COURT FILE NO.: FS-16-00412020-0001
DATE: 20210427
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Daniel Copeland
Applicant, Respondent in Appeal
– and –
Corinne Geller
Respondent, Appellant
Adam Black and Rebecca D. Organ, counsel for the Applicant/Respondent in appeal
Gary S. Joseph and Aria C. MacEachern, counsel for the Respondent, Appellant
HEARD: April 20, 2021
kiteley j.
[1] This is an appeal by the mother from two arbitration awards. For the reasons that follow, the appeal is dismissed.
Background
[2] The parties were married in February 2014. Their child N. was born March 1, 2016. The parents separated on May 14, 2016 when the Applicant left the matrimonial home. N. was 10 weeks old.
[3] The father started this proceeding on August 17, 2016.
Grant Arbitration Award
[4] The parents agreed to refer the parenting issues to Stephen Grant for mediation/arbitration. The mediation was conducted in January 21, 2018. In the absence of agreement, the arbitration hearing was conducted in June 2018 with four days of evidence and a fifth day of submissions. In paragraph 48 of his Award, the Arbitrator described the cross-examinations of the parents as “piercing”.
[5] By that point, N. was approximately 28 months old.
[6] In paragraph 107 of the Award dated July 31, 2018, the Arbitrator concluded that N.’s best interests were best served by having his primary residence with the mother on an incrementally increasing access arrangement with the father. In paragraph 109, he held that the father was entitled to and should have significant input on major decisions in N’s life. In paragraph 110, he concluded that to ensure that the father was not marginalized from N.’s life in any way, before making any major decisions, and after she has put the various options before the father, the mother was directed to solicit the father’s input. If the parties did not agree, the mother could make the final decision provided that she made her decision not arbitrarily or with any design or intention of thwarting the father’s parental role.
[7] In that Award, the Arbitrator significantly and immediately increased N.’s parenting time with his father. He established two phases:
Phase 1 between July 31, 2018 and August 31, 2019: on alternating weekends from Fridays at 5:00 p.m. until Sundays at 6:30 p.m.; every Tuesday from 4:30 p.m. overnight to Wednesday at 8:30 a.m.; and, on the weeks when N. did not have any weekend time with his father, on Thursdays from 4:30 p.m. until 7:30 p.m.
Phase 2 beginning September 1, 2019: alternating weekends from Fridays at 5:00 p.m. until Monday mornings at 8:30 a.m. or, if the Monday was a statutory holiday, until Tuesday mornings at 8:30 a.m.; every Tuesday from 4:30 p.m. until Wednesday at 8:30 a.m.; and on the weeks when N. did not have weekend parenting time with his father, on Thursdays from 4:30 p.m. overnight to Fridays at 8:30 a.m.
[8] In other words, effective September 1, 2019, N. resided with his father six out of fourteen nights.
[9] The Arbitrator also directed that a de novo review of the parenting arrangements was to take place on the second anniversary of the Award.
[10] That award was incorporated into the order of Akbarali J. dated May 2, 2019.
Kleinman Arbitration Award dated September 14, 2020 as to parenting
[11] In an introductory teleconference with counsel on February 11, 2020, the Arbitrator scheduled the hearing for five days commencing August 5, 2020 predicated on the delivery of affidavits by the parents to replace oral examination-in-chief. The parties signed the Arbitration Agreement dated June 11, 2020 appointing Michael B. Kleinman as the Arbitrator.
[12] The father’s affidavit, sworn June 12, 2020 included 186 paragraphs, 560 pages and 88 exhibits. The mother’s affidavit, sworn July 7, 2020 included 514 paragraphs, 955 pages and 135 exhibits. The parents each submitted form 35.1 affidavits and a form 13 financial statement. The written record was extensive.
[13] The hearing was conducted over four days in August, 2020 during which the Arbitrator heard from eight witnesses, including the parties who were subject to “rigorous” cross-examination. Evidence was also given by N.’s two former therapists (M.B. and C.J.P.), N.’s paediatrician (Dr. D.K.), N.’s teacher (S.Y.), a doctor who assessed N. for autism spectrum disorder (Dr. T.R.) and N.’s former nanny (M.G.S.A)..
[14] At the conclusion of the evidence, the parties agreed to make closing submissions in writing by August 21, 2020.
[15] At the time of the hearing, N. was approximately 4.5 years old.
