



COURT OF APPEAL FOR ONTARIO

CITATION: Mattina v. Mattina, 2018 ONCA 641

DATE: 20180718

DOCKET: C65148

Epstein, Lauwers and van Rensburg JJ.A.

BETWEEN

Vincenzo Mattina

Applicant (Appellant)

and

Raffaella Mattina

Respondent (Respondent)

Martha McCarthy, Maureen Edwards and Lauren Hanna, for
    the appellant

Salvatore Garcea and Gloria Nardi-Bell, for the
    respondent

Heard: June 25, 2018

On appeal from the order of Justice Randolph Mazza of the
    Superior Court of Justice dated September 26, 2017, with reasons reported at
    2017 ONSC 5704 and the costs order dated April 3, 2018.

Epstein J.A.

[1]

The appellant father appeals the September 2017
    custody and access order concerning his three sons. At the time of the decision
    S was 17, N was 15 and A was 10 years of age. Among other things, the motions
    judge made no order for custody of S, gave the respondent mother custody of N
    and A, with the fathers access and communication with N at Ns discretion and
    the fathers access and communication with A, at As discretion and in
    consultation with the mother.

[2]

The father appealed the decision to the
    Divisional Court. In reasons dated March 7, 2018, and as an unfortunate
    consequence of the arbitrary and confusing appeal routes in this province, the
    Divisional Court held that it did not have jurisdiction over the matter and
    transferred the appeal to this court on an expedited basis.

[3]

Based on the following analysis, I would dismiss
    the appeal.

OVERVIEW

[4]

The parties were married in 1998 and separated
    in 2013. This proceeding was commenced by the father in June 2013. In the
    course of the application, on consent of the parties, the court ordered a
    custody and access assessment under s. 30 of the
Childrens Law Reform Act
,

R.S.O. 1990, c. C.12. Michelle
    Hayes completed this assessment on July 24, 2014, and provided the court with a
    lengthy and detailed report. Ms. Hayes provided an updated s. 30 assessment report
    on May 25, 2015.

[5]

The application was placed on the trial list. For
    various reasons, it took several years for the parties and the court to deal
    with the issues of custody and access. Unfortunately, in the meantime, the
    father and the children have had very limited contact. In fact, since the parents
    separation in 2013, the father appears to have had access to the children fewer
    than five times.

[6]

The father believes that the mother has
    alienated the children from him. The mother denies this. Her view is that the
    fathers conduct is to blame for the childrens refusal to see him.

[7]

When the father learned that it was unlikely the
    trial would be reached in June 2017 he brought a motion seeking sole interim
    custody of the children for 90 days (with no access to the mother during this
    blackout period), and an order directing that during this period of interim
    custody the parents and children participate in a program known as Family
    Bridges. In the alternative, the father sought an order for a directed trial on
    custody and access, with evidence to be presented by Ms. Hayes and Dr. Barbara Jo
    Fidler, an expert on parental alienation who would testify about the Family
    Bridges program. In response, the mother brought a summary judgment motion
    seeking sole custody of the three children, with access to the father at the
    discretion of the children.

[8]

The motions were heard on August 22, 2017. In
    September 2017 the motions judge granted summary judgment in relation to all
    three children. First, he dismissed the fathers motion regarding S because within
    a few weeks of the release of the decision S would turn 18 and no longer be within
    the courts jurisdiction. The motions judge went on to give sole custody of N and
    A to the mother. He ordered that access and communication between the father
    and N would be at Ns discretion; access and communication between the father
    and A would be at As discretion in consultation with the mother. The motions
    judge awarded costs to the mother fixed in the amount of $80,636 plus HST.

ANALYSIS

(1)

The appeal of the custody and access order

[9]

The father argues that the procedure followed by the
    motions judge was unfair. He advances several arguments stemming from the
    motions judges decision to proceed by way of summary judgment rather than
    directing a trial to hear
viva voce
evidence
    from Ms. Hayes. The father also contends that
the motions judge erred in
    failing to attach sufficient weight to the s. 30 assessment, and in
his factual finding that there was no evidence that the mother had
    influenced the children and had undermined their relationship with him.  The
    father further argues that the motions judge erred in law by failing to
    adequately consider the best interests of the children and the principle of
    maximum contact.  Last, the father submits that
his s. 7 and s. 11(b)
Charter

rights were infringed.

[10]

I would not give effect to these arguments.

