



COURT OF APPEAL FOR ONTARIO

CITATION: R.F. v. J.W., 2021 ONCA 528

DATE: 20210722

DOCKET: C68225

Juriansz, van Rensburg and
    Sossin JJ.A.

BETWEEN

R.F.

Applicant (Appellant)

and

J.W.

Respondent (Respondent)

Ken Nathens and Denniel Duong, for the
    appellant

Kirsten Hughes, Mackenzie Dean and Darryl
    Willer, for the respondent

Heard: May 7, 2021 by video
    conference

On appeal from the order of Justice Mary
    Jo McLaren of the Superior Court of Justice, dated February 26, 2020, with
    reasons reported at 2020 ONSC 1213.

van
    Rensburg J.A.:


OVERVIEW

[1]

The parties R.F. and J.W.
[1]
are former spouses and the
    parents of two children, who are now 15 and 11 years old. After 14 years of
    marriage, they separated in 2014, and divorced in 2017. Both remarried.
    Although they were able to agree on an equal time-sharing arrangement after
    their separation, ultimately they became involved in high conflict litigation.

[2]

The appeal is from a judgment following a 16-day
    trial that took place in September 2019. A final order with reasons for
    decision was released on February 26, 2020. The trial was primarily concerned
    with parenting time and decision-making responsibility in relation to the
    parties children and child support.
[2]

[3]

The trial judge concluded that it was in the
    best interests of the children for the parties to have shared parenting time on
    an alternating weekly time-sharing schedule and for the respondent father to
    have final decision-making responsibility for the children after consultation
    with the appellant mother. The trial judge fixed the parties income for child
    support purposes for 2018, dismissed the claim for a retroactive adjustment of
    support, ordered set-off child support to be paid by the mother, commencing
    March 1, 2020 (with the requirement that the father provide an income analysis
    from a chartered accountant every two years for the preceding two years,
    commencing in 2021), and s. 7 expenses to be shared proportionate to the
    parties incomes.

[4]

The mother appeals both the parenting and child
    support provisions of the trial judges final order. She asserts that the trial
    judge made reversible errors in her approach to and consideration of the
    evidence respecting parenting of the children, in the determination of the fathers
    income for child support purposes (and the sharing of s. 7 expenses), and in
    failing to order the father to pay support arrears.

[5]

The mother also seeks to introduce as fresh
    evidence in this appeal her affidavit setting out changes and events [that]
    have transpired since the judgment under appeal was made.

[6]

For the reasons that follow, I would dismiss the
    appellant mothers motion to introduce fresh evidence and, except for one issue
    that I would remit to the trial judge, the appeal.

THE FRESH EVIDENCE MOTION

[7]

The mothers proposed fresh evidence is her affidavit,
    which speaks primarily to events concerning the children since the date of the
    trial and the final order under appeal. The father opposes the motion, but if
    the mothers affidavit is admitted, he asks the court to consider his own
    affidavit that sets out his post-trial observations, and attaches as exhibits
    the interim reports of the therapist who was appointed on consent at the
    conclusion of the trial, Lourdes Geraldo,
[3]
and of the childrens individual therapist.

[8]

Evidence about the circumstances prevailing
    since the date of an order under appeal is not, strictly speaking, fresh evidence
    that would meet the test for admission under
R. v. Palmer
, [1980] 1
    S.C.R. 759, at p. 775, or
Sengmueller v. Sengmueller
(1994), 17 O.R.
    (3d) 208 (C.A.). As Benotto J.A. observed in
Goldman v. Kudelya
, 2017
    ONCA 300, the
Palmer
criteria are more flexible where an appeal
    involves the best interests of a child, in order to provide the court with
    current information about the condition, means, needs, circumstances and well‑being
    of the child. However, she cautioned that [t]he more flexible approach to the
Palmer
test in custody matters is not an opportunity for parents to continue an
    affidavit war: at para. 28. Except for one agreed upon fact, the parties
    contradictory affidavits were not admitted as fresh evidence in
Goldman.