[16] At the outset of the hearing, counsel noted that the parents did not agree as to the child’s schooling effective September 2020 and asked the Arbitrator to determine that issue in a timely manner. In paragraph 11 of the Award dated August 28, 2020, the Arbitrator wrote as follows:
Counsel emphasized that, under the Arbitration Agreement, I was not mandated to choose the child’s school but, rather, the parent who would have authority to make such decision. I see these issues as inextricably intertwined; N.’s best interests are paramount whether I choose the parent who shall make the decision or a parent’s preferred plan (or school).
[17] In paragraph 13 of the August 28th Award, the Arbitrator accepted the mother’s preferred plan that N. would return to the nursery school for half-days in the morning.
[18] Counsel agree that that Award does not impact this appeal.
[19] In his Award dated September 14, 2020, the Arbitrator dealt with the other issues that were the subject of the arbitration, namely decision-making and parenting schedule. The following are excerpts from that Award:
Custody (Decision Making):
4 . . . The starting point to the analysis must be that the Grant Award was both: (i) correct, and (ii) in the child’s best interests when it was made. . . .
Instead, whereas the Mother seeks to maintain the status quo, the Father seeks an award of parallel parenting whereby he would have decision-making authority over the most significant aspects of N.’s life on a final basis: academic/education, medical/health care and extra-curricular activities/programs. The Father describes his rationale as twofold: (i) to prevent his involvement in N.’s life from being “marginalized” and (ii) to ensure that he is not relegated to “second class parental status”.
It is my finding that the evidence does not support an objective finding that the Father is at risk of being marginalized from N.’s life – having particular regard to the fact that N. currently resides with the Father six out of every fourteen nights. . . .
I cannot find any evidentiary basis for the sweeping relief sought by the Father, namely, to wrest from the Mother the authority to make virtually all major decisions for the child on a final basis. . . .
Accordingly, the Grant Award, whereby the Mother has the privilege and responsibility of N.’s custody and the obligation to solicit and consider the Father’s input before making major decisions for the child, shall continue in force and effect.
Access to Information:
- The Mother is deserving of censure for having unreasonably and inappropriately attempted to control or interfere with the Father’s access to information about the child. . .
Communications:
Despite her authority to make final decisions for N., the Mother is cautioned against communicating such authority to the Father (and others) in an “accusatory, disrespectful, hostile and condescending” fashion. For the Mother to have conceded, in cross-examination, that (many of) her communications to the Father might be “excessive” or “overbearing” is an alarming understatement.
. . . the Father is not beyond reproach. . .
It is hoped that this Award will assist in moderating the tone, frequency and content of communications between the parties.
Residential Schedule:
I turn to the issue of N.’s residential schedule. The starting point, of course, is the current schedule whereby N. resides with the Father on six out of every fourteen nights. The Mother admits that N. is accustomed to the current arrangement which was implemented in September 2019 and is “working well”.
The Mother’s position with respect to N.’s residential schedule, however, is somewhat regressive. She argues that the status quo should be maintained without adjusting the amount or structure of time N. spends in the Father’s care. She describes N. as a “stubborn little guy” who is not very “adaptable” and who struggles with (and should therefore be shielded from) change, but then argues that N.’s time with the Father should be reduced next September, 2021, on the basis that the relative success of N.’s attendance for full days at a new school will be jeopardized.
The Father relies on the “maximum contact” principle found in section 16(10) [of the Divorce Act] in advocating for a shared or equal-time parenting schedule commonly known as “2-2-5-5” or a derivation thereof. . . .
The evidence supports a finding that N. enjoys a close, loving and bonded relationship with both parents. . . .
While there is no evidence (other than the Mother’s anxious speculation) to justify a reduction in the Father’s parenting time next September, there are at least two compelling reasons to support an equal-time residential schedule.
First, a recurring if not dominant theme in the evidence was the extent to which N. experiences certain (or greater) emotional and behavioural challenges while in the Mother’s care as opposed to the Father’s care. Such observations were noted by the parties (the Father in particular) as well as certain professionals such as CJP. It will be in N.’s interests to reside (slightly) more of the time with the Father.
