COURT FILE NO.: FS-19-13487

DATE: 20201013

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

K.M.

Appellant

– and –

Z.M.

Respondent

K.M., acting in person

Paula M. McGirr, for the Respondent

HEARD at Toronto: October 9, 2020

On appeal from the decision of Justice D. Paulseth dated October 3, 2019

C. Horkins J.

overview

[1] The applicant father appeals the final order of Justice Paulseth. That order was made after a trial and terminates the father’s access to the children with terms.

[2] The parties married in Armenia in 2012. After the marriage, the father returned to Canada. The first child was born later that year. In 2013, the father returned to Armenia for a visit. The second child was born after his return to Canada. The children are now seven and six years old.

[3] The father sponsored his family to come to Canada and they arrived in March 2018. They lived together for a period of six months.

[4] During the six months, the mother became increasingly concerned with the father’s behaviour. He was volatile, aggressive, angry, loud, controlling, argumentative, inflexible untruthful, a hoarder, germ phobic, obsessive compulsive and psychologically and occasionally physically abusive to the mother. The children were constantly exposed to this erratic and frightening behaviour. The father’s conduct placed the children at risk of harm. The eldest child was particularly susceptible to the negative impact of the father’s behaviour. This child has been diagnosed with autism and as a result has significant special needs.

[5] As a result of the father’s behaviour, the mother and children fled to a shelter.

[6] On October 31, 2018, the mother commenced an application in the Ontario Court of Justice seeking custody, supervised access for the father, child support, a restraining order against the father and a non-removal order against him. During the application and before the trial, Justice Paulseth made several orders, all on consent. While represented by counsel, the father agreed to an order providing supervised access at Access for Parents and Children (“APCO”), one hour a week. He later agreed to final orders giving the mother sole custody and requiring him to pay child support.

[7] On June 23, 2019, APCO terminated the father’s access because of the father’s inappropriate and at times abusive and threatening conduct towards the staff. Some of this conduct happened in the presence of the children.

[8] The remaining issue of the father’s access proceeded to trial before Justice Paulseth.

[9] By the time of the trial, the father did not have a lawyer. At the start of the trial, the father asked the trial judge to recuse herself. The basis for this request was the father’s belief that the trial judge was not fair and was “against fathers”. While there was no motion seeking this relief, the trial judge heard and denied the father’s request. This is a ground of appeal and is considered below.

[10] When the trial judge denied the recusal motion, the father told the judge that he was leaving the courtroom. When the judge urged him to stay and participate, he said “you can continue without me”. He left the courtroom and the trial proceeded in his absence.

Grounds of appeal

[11] The father’s grounds of appeal as set out in his Amended Notice of Appeal are as follows:

1. Lack of sufficient evidence to support [the] judge’s order taking away access to my children or putting them into supervised access.

2. Decisions made by Judge were based on unproven allegations by the Mother and contrary to the evidence submitted by the Father.

3. The Judge in Trial was the same Judge who was present for Case Conference and previous court hearings.

4. The Judge proceeded with [the] trial in the absence of the [father] in spite of the [father] filing a complaint against the judge in court and advising the Judge that she should recuse herself from being involved in previous off the record case conference[s].

STANDARD OF REVIEW

[12] The standard of review on an appeal from a judge’s order is set out in Housen v. Nikolaisen, 2002 SCC 33. On questions of law, the standard of review is correctness. For findings of fact, the standard of review is a palpable and overriding error.

[13] On questions of mixed fact and law, there is a spectrum. Where there is an extricable legal principle, the standard of review is correctness. However, with respect to the application of the correct legal principles to the evidence, the standard is palpable and overriding error.

[14] With respect to findings of fact, an appellate court “may substitute its own view of the evidence and draw its own inferences of fact where the trial judge is shown to have committed a palpable and overriding error or made findings of fact that are clearly wrong, unreasonable or unsupported by the evidence.” (H.L. v. Canada (Attorney General), 2005 SCC 25, at para. 4). [Emphasis in original.] The Supreme Court of Canada went on to say (at para. 55) that the language of “palpable and overriding error” and “clearly wrong” found in the case law “encapsulate the same principle: an appellate court will not interfere with the trial judge’s findings of fact unless it can plainly identify the imputed error, and that error is shown to have affected the result.”