[9]

Similarly, in the present case the proposed
    fresh evidence speaks to events since the trial, and in particular after the
    parenting regime provided for in the order under appeal was implemented. The mothers
    affidavit repeats and continues themes from the trial: that the father is
    responsible for the deterioration in his relationship with the children, and
    that he is ignoring the childrens best interests. The mother asserts that,
    contrary to the trial judges findings, events since the date of the final
    order demonstrate that the father is the primary source of conflict between the
    parties. She recounts incidents with the children that suggest that they are
    doing less well under the equal time-sharing regime, and she objects to the fathers
    decision to prevent the children from attending in-person dance classes due to
    COVID-19 restrictions.

[10]

I agree with the father that the matters raised
    in the proposed fresh evidence were either considered by the trial judge at
    first instance or are matters that are being addressed through the therapy that
    was ordered by the trial judge on consent at the conclusion of the trial. In a
    further attendance on November 18, 2020 (to deal with issues of cell phone use
    and dance registration), the trial judge ordered the parties, through counsel,
    to arrange a further attendance to speak to the matter in 2021, among other
    things to advise the court of the status of therapeutic assistance provided by
    Ms. Geraldo.
[4]
It is in this context that Ms. Geraldos interim report will be considered.

[11]

Although the best interests of the children are
    engaged in family law appeals of final parenting orders, an appeal is not the
    place to address ongoing conflict between the parties arising out of the order
    under appeal. There is a strong interest in finality, not only for the parties,
    but for the children. This is especially the case where the parties have been
    involved in years of high-conflict litigation, culminating in a lengthy trial. The
    order under appeal must be treated as a final order, unless there are
    demonstrated errors meeting the exacting standard of review on appeal. As this
    court has emphasized in other cases, the proper place for new evidence about
    changed circumstances  if in fact the threshold of material change can be met 
    is a motion to change before the court that has original jurisdiction, and not
    in the context of an appeal: see e.g.,
Katz v. Katz
, 2014 ONCA 606, 324
    O.A.C. 326, at para. 75;
Myles v. Myles
, 2019 ONCA 143, at para. 7;
    and
Gagnon v. Martyniuk
, 2020 ONCA 708, 50 R.F.L. (8th) 266, at para.
    3.

[12]

Generally, where information about a childs
    current circumstances is properly considered on appeal, it must be such that it
    would reasonably be expected to have changed the outcome in the court below:
Childrens
    Aid Society of Oxford County v. W.T.C.
, 2013 ONCA 491, 308 O.A.C. 246, at
    para. 43;
Ojeikere v. Ojeikere
, 2018 ONCA 372, 140 O.R. (3d) 561,
    at para. 48. In this case the proposed fresh evidence could not reasonably have
    changed the outcome of the trial. The mothers affidavit speaks to the
    circumstances following the trial judges order, after equal parenting was
    implemented, and the father assumed decision-making responsibility for the
    children. The challenges faced by the children and their relationship with their
    father were front and centre at the trial, and it is not surprising that there
    would be some difficulties in the transition. The parties recognized, as early
    as September 2019, the benefits of therapy with Ms. Geraldo, which is
    ongoing, and which will be the subject of a further attendance before the trial
    judge this year. This is the appropriate forum for the consideration of Ms.
    Geraldos interim report.

[13]

For these reasons I would dismiss the motion to
    admit fresh evidence.

THE PARENTING DECISION

(1)

Brief Background

[14]

At the time of separation in 2014 the parties
    two children were eight and four years of age. For the first two years the
    parties operated under a
de facto
equal alternating weekly time-sharing
    arrangement with the children, sometimes referred to as week about, which
    they arranged first on their own, and then with the assistance of a parenting
    coordinator.

[15]

The mother commenced proceedings in November
    2016, seeking, among other things, sole custody of the children
    (decision-making responsibility), primary residence of the children, and child
    support. The father sought joint or sole custody (decision-making
    responsibility), primary residence and child support.

[16]

As the litigation progressed, the parties
    remarried  each to a spouse with their own children. Their conflict escalated.
    As the trial judge observed, both parties contributed to this high conflict
    case. Each contacted the Catholic Childrens Aid Society (the CCAS) more than
    once with serious allegations that were never verified. Unfortunately, during
    the years of litigation the parents also took steps that subjected the children
    to many interviews with various professionals. They (and the mothers partner,
    K.) exchanged emails and messages that contributed to the conflict.