Second, in my view, much of the conflict in this case should abate once N. resides with each party an equal amount of time. N. will benefit from knowing and experiencing: (i) that he has two (equal) homes and parents, and (ii) the consistency (in terms of days of the week) of residing with one parent every Monday and Tuesday, and the other parent every Wednesday and Thursday. An equal-time schedule will reduce the number of transitions in every 14-day cycle. The Father’s insecurity about being (treated as) a “second class” parent will be alleviated, as will the Mother’s anxiety about (what she and other have described as) the Father’s relentless, “scorched earth” approach to the parenting issues in this case. It is sincerely hoped that this Award will encourage the parties to lay down their proverbial swords.
I reject the Mother’s allegation that the shared parenting schedule sought by the father will represent a “drastic” or “seismic” change from the current schedule. The evidence does not justify rigid adherence to the “6 on 14” residential schedule implemented last September 2019, when N. was 3.5 years old. Indeed, an equal time schedule represents both a logical extension of and a contemplated result of the review mandated by the Grant Award.
That said, for many of the same reasons described in my Award dated August 28, 2020, and given the various challenges occasioned by N.’s return to (pre-) school after an extended absence and his recent diagnosis with Celiac disease (with attendant vigilance about and changes to his diet), I am not satisfied that immediate implementation of a 2-2-5-5 parenting schedule is appropriate. I also do not believe that deferral until next September 2021 (i.e., the start of the next school year) is necessary. It is accordingly my award that N.’s residential schedule transition to 2-2-5-5 after the March Break in 2021, shortly after N.’s 5th birthday.
Transitions:
One example of common ground between the parties is their preference or acknowledgment that transitions (that is, the changeover in parenting time from one party to the other) should occur at N.’s school, to the extent possible.
The Father’s evidence, although unsupported by documentary proof, is that he now and will continue to be available to pick up N. from nursery school at lunch time given his ability to work from home or his employer’s Toronto offices, as opposed to commuting to and from Mississauga.
Child Support:
The parties disagree as to whether N. should attend a faith-based, private school or his local public school (with perhaps additional faith-based instruction in the afternoon or on a weekend) starting in September 2021. To the extent the Mother makes the decision to enrol N. in a faith-based, private school, the narrow question is whether the corresponding expense is shareable under sub-section 7(1)(d), CSG.
. . . I would find the expense of private school to be reasonable. . .
. . there is no evidence as required under section 7(1)(d), CSG that a faith-based private school would meet N.’s “particular needs”.
I cannot accept the Mother’s aspiration, that “Jewish day school” education . . . constitut[es] necessity as required by s. 7(1), CSG.
[20] The Arbitrator attached the award as Schedule C in which he addressed the details arising from his conclusions with respect to the issues before him. He continued Phase 2 of the Grant award and added transitions at school on Monday, Wednesday and Friday mornings. Effective March 22, 2021, the parenting schedule was equal.
Kleinman Arbitration Award dated November 30, 2020 as to costs
[21] In the award dated November 30, 2020, the Arbitrator ordered that the mother pay costs in the amount of $25,000 inclusive of disbursements and HST, by January 31, 2021.
Issues in the appeal
[22] The mother filed a notice of appeal dated October 9, 2020 from the parenting award and an amended notice of appeal dated December 3, 2020 from the costs award.
[23] In the amended notice of appeal, the mother lists 19 grounds of appeal on parenting. Those are consolidated in paragraph 101 of her factum:
(a) whether the Arbitrator erred in law in his application of the best interests of the child test;
(b) whether the Arbitrator erred in law by concluding without expert evidence being provided by the father that the child’s emotional and behaviour challenges will be reduced by spending more time in the care of the father;
(c) whether the Arbitrator erred in law by concluding without evidence being provided by the father that much of the conflict between the parties should abate once the child resides with each party an equal amount of time.
[24] According to the submissions, the mother’s “overarching concern” is that the Arbitrator acted in the best interests of the father, that there was no evidence to support the view that spending more time with the father would be in his best interests, and that speculation is not the basis for changing the status quo.
[25] In paragraph 101 of the factum, the mother takes the position that the Arbitrator erred in law in awarding costs by failing to make an award that was proportionate and reflective of the result.
Analysis
A. Jurisdiction
[26] Pursuant to paragraph 13.1 of the Arbitration Agreement a party may appeal on a question of law, a question of fact and a question of mixed fact and law. Leave is not required.
