproven, her strongly held belief that she was severely abused, was contributing to her emotionally unstable presentation. Whether there was any basis for these views is irrelevant; her feelings were genuine and valid to her and strongly perceived. Being alone in the courtroom with the father was beyond what she could bear. I needed to calm her down so I could effectively deal with the evidence and issues and ultimately the best interests of the children. She needed a buffer. Amicus curiae was the solution.

69 The issues in this case were varied and most complex, as already pointed out. Even an emotionally stable person could not have effectively managed them. I would have been left in a significant deficit position to adjudicate on the best interests of the children.

[65] I note that the trial took place over a period of about 14 months. Ms. Morwald-Benevides received the sum of $17,500 on the first day of trial. If the appellant truly wanted to be represented by her own lawyer she could have taken steps during this 14-month period to retain counsel; there is no evidence that she attempted to do.

[66] In conclusion, it is my view that the decision of the trial judge to appoint amicus curiae was an exercise of his discretion. The trial judge was simply attending to the situation as he understood it. He needed assistance and he sought assistance from a “friend of the court”. His decision to deny the appellant’s request for an adjournment also constituted an exercise of his discretion. He gave detailed and coherent reasons for these decisions. There is no evidence that the appellant objected to the appointment of the amicus, nor is there any evidence that she took steps to retain her own lawyer at any time during the 14 months it took to complete the trial. I fail to see that these decisions of the trial constituted a palpable and overriding error of fact and law, or that there is any basis to now argue that the appellant’s Charter rights were violated.

[67] I find that there is good reason to believe that this ground constitutes a nuisance and would be a waste of the court’s time.

v) The Trial Judge Exceeded his Jurisdiction

[68] The appellant takes issue with the fact that the trial judge included the following provision in his order:

187 hh) The applicant mother shall not make any disclosure of, or complaints of historic domestic violence, verbal abuse, emotional abuse, intimidation, or of threats by the respondent father towards her, nor shall she discuss in any way her versions of these details, or the details of her relationship with the respondent father and its breakdown. The applicant mother specifically shall not discuss with the children any of the contents of this decision

[69] Counsel for Ms. Morwald-Benevides submits that this paragraph means that the appellant cannot discuss or disclose complaints or historic abuse, etc., to anyone, including for example counsellors. Counsel for Mr. Benevides submits that this provision should be interpreted in the context of the entire paragraph and it simply means that Ms. Morwald-Benevides cannot discuss these matters with her children; as such it does not exceed the jurisdiction of the trial judge.

[70] I am of the view that this paragraph is designed with the children in mind only. The second sentence refers specifically to the children. Furthermore, if it is to be interpreted as applying generally, to everyone, including counsellors, it conflicts with other paragraphs of the order such as paragraph 187q which requires the mother to co-operate with all counselling for herself and the children as recommended in the assessment of Dr. Ross and the report of the Office of the Children’s lawyer.

[71] I agree however that there is some ambiguity in the wording and it could have been more carefully drafted. Clearly however, a new trial is not necessary to deal with this ambiguity. Paragraph 187jj of the Order provides that Keast J. shall remain seized of any future proceedings to vary this order. In view of the admission by counsel for Mr. Benevides that the prohibition in this paragraph is directed to the mother’s communications with the children I would suggest that the parties bring a motion before Keast J. for clarification and if necessary for variation.

[72] I find that this ground of appeal does not constitute a palpable and overriding error of fact or fact and law sufficient to justify a new trial. There is good reason to believe that an appeal based on this ground would also constitute a nuisance and a waste of the court's time.

B. Second Issue: Does the appellant have insufficient assets in Ontario to pay the costs of the Appeal?

[73] The appellant concedes that she does not have sufficient assets to pay the costs of the appeal

Conclusion

[74] For the above reasons, I find that the threshold for an order for security for costs under Rule 38(26) has been met. There is good reason to believe that this appeal is a waste of time and a nuisance.

C. Third Issue: For other good reason, should security for costs be issued?

[75] Although I have found that this appeal constitutes a nuisance and a waste of time, I will provide several other reasons why security for costs should be ordered.