[17]

In 2017, pursuant to a consent order, a custody
    and access assessment was performed by John Butt, a registered marriage and
    family therapist. His report (the 2017 Parenting Plan Report) recommended a
    joint/parallel parenting arrangement for the children, with primary residence
    with the mother and time with the father one night during the week and every
    second weekend, and shared holiday and vacation time. These recommendations
    were incorporated into the temporary consent order of Mazza J. dated August 17,
    2017, which was in place at the date of trial. Mr. Butt had started work on an
    updated report, however he could not complete it or attend at trial due to
    illness. The 2017 Parenting Plan Report and his clinical notes for the updated
    report were admitted in evidence at trial on consent.

[18]

At trial each party sought an order for sole custody
    (decision-making responsibility) and primary residence of the children. By the
    end of the trial, the mother asked for an order further reducing the fathers parenting
    time.

[19]

The evidence at trial consisted of the testimony
    of 15 witnesses, including 6 professionals who had dealings with the family,
    and the business records of Mr. Butt, the Hamilton CCAS and Hamilton
    Police Services.

(2)

Standard of Review

[20]

The scope of appellate review in family law
    matters, including those involving parenting orders is intentionally narrow. This
approach promotes finality in family law litigation and
    recognizes the importance of the appreciation of the facts by the trial judge:
Van de Perre v. Edwards
, [2001] 2 S.C.R. 1014,
at para. 11, citing
Hickey v.
    Hickey
, [1999] 2 S.C.R. 518, at paras. 10, 12.

[21]

The trial judges order must only be disturbed
    where there are demonstrated errors meeting the exacting standard of review on
    appeal. An appeal in a case involving parenting time and decision-making responsibility
    (as in any case on appeal to this court) is not an opportunity for a retrial.
Deference
    is owed to the decision of the trial judge, particularly after a lengthy trial.
    As the Supreme Court noted in
Van de Perre
, [c]ase
    by case consideration of the unique circumstances of each child is the hallmark
    of the process
.

Intervention on appeal is warranted only
    where there is a material error, a serious misapprehension of the evidence or
    an error of law:
at para. 13.

(3)

Alleged Errors of the Trial Judge: The Parenting
    Order

[22]

The mother contends that the trial judge erred
    in her determination that the parties would have shared parenting time on an
    alternating weekly time-sharing schedule and that the father would have sole
    decision-making responsibility for the children.

[23]

She makes three main arguments:

·

First, the trial judge erred in law by failing
    to give effect to the childrens views and preferences, including those set out
    in the 2017 Parenting Plan Report and Mr. Butts more recent clinical notes. In
    a related argument, she says that the trial judge overlooked the childrens
    legitimate reasons for preferring to live with their mother (and her spouse)
    because she failed to properly consider Mr. Butts evidence;

·

Second, the trial judge erred in her treatment
    of evidence of the parties alternative lifestyle and other pre-separation
    conduct, including in her conclusion that this evidence affected the mothers
    credibility, but not the credibility of the father; and

·

Third, the trial judge erred in permitting the father
    to change the childrens family doctor.

(4)

Discussion

[24]

I would not give effect to any of these grounds
    of appeal. No reversible error has been demonstrated in the final order
    respecting the parenting of the children. As I will explain, it is apparent
    from a review of the trial judges lengthy and detailed reasons that she considered
    all of the evidence at trial, she made all necessary findings of fact 
    including that both parties were good and loving parents to the children  and
    she assessed the parties credibility in the context of determining which of
    the parties was more likely to encourage the others relationship with the
    children. This was a very important factor in this high conflict case, where
    the childrens relationship with their father had deteriorated over time.

[25]

In arriving at her decision, the trial judges
    focus was without question on the best interests of the children. Consistent
    with the new legislative provisions on allocating parenting time, she
    recognized that children should have as much time with each parent as is
    consistent with their best interests.
[5]
The trial judge was concerned about how the children had come to align
    themselves with their mother. She observed that their relationship with their
    father had deteriorated, in part, because of the actions of the mother, and she
    was concerned that, if sole decision-making responsibility were awarded to the mother,
    the children would become more entrenched in their determination not to see
    their father, which was not in their best interests.