B. Standard of review
[27] The Supreme Court articulated the standard of review in Housen v. Nikolaisen [2002 SCC 33] on which Mitrow J. expanded in a parenting case in Reati v. Racz [2016 ONSC 1967]. The passages that are particularly relevant in this case are as follows:
(a) on a pure question of law, the standard of review is correctness (para. 8);
(b) the standard of review for findings of fact is that such findings are not to be reversed unless the Arbitrator has made a “palpable and overriding” error (para. 11);
(c) the standard of review for factual inference is the same as for findings of fact, namely palpable and overriding error (para. 25);
(d) a question of mixed fact and law involves the application of a legal standard to a set of facts; where a decision-maker applies the wrong law to a set of facts, then this will constitute an error of law subject to the standard of correctness (para.27);
(e) matters of mixed fact and law lie along a spectrum; where a legal principle is not readily extricable so as to characterize the error as an error of law subject to the standard of correctness, then the matter is a matter of mixed fact and law subject to the more stringent standard of palpable and overriding error (paras. 36-37).
C. Appeal on parenting issues
[28] As indicated above, the mother takes the position that the Award should be overturned because the Arbitrator made three errors of law. The first step is to ascertain the nature of the alleged errors.
[29] In submissions the father took the position that all of the alleged errors were questions of fact or mixed fact and law and, in any event, at the end of the spectrum of more fact than law attracting the standard of palpable and overriding error. The mother took the position that they were errors of law; and if found to be mixed fact and law, they were at the end of the spectrum of more law than fact, attracting the standard of review of correctness.
[30] Judges and arbitrators apply the legal principle of the “best interests of the child” in making parenting decisions. Case law demonstrates that the decision-maker is required to review, analyze and consider the evidence provided by the parties from the lens of “best interests”. Decision-makers apply the legal principle of best interests of the child in the context in which the child and the parents are situated. It follows that the decision with respect to the “best interests of the child” is a decision of mixed fact and law. As referred to above, the legal principle of “best interests” is not readily extricable. Because that decision is largely driven by the factual findings, on the “spectrum”, the decision falls closer to review on the standard of palpable and overriding error. The appeal on the first ground is governed by that standard.
[31] The appeal on the second ground is based on the Arbitrator having made a decision without expert evidence. That engages two issues. The first is whether expert evidence is required and the second is whether the finding the Arbitrator made is an inference that was available on the facts. As framed, both aspects constitute questions of mixed fact and law, namely whether, on the facts, expert evidence was required and if not required, did the facts support the inference. On the “spectrum”, the initial issue is closer to a question of law but the subsequent issue is clearly a question of mixed fact and law. The standard of review engages both correctness and palpable and overriding error.
[32] The appeal on the third ground is a question of mixed fact and law. The Arbitrator made a finding that much of the conflict between the parties should abate once the child resides with each party an equal amount of time. The issue is whether he did so without evidence. That engages an analysis as to the evidence, the findings of fact, and the inferences from the facts. The appeal on the third ground is governed by the standard of palpable and overriding error.
[33] In the Award dated September 14, 2020, the Arbitrator attached Schedule C that provided, again, incremental increases in parenting time:
As of September 14, 2020:
(i) Every Tuesday, from 4:30 p.m., pick up at the front doorstep of the Mother’s home, overnight, until the next day, Wednesday, return to school, or if no school, 8:30 a.m. drop off at the front doorstep of the Mother’s home;
(ii) Every second Thursday (i.e., during those weeks when the Father does not have weekend parenting time with N.), from 4:30 p.m., pick up at the front doorstep of the Mother’s home, overnight, until the next day, Friday, return to school, or if no school, 8:30 .m. drop off at the front doorstep of the Mother’s home;
(iii) Every second weekend, from Friday at 4:30 p.m., pick up at the front doorstep of the Mother’s home, until
(1) Monday, return to school, or if no school, 8:30 a.m. drop off at the front doorstep of the Mother’s home, or
(2) If Monday is a statutory holiday, Tuesday, return to school, or if no school, 8:30 a.m. drop off at the front doorstep of the Mother’s home.
Starting March 22, 2021:
(i) N. shall reside with each of the parties every second weekend, from school dismissal on Friday (pick up at school) until:
(1) In the case of the Father, the following Wednesday, return to school, or if no school, 8:30 a.m. drop off at the front doorstep of the Mother’s home,
(2) In the case of the Mother, the following Monday, return to school, or if no school, 8:30 a.m. drop off at the front doorstep of the Father’s home,
(ii) For clarity:
(1) With the Father, every Monday and Tuesday; and
(2) With the Mother, every Wednesday and Thursday.
