



COURT OF APPEAL FOR ONTARIO

CITATION: Kagan v. Brown, 2019 ONCA 495

DATE: 20190617

DOCKET: C65004

Tulloch, Roberts and Miller JJ.A.

BETWEEN

Jennifer Laura Kagan
    (Brown)

Appellant (Respondent)

and

Robin Allan McLean Brown

Respondent (Applicant)

Robert Karrass
,
    for the appellant

Elliot Vine, for the respondent

Heard: June 3, 2019

On appeal from the order of Justice Douglas Gray of the
    Superior Court of Justice, dated January 24, 2018.

REASONS FOR
    DECISION

[1]

The appellant appeals from the parenting schedule set out in the final
    order of the trial judge.  The appellant takes no issue with the other
    provisions of the final order in relation to custody, equalization and child
    support.

[2]

After an 11-day trial, the trial judge ordered that the respondent have
    greater contact with the parties now four-year-old daughter, K., including
    extended overnight visits during weekends and holidays.

[3]

The appellants main submission is that the trial judge erred in failing
    to follow the recommendations of the expert assessor respecting the parenting
    schedule, specifically, the gradual increase of overnight and holiday access. 
    The appellant submits that their daughter is distressed by the present schedule
    because it provides for too much time away from her mother while she is very young. 
    In support of this submission, the appellant seeks to file new opinion evidence
    from a clinical psychologist.  The appellant submits that the trial judge
    imposed the parenting schedule to punish her for moving a fair distance away from
    the respondent after the marriage breakdown.

[4]

We do not accept these submissions.

[5]

We start from the well-established principle that the trial judges
    determination of the appropriate parenting schedule is firmly within his
    discretion and that absent palpable and overriding error or error in principle,
    appellate intervention is unjustified:
DAngelo v. Barrett
, 2016 ONCA
    605, at para. 7.  We see no such error here.

[6]

The trial judge thoroughly reviewed the relevant evidence and carefully
    crafted a reasonable parenting schedule that took into account the particular
    circumstances of the parties and, most important, the best interests of their
    child.  The latter required that he give effect to the maximum contact
    principle under s. 16(10) of the
Divorce Act
, R.S.C. 1985, c. 3, that
    a child of the marriage should have as much contact with each spouse as is
    consistent with the best interests of the child.

[7]

We disagree that the trial judges order disregards the assessors
    recommendations or is punitive against the appellant.  While he could accept
    all, none or part of the assessors recommendations, it was the trial judges
    ultimate responsibility to fashion an appropriate parenting schedule in the
    best interests of the parties daughter, which reflected his consideration of
    all relevant circumstances:
DAngelo
, at para. 8.  That is precisely
    what he did here.

[8]

The trial judge recognized that the unfortunately toxic relationship
    between the parties made communications and co-operation between the parties very
    difficult, such that the 50/50 parenting model recommended by the assessor
    would not work.  As a result, he granted decision-making authority to the
    appellant and created a parenting schedule that has the parties daughter spend
    most of her time in her mothers care.   The trial judge nevertheless
    appreciated, as the assessor also observed, that the parties are excellent
    parents who are devoted to their daughter.  As a result, he determined that granting
    increased access to the respondent, including overnight and holiday access,
    would be in the best interests of their young child.  His parenting schedule properly,
    fairly and thoughtfully reflects all of these considerations.  These
    considerations had not materially changed by the time of the September 21, 2018
    review.  There is no basis to interfere with the parenting schedule on appeal.

[9]

As fresh evidence regarding the current effect of the parenting schedule
    on the parties daughter, the appellant seeks to rely on the report of Dr. Liza
    Weiser, dated February 8, 2019.  We would admit the fresh evidence given that
    it is tendered in relation to the issue of the best interests of K. As Benotto
    J.A. observed in
Goldman v. Kudelya
, 2017 ONCA 300, at para. 25:

The
Palmer
criteria are
    more flexible where an appeal involves the best interests of a child, and it is
    important to have the most current information possible when determining the
    childs best interests [g]iven the inevitable fluidity in a childs
    development:
Childrens Aid Society of Owen Sound v. R.D.
(2003),
    2003 CanLII 21746 (ON CA), 178 O.A.C. 69, at para. 21.

[10]

Dr.
    Weiser is a clinical psychologist who has seen the parties daughter on eight
    occasions between September 26, 2018 and February 4, 2019.  The report mostly
    describes Dr. Weisers observations and summary of K.s feelings when she is
    with her parents and makes recommendations as to how communications between her
    and her parents can be improved when K. is away from each of them. 
    Importantly, Dr. Weiser notes that K. has been able to express how she misses
    both parents when she is not with either one of them, but she struggles more
    with missing her mother during her time with her father; often worrying if her mother
    knows where she is when she is not with her.  While Dr. Weiser does opine that
    K. will become distressed when away from her mother, she also notes that this
    distress can be alleviated by contact with her mother.  She forecasts that K. will
    become tremendously distressed if she has to endure a prolonged separation from
    her mother, by which at her age would be no more than five consecutive days.

[11]

In
    our view, Dr. Weisers report would not have changed the parenting schedule
    ordered by the trial judge.  It is important to remember that Dr. Weisers
    observations were made when K. was three years old and speaks to the effect of
    separation from her mother as at that age.  She gives no opinion as to the
    effect of such a separation when K. is 6, when the first month holiday with her
    father is proposed to occur under the parenting schedule.  Moreover, any
    concern about distress appears to be mitigated by the communication and other
    techniques that Dr. Weiser advocates for K.s comfort.

[12]

Finally,
    the appellant seeks leave to appeal the trial judges costs orders.  We see no
    error in the trial judges orders that holistically took into account the
    parties respective successes over the entirety of these hard-fought and
    protracted proceedings.

[13]

For
    these reasons, we dismiss the appeal.

[14]

The
    respondent is entitled to his partial indemnity costs in the amount of $10,000,
    inclusive of disbursements and applicable taxes.

M.
    Tulloch J.A.

L.B.
    Roberts J.A.

B.W.
    Miller J.A.