Appropriateness of summary judgment

[11]

Rule 16 of the
Family Law Rules
provides for the summary judgment procedure to be available to the
    parties and the court in any case other than divorce. The court may make a
    final order if there is no genuine issue requiring a trial of a claim or
    defence. In response to questions by the motions judge, counsel for
both
parties were firm in their position that the record contained
    sufficient evidence to determine the issues by summary judgment. The motions
    judge was satisfied that the record permitted him to make a final order with
    respect to the childrens custody and access.
There was no requirement
    to allow the s. 30 assessor to give
viva voce
evidence, as the father contends.
    The motions judge reasonably concluded that he required no further
    clarification or elaboration of her report. T
he motions
    judges decision to proceed by way of summary judgment is owed deference and I
    would not interfere with it in the circumstances:
Hryniak v.
    Mauldlin
,
2014 SCC 7,
    [2014] 1 S.C.R. 87,

at para. 81.

Expert
evidence

[12]

The father argues that
the motions judge
    erred in failing to attach sufficient weight to the s. 30 assessment and in
his factual finding that there was no evidence that the mother had
    influenced the children and had undermined their relationship with the father.

[13]

First,
    the law is clear that a trial judge should not delegate decision-making to an
    assessor:
Behrens v. Stoodley
(1999), 128
    O.A.C. 58, at para. 40.
An assessors evidence is but one piece of
    evidence to consider:
Woodhouse v. Woodhouse

(1996), 29 O.R. (3d) 417
    (C.A.),

at p. 435.

[14]

I
    do not agree with the fathers assertion that the motions judge departed from
    the recommendations of the assessor in the order he made. The assessors first
    report recommended that the father and the children engage in an intensive
    therapeutic weekend with a therapist as facilitator. Notwithstanding a court
    order, the children refused to attend. The second report noted the ongoing
    therapeutic interventions in the family, including the involvement of the
    Catholic Childrens Aid Society, and concluded that gaining the childrens
    voluntary participation in a therapeutic process would be difficult, if not
    impossible. The assessor recommended a therapeutic process of parent-child
    interaction therapy, and suggested some therapists, including Dr. Siegi
    Schuler. Consistent with that recommendation the parties retained Dr. Schuler,
    who, in an April 7, 2016 letter to the father, recommended the suspension of
    services until such time as the children expressed a desire to undergo therapy.
    The motions judge clearly considered and indeed relied on many aspects of the
    assessors reports. He also considered the steps that were taken by the parties
    and the children since the reports were issued.

[15]

Here,
    where the childrens voluntary participation in therapeutic measures intended
    to restore access to their father was unlikely (an opinion expressed by the s.
    30 assessor) the motions judge had to consider what order respecting custody
    and access was in the childrens best interests. He carefully considered the
    evidence, including what was outlined in the s. 30 reports.

[16]

I
    turn to the fathers assertion that the motions judge erred in
finding that there was no evidence that the mother had influenced the
    children and had undermined their relationship with the father. While there may
    well have been evidence offered by the father that this was the case, this
    statement, while technically inaccurate, is of no moment. The issue before the
    motions judge was how much weight to give to the childrens views and
    preferences. It was in this context that the motions judge
reasonably
    concluded that the childrens views and preferences were not manufactured and
    were genuine and were not unduly influenced by their mother. Ms. Hayes, in the
    extensive work she put into the two s. 30 assessments, made no express finding
    of parental alienation.  I do not agree with the father that any such finding
    was implicit. Further, there was ample support in the evidence for the motions
    judges finding that the children had suffered physical abuse at the hands of
    their father on several occasions, and for the conclusion, contested by the
    father, that the mother was not attempting to undermine the childrens
    relationship with their father.

[17]

The
    father also argues that the motions judge erred in not taking into account Dr.
    Fidlers report. In the circumstances  namely, that Dr. Fidler wrote what may
    be referred to as a generic report about parent-child contact problems and available
    interventions and had no direct contact with the mother or the children  this
    was a perfectly reasonable position for the motions judge to take.

[18]

There
    was in my view no error here.

Best interests analysis

[19]

The father also argues that the motions judge
    erred in law by failing to adequately consider the best interests of the
    children and the principle of maximum contact under the
Divorce Act
, R.S.C. 1985, c. 3 (2nd Supp.).

[20]

I again disagree.