[34] As indicated above, after perfecting the appeal on February 5, 2021, the mother served a motion to stay the implementation of phase 2. That motion was scheduled to be heard on April 8. In the meantime, phase 2 started because there was no order to stay. The child has been operating under phase 2 for a month. In her appeal, the mother is asking that phase 2 stop and that the parenting schedule as of September 1, 2020 be reinstated and continue until August 1, 2021 at which point, she proposes a schedule to reflect her concern about school in September, 2021.
Did the Arbitrator err in his application of the best interests of the child test?
[35] The Arbitrator correctly identified the best interests of the child principle. The question is whether he made palpable and overriding errors in the application of the test.
[36] The Arbitrator found that the child enjoys strong relationships with both his parents. He noted that the starting point was that the Grant Award was correct. He referred to the incremental increases that had occurred. He noted the evidence of the mother that N. was accustomed to the arrangement that had been implemented in September 2019 and it was working well. He observed that there was no evidence to reduce the time N. spent with his father, which the mother advocated. On the other hand, there were two compelling reasons to support an equal-time residential schedule.
[37] There was evidence to support all of those findings of fact. The inferences that the Arbitrator drew from those findings of fact are sound.
[38] There is no basis for concluding that the Arbitrator made findings in the best interests of the father. I am not persuaded that the Arbitrator made palpable and overriding errors. The appeal on the first ground is dismissed.
Did the Arbitrator err in law by concluding without expert evidence being provided by the Respondent that the child’s emotional and behaviour challenges will be reduced by spending more time in the care of the Respondent?
[39] There are two aspects to this ground. On the first aspect, a decision-maker is not required to consider expert evidence prior to making a decision. As the Court of Appeal held in A.M. v. C.H. [2019 ONCA 764 at para. 36], expert assessments may be helpful but they are not a pre-requisite to making the order that is in the child’s best interests, based on all of the evidence at the end of the trial. Neither parent introduced expert evidence at the arbitration on that specific issue. Pursuant to paragraph 10.1, the parties agreed that the Arbitrator had jurisdiction to consider the necessity of retaining professional(s) and he did not do so. I am not persuaded that the Arbitrator made an error of law in deciding the case without expert evidence.
[40] The second aspect of this ground of appeal is whether, on the evidence that was available, the Arbitrator drew an inference that the child’s challenges would be reduced by spending more time in the care of the father. This follows from the conclusions reached above that spending more time was in the best interests of the child. I am not persuaded that the Arbitrator made palpable and overriding errors in drawing that inference.
Did the Arbitrator err by concluding without evidence being provided by the Respondent that much of the conflict between the parties should abate once the child resides with each party an equal amount of time?
[41] The Arbitrator heard substantial evidence regarding the conflict between the parties during transitions at the entrance to the mother’s home and in the father’s car. That evidence demonstrated the distress that N. suffered as a result of that conflict.
[42] Courts have frequently drawn inferences from such facts that reducing conflict is essential. Notable examples are Young v Young 1993 34 (SCC), [1993] 4 SCR 3; and PCP v LCP, 2013 ONSC 2564 at para. 25.
[43] I am not persuaded that the Arbitrator made a palpable and overriding error in making a schedule that reduced transitions between the parents and established the neutral location of the school. The appeal on that ground is dismissed.
Conclusion on the appeal on the record before the Arbitrator
[44] In my view, none of the grounds of appeal have merit. The reality is that the mother does not agree with the outcome of the arbitration. She is largely challenging findings of fact or findings of mixed fact and law.
[45] This is also evident in paragraphs 145-150 of her factum (clarified in the Joint Confirmation dated April 22, 2021) where she summarized the relief she sought that included adding or replacing terms of the Award. The only basis for those requests is that she did not agree with the Award.
[46] In two paragraphs excerpted above, the Arbitrator used the word “hoped”. The mother referred to the decision in VandenBrink v. VandenBrink 2020 ONSC 5689 where at paragraph 29, the court held as follows:
Respectfully, I am not persuaded that the children’s lives should be fundamentally changed by the imposition of a 50-50 shared parenting schedule at this point. To my mind, that would be a very significant change for the children. Without any history or real experience with such arrangements, it is not clear to me how that would be in their bests interests. Indeed, to suggest that the children should now follow a 2-2-3 scheduled is to suggest that, essentially, we should experiment with the children’s lives and hope for the best. We do not experiment with children’s lives. And hope is not a strategy.