Summary OF DECISION under appeal

[15] This summary provides an overview of the trial judge’s Reasons for Judgment (“reasons”) that were delivered orally. The reasons are considered further as the grounds of appeal are addressed.

[16] The trial judge reviewed the consent orders and the evidence about the father’s conduct and the supervised access. She recognized that it is a “very very tragic case”.

[17] The history of the parties’ relationship and marriage was reviewed and, in particular, the mother’s concerns about the father’s behaviour during the six months they lived together in Canada.

[18] The mother’s trial affidavit provided many examples of the father’s behaviour that the trial judge described as “very clear”. The father did not cross-examine the mother because he chose to leave the courtroom. Based on the mother’s evidence, the judge found that the father has “very serious mental health issues for which he will not get treatment” and he “doesn’t have any insight into [these problems]”. He blames everyone but himself and “sees a conspiracy everywhere”. The trial judge noted that people became frightened of him. The judge noted a few examples of his behaviour: germ phobia, obsessive compulsive disorder, constantly blaming and threatening people. As well, the father would not agree to using an anesthetic to treat the children’s “serious dental issues”. The trial judge described this as “very very … crazy”. The judge also found that the father constantly called the children’s pediatrician and harassed this doctor.

[19] The situation became “nerve wracking and traumatizing” for the mother. The father called the mother the devil and accused her of having demons in her head. Before the mother fled to the shelter, the father started to push her around and became more physical with the children. The autistic child was emotionally distressed by his conduct. The judge found that the father could not appreciate the special needs of this child and the treatment the child requires.

[20] Addressing the germ phobia, the judge found that the father left the children alone in the car on several occasions, while he went back into the house to wash his hands.

[21] On one occasion, the father had a physical fight with an older child from a previous marriage. This fight was in the presence of the children in question and the police had to be called.

[22] The trial judge accepted the evidence of the APCO supervisor where the father had supervised visits with the children. The visits did not go well. The father was late for every visit. He was angry and defiant and did not want to follow the APCO rules. He was argumentative and abusive with the staff and accused them of child abuse. APCO had to terminate the father’s visits because they could not manage his behaviour.

[23] Before the father left the courtroom, he told the judge that he was calling his sister as a witness. It was suggested that she could supervise the access. The sister did not testify because the father refused to participate in the trial. During the trial, the father came in and out of the courtroom and the judge observed his behaviour with his sister. The father was observed to be controlling his sister.

[24] It was the mother’s evidence that the sister was not someone who could supervise the father’s access because the father “totally controls her” and she cannot stop his behaviour. The judge accepted the mother’s evidence.

[25] The judge correctly applied the law noting that denial of access to a parent is an “extraordinary remedy” to be used in the “most rare and unusual circumstances”. The judge found that this was such a case given the father’s unpredictable and uncontrollable behaviour in the presence of the children. His conduct placed the children at risk and they and the mother were afraid of him. Aside from termination of access there was “no sustainable child-focused alternative”.

[26] The trial judge’s final order provides terms if the father seeks access in the future. He must first seek leave from the court to bring a motion to change the final order. On the leave motion, the court will consider the father’s efforts to address the “parenting concerns” such as the following: a psychological or psychiatric assessment of the father and what if any mental illness he has that impacts on parenting; his successful completion of a parenting program including one for autistic children and; his successful completion of an anger management program.

[27] Finally, during the trial it was open to the father to call medical evidence to support his position that he does not suffer from a diagnosed mental illness. It was also open to him to call the type of evidence that a court will look at if he ever brings a motion for leave. He did not do so and has never brought a motion for leave.

analysis – Grounds of appeal

[28] Grounds 1 and 2 are alleged errors of fact. The father must show that the trial judge made a palpable and overriding error. He has not done so.

[29] These grounds of appeal both focus on the evidence that the judge accepted as fact at trial. The first ground addresses the father’s position that the trial judge did not have “enough” evidence to deny access. The second ground alleges that the trial judge relied on the mother’s “unproven allegations”.