[26]

The trial judge also reasonably concluded that
    it would not be appropriate to allocate decision-making between the parents:
    neither party suggested this option, both parties expressed that it would not
    work, and the trial judge observed that, if areas of decision-making were
    divided, undoubtedly they would overlap and conflict would result. While the mothers
    evidence was that she had done nothing to discourage the relationship between
    the children and their father, the trial judge found the father to be more
    credible than the mother on this point, and she determined that he would be the
    party most likely to promote a relationship with the other parent. For those
    reasons, she ordered equal time-sharing, with decision-making responsibility to
    the father.

The trial judges treatment of the childrens
    views and preferences

[27]

Turning to the first ground of appeal of the
    parenting order, I do not agree that the trial judge ignored the evidence of
    the childrens views and preferences, including what was contained in Mr.
    Butts 2017 Parenting Plan Report and the notes he took of his discussions with
    the children in July 2018. Nor do I agree that the trial judge erred in finding
    the children had aligned themselves with their mother, or that she overlooked the
    legitimate reasons for the children to prefer their mothers home.

[28]

Several witnesses reported that, based on
    conversations with the children and their observations, the children preferred
    the home environment with their mother and her new spouse to the environment at
    their fathers home. They also reported that there was conflict between the
    children and the fathers spouse, D.
[6]

[29]

The trial judge noted that a significant part of
    the mothers case at trial related to the childrens views and preferences, and
    she recited the evidence in her reasons. The trial judge explained why she
    considered such evidence to be of limited value in this case: it was not obtained
    through a professional whose job it was to consider the independence of the
    views, and to look for external influences. The potential for influence was
    noted by Mr. Butt, who observed that the childrens views and preferences,
    although consistent with the observations he made, could not reasonably be
    deemed to be fully independent and should be cautiously considered.

[30]

The trial judge concluded that she was not
    inclined to rely on the expressed views and preferences of the children, other
    than to make time sharing a week about rather than giving the father the
    majority of the time, which would be too contrary to what the [children] would
    like, and what they are used to. She concluded that the children had likely
    been influenced by their mother, and that they had become increasingly aligned
    with her.

[31]

In so concluding, the trial judge considered the
    evidence of the mothers witnesses that they never heard the mother speak
    negatively about the father, and that she promoted a relationship between the
    children and their father. However, the trial judge also referred to evidence at
    trial that contradicted this assertion. What was squarely before the trial
    judge was whether the deterioration of the childrens relationship with their
    father  which was reflected in their stated preference to live only with their
    mother and her partner, K.  was, as was alleged by the mother, the natural
    result of the fathers conduct (as well as that of his spouse at the time, D.).
    Ultimately the trial judge concluded that the evidence at trial did not support
    this conclusion.

[32]

This conclusion was open to the trial judge on
    the evidence. She reasonably concluded that the childrens views had not been
    ascertained independently and that the children had become increasingly aligned
    with their mother against their father.

The trial judges treatment of the parties
    pre-separation conduct evidence

[33]

This takes us to the mothers second ground of
    appeal of the parenting order: that the trial judge erred in her assessment of
    the evidence of the parties alternative lifestyle before separation: their
    involvement in a swingers club and sexual infidelities. The mother asserts
    that the trial judge, after finding that this was irrelevant past conduct,
    wrongly took the evidence into consideration as affecting the mothers credibility
    and not the fathers. She asserts that one particular aspect of the evidence,
    the father having retained nude photos of her, ought to have been considered as
    family violence, which is a relevant factor in determining a childs best
    interests under s. 24(4) of the
Childrens Law Reform Act
, R.S.O. 1990, c. C.12
.