[47] I agree with that conclusion. But the facts of that case make it clear that the evidence did not support a 50-50 parenting schedule. In this case, the evidence demonstrated that the parenting schedule had been incrementally increased, the mother acknowledged that phase 2 of the Grant Award was appropriate although she advocated for a reduction, and there were compelling reasons to expand it to equal parenting time. The references to “hope” by the Arbitrator in paragraphs 26 and 34 bear no resemblance to the sentiments expressed in VandenBrink.
Motion by mother for leave to file fresh evidence
[48] Having found that there are no grounds to appeal the Award on the record, I turn to whether there is fresh evidence that requires reconsideration of the findings made and inferences drawn by the Arbitrator.
[49] In R. v Palmer 1979 8 (SCC), [1980] 1 S.C.R. 759, the Supreme Court articulated the test for the admissibility of fresh evidence, namely that it should be admitted if, by due diligence it could have been adduced at trial; it must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial; it must be credible, in the sense it is reasonably capable of belief; and 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.
[50] I accept the parties’ submissions that it is in the interests of justice that courts adopt a flexible approach to acceptance of “fresh evidence” relevant to the best interests of the child in both child protection and parenting decisions. [Decaen v Decaen 2013 ONCA 218, para. 13; H.E. v. M.M., 2015 ONCA 813, para. 71; Hughes v. Roy, 2016 ONCJ 65, para. 11] However, as indicated in paragraph 72 of H.E. v. M.M., the evidence must nonetheless meet the Palmer test.
[51] The mother filed her original notice of appeal dated October 9, 2020 and on December 3, 2020 she filed her amended notice of appeal. She perfected the appeal on February 5, 2021. The Trial Co-ordinator scheduled the appeal to be heard on June 8, 2021.
[52] The Arbitrator directed that the equal parenting schedule would begin in March 2021 in the expectation that March break would be during the week of March 15, 2021. By that point, N. would have reached his 5th birthday.
[53] In February 2021, the Government of Ontario cancelled the school break in March and scheduled it for the week of April 12, 2021. The parties disagreed whether the date for the equal parenting schedule would take effect as the Arbitrator indicated in the Award, or at the end of the re-scheduled break in April. In the absence of agreement, the father introduced the equal parenting schedule effective March 22, 2021.
[54] The mother served a motion to stay the Arbitration Award pending the hearing of the appeal in June 2021 and to allow her to file fresh evidence in the appeal.
[55] On April 8, 2021, those motions were before Kraft J. In her endorsement dated April 12, 2021, she made these orders:
In light of the seriousness of the issues before the court, it was determined that the mother’s appeal of the Kleinman Awards be scheduled as soon as practicably possible and that motion to stay the Awards pending the hearing of the appeal be vacated today.
Accordingly, this Court makes the following order:
c. The father may serve and file responding material, as fresh evidence to be used on the mother’s appeal, to address only the contents of the affidavit of M.B. sworn on April 1, 2021.
d. The agreed-upon fresh evidence shall be admitted as evidence on the mother’s appeal of the Kleinman Awards, including;
i. The affidavits of the mother sworn on March 2, 2021 and March 24, 2021;
ii. The affidavits of the father sworn on March 17, 2021;
iii. The affidavits of S.Y., sworn on March 2, 2021 and March 24, 2021;
iv. The affidavit of M.B., sworn on April 1, 2021, subject to the father’s positions and arguments as to whether this affidavit is proper fresh evidence, proper evidence, to be argued at the appeal hearing; and
v. The responding affidavit to be filed by the father in response to M.B.’s affidavit, referred to in c. above.
[56] At the time of the hearing before Kraft J., the parents had submitted two affidavits, one in respect of the stay motion and one in respect of the fresh evidence motion. On the appeal, counsel referred to the following:
(a) Affidavit of the mother dated March 2, 2021 (item B25)
(b) Affidavit of S.Y. dated March 2, 2021 at request of mother (item B28)
(c) Affidavit of the father dated March 17, 2021 (item A14)
(d) Affidavit of the mother dated March 24, 2021 (item B16)
(e) Affidavit of S.Y. dated March 24, 2021 at request of mother (item B27)
(f) Affidavit of S.Y. dated March 24, 2021 at request of father (item A14)
(g) Affidavit of M.B. dated April 1, 2021 at request of mother (item B29)
(h) Affidavit of C.J.P. dated April 15, 2021 at request of father (item A14)
(i) Affidavit of the father dated April 16, 2021 (item A14).