[30] The father argues that the judge denied him access because she found that he has a mental illness. The father states that this was an error because there was no “professional opinion or clinical report” from CAMH or some other mental health center or doctor.

[31] The father also argues that it was an error for the judge to rely on the APCO evidence to terminate his access, because there was no evidence that he was a danger or posed a risk of harm to the children.

[32] The father chose not to participate at trial. As a result, he did not cross-examine the mother and the APCO supervisor or call his sister to support his proposal that she could supervise access.

[33] The judge found that the father’s behaviour posed a risk of harm to the children. With or without a medical diagnosis, the evidence supported this finding of fact. The trial judge’s reasons explain the compelling factual foundation for her decision to terminate access. Simply put, there was no child-focused alternative and the father’s behaviour placed the children at risk of harm.

[34] Grounds of appeal #3 and #4 deal with the father’s position that the trial judge should have recused herself and refused to do so. He argues that this refusal and her decision to proceed in his absence was unfair. I reject these grounds of appeal.

[35] The father believes the judge was “not fair” and is “against fathers”. He raised the alleged bias for the first time at trial. The trial judge heard his request and ruled against him. There was nothing in the record to support the recusal request. The trial judge had issued pervious orders and all the orders were made on consent. The judge had not conducted a settlement conference between the parties.

[36] After denying the recusal motion, the judge told the father that she was continuing with the trial. When the father said he was leaving, the judge urged him more than once to stay and participate. In particular, the judge reminded him that the APCO supervisor would testify and that he could cross-examine her about the visits. The father refused to stay and told the judge “You can continue. I’m not stopping you. You can continue without me”.

[37] The test to meet is, would an informed person, viewing the matter realistically and having thought the matter through, conclude that the trial judge would not decide the matter fairly: Committee for Justice and Liberty v. Canada (National Energy Board), 1976 CanLII 2 (SCC), [1978] 1 S.C.R. 369, at p. 394; R. v. Grant, 2016 ONCA 639, at para. 128.

[38] There is a strong presumption of judicial impartiality. A party questioning a judge's impartiality must present cogent evidence in support of the allegation of bias or apprehension of bias. The fact that a litigant has complained about a judge is not a sufficient basis for recusal, otherwise all unhappy litigants could ensure the replacement of a judge who had found against them by complaining about the judge (see R. v. Montoya, 2015 ONCA 786, at para. 9).

[39] There is no basis for these grounds of appeal. The standard is not what the father may believe but rather would a reasonable and informed person, viewing the matter realistically, and having thought the matter through, conclude that the trial judge would not decide the matter fairly. Such a person would not draw this conclusion because the orders that the judge issued before the trial were made on consent.

[40] After the judge refused to recuse herself, she reasonably and fairly explained to the father that the trial was proceeding. When the father announced that he was leaving the courtroom, the judge encouraged him to stay and explained that he would be able to cross-examine the APCO supervisor. The judge told the father that this evidence would be important. The trial judge noted that the trial date had been fixed for a long time. The parties had requested the early trial date of the remaining access issue.

[41] The father declined to stay and told the judge to continue without him. Twice the judge suggested a 10-minute break so the father could consider his position. He declined the break. Despite the judge urging him to participate in the trial, the father refused and said he would wait outside. The father left and did not participate in the one-day trial. When he left, the father knew that the judge was not recusing herself and that the trial was going to proceed that day.

[42] In these circumstances, it was fair and reasonable for the judge to proceed in the father’s absence.

conclusion

[43] In summary, the appeal is dismissed.

[44] If the respondent mother is seeking costs of this appeal, she shall serve and file brief written cost submissions (maximum 6 pages) with a Bill of Costs. This shall be done by October 19, 2020. The father’s reply shall be served and filed by October 26, 2020 and shall be limited to 6 pages.

[45] Pursuant to the Notice to Profession, the parties may serve the cost submissions by email. The materials shall be filed electronically. The portal for filing materials is: https://www.ontario.ca/page/file-family-court-documents-online .

C. Horkins J.

Released: October 13, 2020

COURT FILE NO.: FS-19-13487

DATE: 20201013

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

K.M.

Appellant

– and –

Z.M.

Respondent

REASONS FOR JUDGMENT

C. Horkins J.

Released: October 13, 2020