[34]

There was a lot of evidence about the parties pre-separation
    alternative lifestyle. The thrust of the mothers evidence, which was
    contradicted by the fathers account, was that she was not a willing
    participant in many of these activities, including an incident resulting in
    nude photos of her with another man, and on a girls weekend  photos that
    ended up in the fathers possession. Unfortunately, and unnecessarily in my
    view, a great deal of time at trial was devoted to the parties contradictory evidence
    about these events and allegations. It is also unfortunate that, despite her
    conclusion that the evidence was not ultimately relevant to the parenting
    orders, the details of this evidence were recounted at length in the trial
    judges reasons.
[7]

[35]

At para. 347, the trial judge noted that she was
    very mindful of the fact that none of these activities prevented the parties
    from entering into a joint custody arrangement with an equal timesharing that
    was arranged with the help of a qualified parenting coordinator and which
    lasted for over two years. She concluded:

Give[n] the ability of the parties to
    initially overlook these activities, and the contradictory evidence, I cannot
    say that these activities have impacted either partys ability to parent. As
    such they are not something that helps or hurts the claims made by either party
    with the exception of credibility, which I will address. I am also mindful that
    both parties appear to be in stable new relationships now, and have been for a
    few years. Both have re-married.

[36]

The trial judge stated that she made no
    determination as to who was the instigator of the trips to the swingers club
    or whether it was a mutual decision, and that neither this nor the mothers extra-marital
    relationship was a factor in her decision. In addition to a lack of independent
    evidence, there [was] no reason to believe that the children were affected in
    any way: at para. 360.

[37]

I see no error in the trial judges conclusion
    that the evidence about the parties pre-separation lifestyle would not affect her
    decision on parenting, except in the sense she described as relevant to credibility.

[38]

First, the trial judge did not err in failing to
    find that the fathers retention of nude photos of the mother was an incident
    of family violence. This was not the argument at trial; rather the mothers
    counsel referred to s. 162.1 of the
Criminal Code
(making it an
    offence to knowingly publish an intimate photo of someone without their consent).
    The trial judge reasonably concluded that this provision was not relevant: there
    was no suggestion that the photos were made available to anyone other than
    private individuals and no witnesses were called to say they saw them. One
    witness said the father offered to show some photos to her, but the father denied
    this. The trial judges treatment of the evidence about the nude photos was
    appropriate. She noted that, although the mother was understandably upset
    that the father kept the photos, there was contradictory evidence about how
    they came to be, and there was no evidence at trial that they had been shared
    by the father, although she accepted that he had told people about them. The
    trial judge also appropriately observed that there was no reason why the photos
    should not be destroyed.

[39]

Nor in my view did the trial judge err in her
    limited consideration of the alternative lifestyle evidence, including the
    evidence about the photos, to assess credibility. She had to determine which of
    the two parents was more likely to encourage a relationship with the other. She
    concluded that the father would be more likely to facilitate contact with the
    mother than the reverse. In arriving at this decision, she identified certain aspects
    of the mothers testimony that lacked credibility: that the father had harassed
    her and her adult friends into taking nude photos of themselves on their
    girls weekend; that the complimentary comments in greeting cards she wrote to
    the father were written, not because they reflected her feelings, but because it
    was expected; and that the mother was forced by the father to travel by cab to
    another mans house for sex and photos, contrary to what appeared in the mothers
    own explicit text messages. By contrast, the trial judge stated that she did
    not find specific areas where the father lacked credibility on substantive
    issues, and she was more inclined to accept his evidence overall.

[40]

The trial judges assessment of credibility is
    entitled to deference. It is supported by the evidence and reveals no
    reversible error.

The fathers ability to change the childrens
    family doctor

[41]

Finally, I see no merit in the mothers argument
    that the trial judge erred in permitting the father to change the childrens
    family doctor. The trial judge stated that, since the father was going to have
    custody (decision-making responsibility), it was not unreasonable for him to
    change the family doctor. The trial judge noted that while she did not doubt
    the family doctors sincerity (the family doctor had testified as a witness at
    trial for the mother and recounted detailed conversations with the children
    about their preference for their mothers home), the father might want to start
    with someone new, who had not had the history of hearing the childrens
    complaints about the father and his spouse. The trial judge, who had the
    benefit of hearing and considering all the evidence, provided a sensible reason
    for refusing the mothers request that the children remain with their current
    family physician. There is no reason to interfere.