[21]

The childs best interests are not merely
    paramount  they are the only consideration in this analysis:
Gordon
    v. Goertz
, [1996] 2 S.C.R. 27 at para. 28. The evidence
    in this case was clear that the children were suffering from the protracted
    dispute and conflict between their parents.
Exposure to conflict has
    been called the single most damaging factor for children in the face of
    divorce: per Backhouse J., in
Graham v. Bruto
, [2007] O.J. No.
    656 (S.C.), at para. 65, affd 2008 ONCA 260.

[22]

In making the order he did, the motions judge, after considering
    whether they were genuinely-held, put great weight on the childrens
    consistently expressed views and preferences.

[23]

I note that paras. 121 to 140 of the motions judges
    reasons squarely address the childrens views and preferences  under a heading
    bearing that name.

[24]

The childrens views and preferences are of
    course a factor in the best interests analysis. Given their ages, the
    childrens views, particularly those of the older children, deserve significant
    weight.

[25]

As articulated in
Ontario (Children's
    Lawyer) v. Ontario (Information and Privacy Commissioner)
, 2018 ONCA 559
at
    para. 62, [o]ver the past several years, courts have taken great initiative to
    seek out and consider the views and preferences of the child.

[26]

The motions judge clearly relied on the s. 30 assessment
    reports to conclude that the children were expressing genuinely-held views and
    preferences when they repeatedly informed various mental health professionals who
    were involved with their family that they did not want their father to have
    access to them, even in a therapeutic context.

[27]

Also, while the youngest child was ten at the
    time, the alignment of his views with his elder siblings can add to its
    weight. As Laskin J.A. stated in
Ojeikere v. Ojeikere
, 2017 ONCA 372
at para.
    82, 
each individual childs views and objections are important, but
    so too is the childrens collective view.
Where siblings views align, as
    they do here, the maturity of the elder sibling may bolster the weight given to
    the younger siblings views. All three children have expressed the same strong
    desire

[28]

In
    my view, on this record as a whole, it was open to the motions judge to
    conclude that the childrens views were clearly and unequivocally expressed
    and to give them considerable weight. These views were (i) that they did not
    want to have contact with their father; and (ii) that they did not want to
    participate in any more therapy. The motions judge commenced the portion of his
    extensive reasons dealing with his findings on the childrens views with the
    observation that S and N had expressed these views to 13 different
    professionals. Indeed, the motions judge went on to note at para. 121 of his
    reasons that neither of these positions were in dispute.

Charter
Arguments

[29]

Finally,
    the father argues that his s. 7 and s. 11(b)
Charter

rights
    were infringed by the delays in the proceeding, and that the decision violated
    Canadas international law obligations. Without commenting on the relevance or
    application of
Charter

rights in this context, I would reject these
    submissions. The motions judge found clearly that the father had contributed to
    the delay in the proceedings. But more importantly, the motions judge made his
    decision based only on the childrens best interests. He made access at the
    childrens discretion. And this decision was clearly in accordance with the
    principles of fundamental justice and Canadas international law obligations.

(2)

The appeal of the costs order

[30]

As
    to costs, I note that the motions judge, in his thorough costs reasons, found
    that the father had at various times behaved unreasonably during the
    proceedings and had failed to provide the mother with a bill of costs. The
    motions judge also considered proportionality, the importance of the motions to
    the parties and the fact that the mother had been completely successful on the
    motions. I see no reason to interfere with the motions judges exercise of
    discretion in the determination of costs. I would accordingly dismiss the
    fathers motion for leave to appeal costs.

CONCLUSION

[31]

This
    case, like all high conflict custody cases, is very sad. Undoubtedly, it has
    caused much pain to the parents and the children. Although positions have
    become entrenched, I do not agree with the fathers submission that the
    decision under appeal effectively prevents the father from ever having
any
relationship with his sons  something he clearly wants very much.

[32]

The
    order leaves the door open to a way forward.  We encourage the mother to keep
    an open mind about the potential benefits of a relationship between her sons
    and their father and to encourage some form of regular communication between
    them. With the dispute between the parents now at an end, the father can now
    focus on what has always been most important  slowly re-building his
    relationships with his sons.

DISPOSITION

[33]

I
    would accordingly dismiss the appeal.

[34]

I would invite the parties to make written submissions as to the
    costs of the appeal and the proceedings in the Divisional Court. The mother will
    deliver her costs submissions to the Registrar of this court within 15 days of
    the release of these reasons, and the father will have 10 days to respond.

Released: GE JUL 18 2018

Gloria Epstein
    J.A.

I agree. P.
    Lauwers J.A.

I agree. K. van
    Rensburg J.A.