[57] The mother takes the position that the “fresh evidence” is relevant to two points. The first is that the Arbitrator made a finding that a change in the parenting schedule should be made without evidence to support that the change was in the best interests of the child. The second was that the Arbitrator found that the conflict between the parents would abate once the child resides with each party an equal amount of time. The mother submits that the fresh evidence shows that the change that took effect March 22, 2021 is not working and is, in fact, not in the best interests of the child. She relies on the affidavit of M.B. that purports to report the wishes of the child to return to the “prior schedule”, i.e. the schedule that applied until March 22, 2021.
[58] The order that Kraft J. made to reflect the agreement that some of that evidence would be admitted on the appeal is a procedural order. The judge hearing the appeal must nonetheless perform the substantive gatekeeping function and consider whether the evidence meets the Palmer test and whether it is in the best interests of the child that it be admitted.
[59] The controversy is with respect to the affidavit of M.B. sworn April 1, 2021.
[60] M.B., the child’s former therapist had given evidence at the hearing in August. At the request of the mother, M.B. provided an affidavit sworn April 1, 2021. The father takes the position that the affidavit is not admissible and if found admissible, it should be given no weight.
[61] In her capacity as therapist, M.B. was a witness at the arbitration, having last seen N. and his father on March 3, 2020. In her affidavit sworn April 1, 2021, she said she had become “re-involved with the family” and that, in the week preceding her affidavit, she had had two appointments in the week preceding her affidavit and she met with the father.
[62] The change to the parenting schedule started on Monday March 22. M.B. had a zoom appointment with the mother and N. on Friday March 26, which was 4 days after the changed schedule, and an in-person meeting with the mother and N. on Wednesday March 31, which was 9 days after the change. She met with the father on Monday, March 29. She did not meet with the father and N. before she signed the affidavit.
[63] In her affidavit M.B. deposed that she “had been informed by N. and [did] verily believe that he would like to return to the previous schedule”. She expressed these opinions: the change in parenting schedule was “a big change”; she recommended “a more gradual increase to allow N. time to adjust to the changes”; she was “surprised to learn that the change to the parenting schedule was very sudden as that is not in N’.s best interests”; that N. “needs to be with” his mother; that the change as a result of the arbitration was “too drastic and not healthy”; and that “N. was too little for the change”.
[64] The mother takes the position that M.B.’s opinion evidence is admissible as she is a “participant expert”, defined in Family Law Rule 20.2 as a person who is not engaged to provide expert opinion evidence for the purposes of litigation, but who provides expert opinion evidence based on the exercise of her skills, knowledge, training or experience while observing or participating in the events at issue. The father takes the position that she is not a participant expert and that her evidence is not reliable and should not be admitted.
[65] I agree with the father that M.B. is not at this time a “participant expert” within the meaning of Family Law Rule 20.2. In her evidence, she says she “became re-involved with the family”. She did not say that she had accepted a request by the mother to resume therapy with the child. She did not say that she engaged in therapy. She saw N. twice and based on what is in her affidavit, it was to give the mother an opportunity to raise her objections to the Award and an opportunity for M.B to question N. about a change in the schedule, the issue which is the subject matter of the appeal.
[66] The affidavit dated April 1 is based on two meetings with N. during which mother was present and no meetings involving N. and the father. In that respect it is one-sided. Indeed, at the hearing in August, 2020, M.B. expressly acknowledged the importance of meeting with N. individually with each parent. She also acknowledged that N. experiences loyalty conflicts when he is in the presence of one parent.
[67] Although required by rule 20.2, M.B. did not “observe or participate” in therapeutic events. She apparently was a witness to a statement that a 5 year old purportedly made in the presence of his mother who orchestrated the meeting. The only inference to draw is that the mother sought out a professional who had had some historical involvement with the child with the hope that the professional would support her in her appeal. Sadly, M.B. became an advocate for the position advanced by the mother. I conclude that the evidence in her affidavit is unreliable. M.B. does not qualify as a “participant expert” at this time. The affidavit sworn April 1, 2021 is not admissible.
