Court File and Parties
Court File No.: FS-19-95682 Date: 2021-02-24 Superior Court of Justice – Ontario
Between: Mark Christopher Murakami, Applicant Counsel: Trevor Smith, for the Applicant
- and -
Cuirong “Stephanie” Murakami, Respondent Counsel: Diane Klukach, for the Respondent
Heard: February 19, 2021
Reasons for Decision
Lemay J.
[1] The parties are the parents of two children. One is almost six years old and the other turned four last November. The parties retained Elizabeth Hyde under a parenting coordination and arbitration agreement. They asked the Arbitrator to determine which of two schools the children should attend for the 2020/2021 school year. The Appellant wanted the children to attend Tall Pines, which is a Montessori school in Brampton. The Respondent wanted the children to attend Middlebury Public School, which is the local public school. The parties were unable to agree on this issue and, on November 20th, 2020, the Arbitrator determined that the children should attend Middlebury.
[2] The Appellant is appealing that decision, and the appeal is to be heard on April 19th, 2021. As an interim matter, the Appellant is seeking leave to introduce fresh evidence on the appeal. The fresh evidence concerns the Appellant’s purchase of a private school that he wishes the children to attend as well as his ability to drive the children to that school.
[3] The Respondent is opposed to the admission of this evidence, and argues that it does not meet any of the criteria for admissibility under either the test in R. v. Palmer, [1980] 1 S.C.R. 759 at 775 or the more relaxed test that is applied in family law where it involves issues relating to the best interests of the children.
[4] For the reasons that follow, the fresh evidence as I have defined it below may be admitted for the hearing of the appeal. The fresh evidence from the Appellant, however, is limited to the points I have outlined below.
Background Facts
a) The Marriage and the Children
[5] This brief factual summary is taken in large part from the Arbitrator’s award. The parties were married on May 26th, 2007 and separated on November 14th, 2017. The parties have joint custody of their two children, Oliver, who will be 6 next month and Carter who turned 4 in November of last year.
[6] The parties had resolved most of the issues between them. This resolution included the fact that Oliver would attend Middlebury for the 2019-2020 calendar year and Carter would attend a YMCA daycare.
[7] The minutes of settlement between the parties envisioned a parenting coordinating agreement. The actual parenting coordination agreement was entered into in August of 2020. The parties could not resolve the issue of where the children would go to school for the 2020-2021 school year.
[8] As a result of this disagreement, the parties appointed Elizabeth Hyde to arbitrate the dispute between them. She first attempted mediation and, when that failed, conducted an arbitration hearing into the issue of the children’s school for 2020-2021.
b) The Arbitrator’s Decision
[9] The parties had the opportunity to make submissions to the Arbitrator about whether the children should attend Tall Pines or Middlebury. The Arbitrator ultimately decided on Middlebury, and part of her reasons are as follows:
- Unlike the vast majority of cases cited, I consider the proximity of the two schools to both Mark and Stephanie’s home a considerable factor in the choice of schools. In traffic, the commute could be up to an hour each way. Considering the age and stage of development of both Carter and Oliver, this presents a significant hurdle to attendance at Tall Pines. While I view Mark’s commitment to do all of the drop offs and pickups as admirable and a large concession on his part, I don’t believe he is being realistic given that he has a new job in Oakville. I also cannot reconcile how Mark could pick up the children from Stephanie’s at 8:10 and drive almost 30 kms for an 8:30 start time. I also do not consider Mark’s current partner as a driving alternative.
- The evidence relating to each child’s aptitudes and abilities is limited to the evidence that Oliver’s teacher feels he is ahead of his classmates in task completion and the Carter has had some speech and language interventions in the past and may continue to in the future. Mark also suggests that as Carter is a November born child, he may be the youngest in his class and would benefit from the small teacher student ratio at Tall Pines. While Stephanie does not agree with this presumption, I believe that regardless of the individual aptitudes of either child, being in a class of 9 students versus 24 or 25 would be beneficial.
- While both parents believe in stability and continuity, they disagree on what that looks like. Mark’s arguments are in essence a proposal of what he believes will unfold if the children attend Tall Pines, if he remains in a stable relationship with Amanda and his new job is a flexible as he perceived. Stephanie’s arguments are based on the children’s currently reality. She has owned her current home for 2 years which is located near family and where the children have had their primary residence until July of 2020.
- While the issue of before and after school care has been addressed by Mark in his transportation submissions, I am not convinced this will be a manageable proposal given the proximity of Tall Pines to the children’s homes, the fact that Maricon does not drive and that Stephanie works in Toronto and Mark works in Oakville.
[10] At the time of the Arbitrator’s decision, the fresh evidence (which I will describe shortly) did not exist. The Appellant did not own the school, and there was no evidence that he was working there on a daily basis. Instead, at the time of the Arbitration, the Appellant was in negotiations to attempt to purchase the school. He did not rely on that fact in the course of the arbitration.
c) The Fresh Evidence
[11] In reviewing the record, it was difficult to pin down precisely what fresh evidence the Appellant was seeking to rely on. As a result, during the course of oral argument, I asked Mr. Smith to set out precisely what evidence his client was seeking to rely upon.