CHILD SUPPORT

[42]

From October 1, 2017 until August 1, 2019 the father
    had been paying the mother $1,416 per month voluntarily based on an estimated annual
    income of $100,000. He stopped paying child support one month before trial. At
    trial both parties sought retroactive adjustments to child support. The mother asserted
    that she was owed child support for 2017, 2018 and 2019 based on the father
    having earned more than $150,000 in each of those years. The father argued that
    he had overpaid child support and was entitled to repayment over time given that
    the children were with him more than 40% of the time between October 2017 and
    August 2019.

[43]

The trial judge ordered support on a set-off
    basis from March 1, 2020 based on her determination of the 2018 income for the mother
    of $152,314.81 and of the father of $93,341. Although she fixed child support
    going forward based on the parties 2018 incomes, she ordered the father to
    provide an income analysis from a chartered accountant every two years for the
    preceding two years, commencing in 2021 (for 2019 and 2020).

[44]

The trial judge refused to make any retroactive
    adjustments to child support. She acknowledged the parties contradictory
    calculations of the amount of time the children had spent with their father.
    Noting that the court has discretion and the child support is the right of the
    child, she observed that both parties knew the time‑sharing schedule when
    child support was agreed to, and that if the father had the children over 40%
    of the time, she was not prepared to say that he had no obligation to pay child
    support. She concluded that the estimated income of $100,000 was close to what
    the father actually earned, and it was a fair amount under all the circumstances.
    She concluded: I will use my discretion and leave child support on a
    retroactive basis, in the amount that was agreed to.

[45]

The mother asserts that the trial judge made two
    errors in her determination of child support: the first relates to the calculation
    of the fathers income for child support purposes for 2018. The second is that
    the trial judge erred by failing to award retroactive support for the six-month
    period from September 2019 to February 2020.

The fathers 2018 income for child support
    purposes

[46]

With respect to the fathers income, the mother makes
    the same arguments on appeal that were rejected at first instance. She says
    that, in determining the fathers income for 2018, no deduction ought to have
    been allowed for his rental and home office expenses. She contends that the trial
    judge ought to have included in the fathers income the amount that was allowed
    as a deduction for rent and home office expenses plus gross up for taxes (an
    amount exceeding $6,000), as well as pre-tax corporate earnings ($50,114.62). She
    seeks to impute income of over $150,000 to the father for 2018 (and for the
    preceding year, 2017).

[47]

I would not give effect to this argument. The
    trial judge accepted the opinion of the fathers expert, R. Andrew MacRae, a
    chartered accountant and business valuator, who provided an income report for
    the year 2017 and testified at the trial. Mr. MacRaes opinion was that,
    although the fathers line 150 income for 2017 was $84,000, he had an income of
    $90,000 for child support purposes. Adopting the same approach, the fathers
    income for 2018 for child support purposes was $93,341. The trial judge
    accepted Mr. MacRaes calculation and rationale for adding back the sum of $6,431
    for certain personal expenses that had been included in corporate deductions
    for meals and entertainment, telephone, travel, rent and home office expenses, with
    a gross up at 34%. And, although she acknowledged that there was a good
    argument that retained earnings should be included in the determination of income
    for support purposes, the trial judge elected not to attribute pre-tax
    corporate income in 2018 as there were substantial losses in 2017 and the father
    had been drawing on his cash reserves and line of credit to pay himself his
    monthly draw. The trial judge accepted Mr. MacRaes opinion that the prior
    years losses had to be considered as part of the analysis. His evidence was
    not seriously challenged and the mother provided no professional opinion to
    the contrary. There is no reason to interfere with the trial judges
    determination of the fathers income for 2018.

The child support arrears from September 2019
    to February 2020

[48]

Second, the mother argues that the trial judge
    erred by failing to order the father to pay arrears of child support in respect
    of a six-month period. She seeks payment of support for the period between
    September 1, 2019 and February 1, 2020. The father paid no child support during
    this period.

[49]

The mother points to the fact that the father
    was paying child support of $1,416 per month based on the parenting regime that
    was in place up to trial, which continued until the end of February 2020, when
    the new equal time parenting arrangements ordered by the trial judge were put
    in place. The fathers last child support payment was made in August 2019. The father
    renews the argument made at trial that he had overpaid child support because
    the children were living with him more than 40% of the time. This argument
    however had been rejected by the trial judge in refusing the fathers request
    for a retroactive adjustment to child support.