[68] On its own, the affidavit of M.B. is not admissible. In his affidavit sworn April 16, 2021, the father gave evidence that provides further concerns about the independence that is expected of all experts, including participant experts. The father deposed that when they met on March 29, M.B. said she would give all of her notes and observations of any sessions with N. regardless of who brought N. to the session. However, when asked for the notes, M.B. said that, “as N.’s psychotherapist, she was respecting N.’s wishes for confidentiality” and would not share them. According to Family Law Rule 20.02(14)(ii), a participant expert must, at the other party’s request, provide a copy of any documents supporting the opinion evidence the participant expert plans to provide. In addition, the father deposed that M.B. refused to provide an affidavit after she met with the father and N. on April 12.
[69] Without authorization from Kraft J., the father had filed an affidavit of C.J.P, N.’s other therapist who had also given evidence at the arbitration. He had reached out to her to get her “perspective”. In her affidavit, she related the events that occurred from when the father contacted her to receiving an email dated April 12, 2021 from the mother which indicated that “only [the mother] had custody of N. and that [the mother’s] consent was required for any appointment regarding N.” The mother also wrote that “I do not think its in N.’s best interests nor appropriate for N. to be paraded around different therapists for the purposes of a court proceeding.” This evidence does not meet the Palmer test and cannot be admitted under the “flexible approach” to evidence. However, I infer from that affidavit that the mother refused to let N. see C.J.P. because she wanted to ensure that there was no opinion evidence that might conflict with the evidence of M.B., which serves to reinforce my conclusion that M.B. is not a participant expert for purposes of this appeal.
[70] Initially the mother objected to the court receiving that affidavit but in submissions, her counsel indicated that he did not “have a great problem with having it available. I find that it is not admissible as fresh evidence.
[71] As indicated above, the evidence filed is significant in numbers and in pages. There are only two aspects of the evidence that meets all of the four Palmer criteria. The first is the third affidavit of S.Y., the teacher at the nursery school. The father had alerted her to the transition that would take effect on March 22. She signed an affidavit indicating that in that first week, she did not observe any change in N.’s behaviour. She sent an email to that effect in which she confirmed that she would keep communicating with both parents on a regular basis and would let them know if she saw any change in his behaviour. That is fresh evidence in the sense that it did not exist at the time of the hearing in August, 2020, it is relevant to a decisive issue in the hearing, namely the next phase of the schedule, and it is credible. The irony is, however, that it serves to reinforce the decision of the Arbitrator, not undermine it.
[72] The second aspect is the evidence of the father with confirmation from his employer that he could continue to work from home indefinitely. As indicated paragraph 38 above, the Arbitrator had accepted the father’s evidence that he was then and would continue to be available to pick up N. from nursery school at lunch time. That evidence was given and relied on about five months into COVID-19. Thirteen months after the World Health Organization declared a pandemic, the father’s employer has confirmed that that will continue. That qualifies as fresh evidence under the Palmer test and reinforces the Arbitrator’s acceptance of that evidence without written corroboration.
[73] With the exception of the evidence in writing confirming that the father is fully engaged in working at home, and the evidence of S.Y. that the transition went well, I do not find that the evidence constitutes “fresh evidence”. It primarily consists of the mother taking issue with the findings in the Award. Even on the “flexible approach” to evidence, the court cannot justify finding it is admissible.
Appeal on Costs
[74] Given the dismissal of the appeal, I am not persuaded that the Arbitrator made a palpable and overriding error on costs.
Costs of the Appeal and of the Motions heard April 8, 2021
[75] In her endorsement dated April 12, 2021, Kraft J. reserved the costs of the motion to stay. If the parties are unable to agree on costs of the attendance on April 8 or the costs of the appeal, they will make submissions indicated below.
ORDER TO GO AS FOLLOWS:
[76] The appeal from the Awards of the Arbitrator dated September 14, 2020 and November 30, 2020 is dismissed.
[77] The mother shall pay the costs required by the November 30, 2020 Award by June 27, 2021.
[78] The parties shall make written submissions not exceeding three pages plus costs outline and offers to settle, if any, on this schedule:
(a) the Respondent by May 14, 2021;
(b) the Applicant by May 28, 2021.
[79] This order takes effect immediately and without issuance of a formal order.
[80] Counsel may forward an approved draft order to my attention.
Kiteley J.
Released: April 27, 2021
COURT FILE NO.: FS-16-00412020-0001
DATE: 20210427
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Daniel Copeland
Applicant, Respondent in Appeal
– and –
Corinne Geller
Respondent, Appellant
REASONS FOR JUDGMENT
Kiteley, J.
Released: April 27, 2021