[12] The evidence that the Appellant is seeking to introduce for the hearing of this Appeal is as follows:
a) That the Appellant has become the controlling owner of Tall Pines School in Brampton. b) That Tall Pines School remains open during the pandemic. c) That the Appellant attends at Tall Pines school most days.
[13] The argument of this motion was limited to these pieces of evidence.
The Legal Principles and Their Application
[14] The parties did not really differ in their views of the relevant cases or legal principles on this motion. However, there was a significant difference between the parties in how these principles should apply. Therefore, I will begin my analysis by setting the relevant principles out.
[15] A party in a family law appeal may bring a motion to admit further evidence. That motion may be brought on the appeal of a variety of proceedings, including the appeal of an arbitration decision. See Family Law Rules, O. Reg. 114/99, Rule 38(29) and (46) as well as section 134(4)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43.
[16] The test for the admission of fresh evidence on an appeal is set out in Palmer, supra as follows:
a) The evidence should be admitted if it could not have been adduced at trial by due diligence; b) The evidence must bear upon a potentially decisive issue in the trial; c) The evidence must be credible in the sense that it is reasonably capable of belief; and d) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.
[17] The Ontario Court of Appeal has long accepted that a more flexible approach to fresh evidence is appropriate in cases involving the welfare of children. See Decaen v. Decaen, 2013 ONCA 218 and H.E. v. M.M., 2015 ONCA 813. The reasons that the Courts adopt this more flexible approach are helpfully summarized in Kurz J.’s decision in Spadacini-Kelvava v. Kelava, 2020 ONSC 3277 at paras. 67 and following.
[18] The manner in which this more flexible approach should be applied was outlined by Laskin J.A. in Ojeikere v. Ojeikere, 2018 ONCA 372 (at para 48). The proposed fresh evidence should be admitted if it:
a) Is credible; b) Could not have been obtained by reasonable diligence before trial or motion; c) Would likely be conclusive of an issue on the appeal.
[19] When these branches of the test are considered, it must be remembered that they are designed to be more flexible than the Palmer test. Therefore, the elements of the test that are similar to Palmer, such as credibility and whether the evidence would be conclusive of an issue on the appeal, should not be applied more strictly than they would be if the Palmer test was applied.
[20] With that fact in mind, I will now apply each of the three elements of the test to this evidence.
[21] I start with the evidence about ownership of the school and the Appellant’s ability to work in an office at the school. These were facts that were not considered by the Arbitrator because they did not exist at the time. As a result, there is no real argument that the Appellant was not duly diligent in putting these facts before the Arbitrator.
[22] The Respondent argues that this evidence is not credible and would not likely dispose of an issue on the appeal. There are problems with both of these arguments.
[23] First, with respect to the credibility issues, the Responding Affidavit from the Respondent raises a whole series of issues about the reliability and credibility of the fresh evidence and what inferences should be drawn from that evidence. While I accept that the Respondent may have some points to make about this evidence, it would appear that those arguments are best made on the merits of the appeal rather than on a fresh evidence motion.
[24] Second, there is the question of whether the fresh evidence would likely dispose of the appeal. Counsel for the Respondent argues that the key issue for the Arbitrator was the travel time for the children, and the fact that the Appellant was able to take the children to Tall Pines every day was a minor factor in the decision.
[25] There are two problems with this argument. First, even if it was a minor factor, the ability of the Appellant to take the children to Tall Pines was still a factor in the decision. Second, the Arbitrator herself acknowledged that this case was a close call. As a result, it is difficult to know whether any one piece of evidence would have been dispositive of either the Arbitration or the appeal.
[26] For the foregoing reasons, I conclude that the evidence about the ability of the Applicant to drive the children to school and his ability to work at the school is admissible on the appeal.
[27] This brings me to the evidence that the school was open during COVID. Counsel for the Respondent argues that this evidence is irrelevant now that the schools have re-opened in Peel Region. I disagree for two reasons:
a) The Appeals Judge will have to consider the factual record as it existed for the whole school year. b) The pandemic is not over, and the possibility of further closures continues to exist.
[28] As a result, I am of the view that the evidence that Tall Pines was open when the public schools were engaged in only remote learning is a piece of evidence that can be admitted on the appeal.
Conclusion
[29] For the foregoing reasons, I have determined that the following evidence may be relied upon by the Appellant at the hearing of the appeal:
a) That the Appellant has become the controlling owner of Tall Pines School in Brampton. b) That Tall Pines School remains open during the pandemic. c) That the Appellant attends at Tall Pines school most days.
[30] However, as I have set out above, it is not my role to determine whether this evidence will actually affect the outcome of the appeal. As a result, I am of the view that the costs of this motion should be left to the Judge hearing the appeal as they will be better positioned to determine whether the fresh evidence application should have been brought.
Lemay J. Released: February 24, 2021