



COURT OF APPEAL FOR ONTARIO

CITATION: Jackson v. Arthur, 2015 ONCA 902

DATE: 20151218

DOCKET: C60207

MacPherson, Sharpe and van Rensburg JJ.A.

BETWEEN

Kurt Delroy Jackson

Applicant (Respondent)

and

Vida E. Arthur

Respondent (Appellant)

Anthony Macri, for the appellant

Robert A. Fernandes, for the respondent

Heard: December 17, 2015

On appeal from the order of Justice Leonard Ricchetti of
    the Superior Court of Justice, dated February 23, 2015.

ENDORSEMENT

[1]

The appellant mother, Vida Arthur, appeals the Order of Ricchetti J. of
    the Superior Court of Justice dated 23 February 2015, awarding sole custody of
    two children (ages 12 and 9) to the respondent father.

[2]

At trial, the parties agreed that the best custodial arrangement for
    their two children was sole custody to one parent because of their deeply
    acrimonious and dysfunctional relationship. After a seven day trial, the trial
    judge awarded sole custody to the respondent with generous access to the
    appellant. The appellant appeals on several grounds.

[3]

First, the appellant submits that the trial judge erred by hearing
    evidence in the absence of the self-represented mother. After the first two
    days of trial, the appellant did not show up for the third day. She went to
    hospital but did not contact anyone at the court to explain her absence. The
    court made unsuccessful efforts to find her. In these circumstances, the trial
    judge allowed the trial to continue. The fathers final witness testified. The
    appellant submits that the trial judge should have adjourned the hearing, at
    least for a day.

[4]

We do not accept this submission. The appellant made no effort to
    contact the court for six days. Moreover, the fathers final witness testified
    about property issues which are not relevant to this appeal.

[5]

The second ground of appeal relates to comments made by the trial judge
    once the trial resumed following a ruling by the trial judge. The appellant
    asserts that the trial judges comments created a reasonable apprehension of
    bias. The source of this bias was the trial judges comments blaming the
    appellant for her absence from the trial and his unwarranted skepticism about
    her explanation for her absence.

[6]

We disagree. When the trial resumed, the appellant was represented by
    counsel who made no objection based on the discussion between the trial judge
    and counsel about how the trial would proceed given that the appellants new
    counsel would need some time to prepare. We have reviewed that discussion and see
    nothing even troubling about the trial judges comments; they certainly are far
    removed from raising a legitimate issue of potential bias.

[7]

Third, the appellant asserts that the trial judge demonstrated bias by
    ordering an equal division of parenting time once the trial resumed.

[8]

We do not accept this submission. In his June 30, 2014 endorsement, the
    trial judge said:

Ms. Arthurs counsel does not dispute an equal division of
    parenting. The only dispute is when this starts as it may affect the total
    number of weeks to one parent.

There will be an equal parent time until further order of this
    court. Commencing Thurs. July 3, 2014 the father shall have one week with the children.
    The change in parenting time shall be exchanged every Thursday. To be clear, this
    will continue until further order of this court.

[9]

In our view, this order reflects the parties shared view at the time it
    was made. On this appeal, the appellant concedes that she supported this order
    for the period of summer 2014. However, she asserts that she did not agree that
    it continue once school resumed. The answer to this submission is that the
    appellant could have invoked the until further order of the court portion of
    the order to raise this issue. She chose not to do this. Nor did she raise any
    objection relating to apprehension of bias.

[10]

Fourth,
    the appellant contends that the trial judge erred by ignoring evidence of the
    appellants good parenting and by failing to give sufficient weight to evidence
    relating to domestic violence in the parties relationship.

[11]

These
    were factual issues. The trial judge did not ignore evidence of the appellants
    good parenting. Indeed, his ultimate conclusion was that both parents were good
    parents and could be given sole custody. On the fathers violence issue, the
    trial judge accepted the evidence of Peel Childrens Aid Society that the
    fathers inappropriate disciplining of the Children has been dealt with.

[12]

Fifth,
    the parties agree that there was a miscalculation of child support arrears up
    to July 1, 2014. The correct number is $15,120.25.

[13]

The
    appeal is dismissed on all issues but one. On arrears of child support, the
    amount owed by the respondent to the appellant on July 1, 2014 was $15,120.25.

[14]

The
    respondent has been substantially successful on the appeal. He is entitled to
    costs of the appeal fixed at $6,800, inclusive of HST and disbursements.

J.C.
    MacPherson J.A.

Robert
    J. Sharpe J.A.

K. van
    Rensburg J.A.