[50]

Although the final order states that there is no
    adjustment to child support as of February 29, 2020, the trial judges reasons do
    not address the question of child support for the six-month period between
    September 2019 and February 2020. I would remit the issue of child support for
    this period to the trial judge in the particular circumstances of this case, in
    which the parties are to reattend before the trial judge in any event to
    address the status of the therapeutic assistance provided by Ms. Geraldo.

DISPOSITION

[51]

For these reasons I would dismiss the motion to
    introduce fresh evidence and, except for the one issue I would remit to the
    trial judge, the appeal. If the parties are unable to agree on costs, the court
will receive written submissions limited to three pages each exclusive of any
    costs outline, with no right of reply. The respondents submissions are to be served
    and filed within 15 days of these reasons and the appellants submissions
    within ten days thereafter.

Released: July 22, 2021 R.G.J.

K.
    van Rensburg J.A.

I
    agree. R.G. Juriansz J.A.

I
    agree. Sossin J.A.





[1]
I have
    chosen to initialize the parties names in the title of proceedings and this
    decision at the parties request and to protect the childrens privacy, given
    the particularly sensitive nature of the evidence in this case.



[2]
Pursuant
    to amendments to the
Divorce Act
,
    R.S.C. 1985, c. 3, which came into effect on March 1, 2021, custody and
    access terminology has now been replaced by terms such as decision-making
    responsibility, parenting time and contact.
Section 35.4 of the Act
    deems a person who had custody of a child by virtue of a custody order to have
    parenting time and decision-making responsibility and a spouse or former spouse
    who had access by virtue of a custody order to be a person to whom parenting
    time has been allocated.



[3]
Ms.
    Geraldo was appointed on consent of the parties at the conclusion of the trial
    on September 26, 2019 to facilitate any and all therapeutic interventions,
    therapies and approaches to ensure a balanced relationship as between the
    children and the parties. The order also provided for the termination of any
    other counselling or therapy involving the children and prohibited further
    therapy without it being part of the process undertaken by Ms. Geraldo and
    specifically recommended by her.



[4]

The
    parties attended before the trial judge in accordance with paras. 34-35 of her
    final order that directed she would remain seized of the issue of the
    therapeutic interventions, and adjourned the issue of mobile phone use for the
    children, and any time limits for the childrens activities.



[5]

See
Childrens Law Reform Act
,
    R.S.O. 1990, c. C.12, s. 24(6) and the
Divorce Act
, s. 16(6).



[6]
The
    proposed fresh evidence discloses that the father has since separated from D.



[7]
It is
    unclear why it was necessary to have 16 days of evidence in this trial,
    including a great deal of evidence that the trial judge concluded was
    irrelevant to the issues she had to determine. A trial judge has an important
    role in determining as the trial progresses the relevance of the evidence which
    is led: see e.g.
R. v. Forrester
,
    2019 ONCA 255, 375 C.C.C. (3d) 279, at para. 16;
Burton v. Howlett
, 2001 NSCA 35, at para.
    15;
Canada (Attorney General) c.
    JTI-MacDonald Corp.
, 2012 QCCA 2017, at para. 8. There is also a concern
    about the length and style of the trial judges reasons in this case, which
    include a
seriatim
review of the
    evidence of each witness, and many details that are not only embarrassing to
    the parties but reveal medical and other confidential information about the
    children. Setting out the detailed evidence of each witness in the reasons for
    judgment is typically unhelpful: see
Welton
    v. United Lands Corporation Limited
, 2020 ONCA 322, at paras. 56-63. And
    the inclusion of confidential information that is unnecessary to the
    determination of the case should be avoided. As the Supreme Court noted
    recently, [proceedings] in open court can lead to the dissemination of highly
    sensitive personal information that would result not just in discomfort or
    embarrassment, but is an affront to the affected persons dignity:
Sherman Estate v. Donovan
, 2021 SCC 25,
    at para. 7.