[76] Firstly, I question the appellant’s motivation to proceed with this appeal.

[77] Throughout these protracted proceedings, the only significant issue has been access, and in particular whether access must be supervised or unsupervised.

[78] The record indicates that the parties visited the issue of access in court on 11 occasions in some form or another between August 13, 2012 and the commencement of trial. Four orders, each granting Mr. Benevides access were issued by the court during that time period.

[79] Access continued to be an issue even during the trial, resulting in three orders by Keast J. granting Mr. Benevides access.

[80] The respondent submits that the appellant’s history of requiring Mr. Benevides to re-litigate the issue of access shows a measure of contempt. I agree. In my view, Ms. Morwald has demonstrated that she will never accept a ruling from this court that Mr. Benevides should have unsupervised access. This is the motivation behind this appeal. As Justice Perron noted in his endorsement on April 7, 2014, “I have been asked to clarify the order of January 21, 2014. As this is the third time that I have been asked to do this, and to prevent any future confusion, clarification is now being presented in this written endorsement. This order does not in any way, contemplate supervised access. In fact, this part of the motion was clearly dismissed.” [Emphasis added].

[81] Notwithstanding the clarity of this order, it was necessary for Mr. Benevides to continue to seek access orders from the court thereafter.

[82] Secondly, I am concerned about the amount of judicial resources which have been allocated to this case to date, as well as the financial cost to the parties.

[83] In reviewing the request for security for costs under the Family Law Rules, Justice Pazaratz, noted the purpose as follows in Izyuk v. Bilousov 2015 ONSC 3684:

38. But litigants should not be permitted to use the court as a playground. Court proceedings are expensive, time consuming, and disruptive. They should not be launched frivolously or without due regard to the impact on the responding party. McGaw v. Samra 2004 ONCJ 164, [2004] O.J. No. 3610 (OCJ).

[84] At paragraph 61 of his decision Justice Pazaratz cited the Supreme Court of Canada in Hyryniak v. Mauldin 2014 SCC 7, noting that the Supreme Court has clearly identified that a shift in culture is required in our court system. Of particular relevance to this case, he notes:

c. our ability to control our process will vanish if we fail to apply costs sanctions in a meaningful way in relation to the growing number of self-represented parties – winners and losers.

d. Particularly in family law, we have created a complex, time-consuming and expensive system. We will promote mischief and abuse of that system if some litigants never have to worry about either legal fees or costs consequences.

[85] This case has already consumed immeasurable judicial resources. The trial took 23 days to complete, transcripts for each day were ordered by the trial judge, amici were appointed and even prior to the commencement of the trial the parties engaged in numerous motions.

[86] The judicial processes have also been very costly for the parties, who could have used the money they spent on legal fees for other purposes which would have benefitted their children.

[87] Thirdly, I am concerned about the effect of these proceedings on the children. The children are old enough to be aware that their parents are in a conflict. They love both of them and I have no doubt that the proceedings have generated a considerable amount of stress in their lives as well as in their home environment.

[88] As noted by Justice Pazaratz at par. 42 in Izyuk v. Bilousov:

42. But high conflict parenting disputes are often the most time consuming, financially draining, and emotionally damaging cases we deal with in family court. Quite often the best gift we can give children is a break from the family siege mentally and perpetual stoking of conflict which accompanies endless litigation.

[89] Clearly, the circumstances of this case are such that the court should discourage any further and unnecessary expenditure of funds and give the children a break.

DISPOSITION

[90] Taking into account the lack of merit of the appeal, the respondent’s exposure to the costs of the appeal, the father’s prospective difficulty in collecting costs from the appellant, and the additional reasons noted above I find good reason to order the appellant to post security for costs in this case. I therefore order the appellant to post security for costs in the amount of $25, 000 within 60 days of the date of this order, failing which a judge of this court may dismiss the appeal on motion.

COSTS

[91] If the parties cannot agree on costs of this motion, they can file written submissions in relation thereto within 15 days of the release of this decision. The submissions are to be no more than 3 pages in length, plus any attachments. They have 10 days thereafter to reply to each other’s submissions.

E.J. Koke S.C.J.

Date: January 23, 2017