



COURT OF APPEAL FOR ONTARIO

CITATION: De Melo v. De Melo, 2015 ONCA 598

DATE: 20150904

DOCKET: C59650

Cronk, Lauwers and van Rensburg JJ.A.

BETWEEN

Donny De Melo

Appellant

and

Erin De Melo

Respondent

Donny De Melo, in person

Walter Drescher, for the respondent

Linda Feldman, for the Office of the Childrens Lawyer

Heard: August 31, 2015

On appeal from the judgment of Justice Harrison S. Arrell
    of the Superior Court of Justice, dated October 24, 2014, and the costs order
    of Justice Arrell, dated December 2, 2014.

ENDORSEMENT

[1]

The parties married in 1999 and separated in 2011.  There are two
    children of the marriage, now 15 and 13 years of age.

[2]

By summary judgment dated October 24, 2014, H. Arrell J. of the Superior
    Court of Justice granted sole custody of the two children of the marriage to
    the respondent mother and access to the appellant father at the discretion of
    the children, based on their initiation, among other relief.  By further order
    dated December 2, 2014, the motion judge also awarded costs to the mother in
    the amount of $20,000, inclusive of disbursements and taxes.

[3]

The father, a self-represented litigant, appeals to this court from the
    motion judges rulings on custody and access.  He raises several grounds of
    appeal.

[4]

First, the father challenges the timing of the mothers summary judgment
    motion.  He argues that the motion should not have proceeded since, when the
    motion was brought in September 2014, the matrimonial action between the
    parties had already been placed on the trial list and scheduled for hearing in
    January 2015.

[5]

We disagree.  Under rule 16(1) of the
Family Law Rules
, O. Reg.
    114/99, a motion for summary judgment may be brought in an action at any time
    after the respondent has served an answer or the time for serving an answer has
    expired.   That is what occurred here.  In this case, the mother had served an
    answer and, by consent order of the motion judge, the divorce claim was severed
    from the action.

[6]

Further, contrary to the fathers submissions, there is no strict legal
    requirement that a motion for summary judgment be brought only before the
    conduct of a settlement or trial management conference.  Nor did the mothers
    motion seek to alter the existing
status quo
regarding custody and
    access.  The children had resided with their mother on a full-time basis and
    had elected not to exercise their right of access to their father since the
    date of separation  a period of approximately three years.  The relief sought
    by the mother, therefore, sought to maintain, rather than alter, the
status
    quo
.

[7]

Second, the father submits that the motion judge erred in law by placing
    the onus on him to demonstrate that there was a genuine issue requiring a
    trial.

[8]

Again, we disagree.  The motion judges reasons indicate that he was
    satisfied that the mother had met her obligation under rule 16(4) to
    demonstrate that there was no genuine issue requiring a trial in respect of
    custody or access.  The father was obliged to respond to the mothers motion by
    providing evidence of specific facts showing that there was a genuine issue for
    trial: rule 16(4.1).  The motion judge concluded that the father failed to meet
    his evidentiary burden.  Indeed, he held that [t]he evidence is overwhelming
    that there is no genuine issue for trial.  The outcome of such a trial [on
    custody and access] is a certainty  .

[9]

This conclusion was open to the motion judge on the evidence, including the
    mothers affidavit evidence, the affidavit evidence of John Butt  a clinical
    investigator with the Office of the Childrens Lawyer  and reports authored by
    Lourdes Geraldo  a reconciliation therapist  regarding the childrens
    circumstances, needs and preferences.  Relying on this evidence, the motion judge
    applied the principles established in
Hryniak v. Mauldin
, 2014 SCC 7,
    [2014] 1 S.C.R. 87 and concluded that he was able to make a fair and just
    determination of the custody and access issues without resort to a trial.  He
    did not err in so concluding.

[10]

Third,
    the father contends that the motion judge erred by failing to address the
    applicable criteria for determining the best interests of the children.  In a
    related argument, he also maintains that the motion judge erred by failing to
    review all the relevant evidence concerning the childrens best interests.  The
    father points particularly to evidence that he says established aggressive and
    assaultive conduct by the mother, alleged efforts by her to alienate the
    children, and asserted ineffectiveness and wrongful conduct by Ms. Geraldo, the
    reconciliation therapist.

[11]

The
    motion judges reasons belie these contentions.  They demonstrate that, in
    assessing the merits of the parties positions on custody and access, the
    motion judge considered the evidence of the needs and circumstances of the
    children in accordance with the factors described in s. 24(2) of the
Childrens
    Law Reform Act
, R.S.O. 1990, c. C-12.  There is no basis to conclude that,
    in so doing, he failed to consider any material evidence.  For example, he took
    account of the evidence of the parties, Mr. Butt and Ms. Geraldo regarding:

1)

the
    mothers primary parenting role since separation;

2)

the
    childrens current circumstances, needs, progress and emotional well-being;

3)

the
    childrens wishes and preferences, namely, their consistently expressed desire
    for the custodial arrangements with their mother to continue;

4)

the
    need to accord considerable weight to the wishes of these teenaged children;
    and

5)

the
    fathers claim that the mother had alienated the children from him and the
    childrens advice to the contrary, namely, that their mother has always
    encouraged their contact with their father.

[12]

The
    motion judge recognized, correctly, that this is a high conflict matrimonial
    case; that joint custody is not appropriate in such cases except in exceptional
    circumstances; that such exceptional circumstances did not exist here, where
    the parties have no effective communication; that the ages of the children (15
    and 13 years of age) and the custodial arrangements since separation strongly
    militated in favour of an award of custody to the mother; and that court-constructed
    access arrangements should not be imposed on teenaged children who have
    repeatedly confirmed that they do not wish contact with the non-custodial
    parent and that they wish to maintain existing custodial and access
    arrangements.

[13]

Having
    considered the relevant evidence, the motion judge concluded that it was in the
    best interests of the children that sole custody be granted to the mother and
    that forcing access with the father against the wishes of the children would
    be counterproductive, detrimental to their emotional well being and likely
    futile in any event.

[14]

The
    evidence overwhelmingly supported these conclusions.  With respect to the issue
    of access, we note that the childrens opposition to court-ordered access was
    rooted in their own experiences with their father.  They made it clear that
    they do not wish to see their father at the present time and they wish no
    further involvement in litigation or court-ordered interventions.  The evidence
    established that the children are of sufficient age and maturity so as to
    warrant judicial respect for their positions on these matters.

[15]

During
    oral argument, the father also challenged the motion judges failure to award
    him spousal support from the mother.  On the record before us, it does not appear
    that the issue of spousal support was properly before or fully argued before
    the motion judge.

[16]

Finally,
    the father also seeks to appeal from the motion judges costs award in favour
    of the mother.  Although the father did not formally seek leave to appeal from
    the challenged costs award on a proper or timely basis, we have nevertheless
    considered his various grounds of attack on this award.  The motion judges
    assessment of costs is a highly discretionary decision that attracts
    considerable deference from this court.  As we are not persuaded that his costs
    award is either plainly wrong or tainted by an error in principle, there is no
    basis for appellate interference with it.

[17]

For
    the reasons given, the appeal is dismissed.  The respondent mother is entitled
    to her costs of the appeal, fixed in the amount of $5,000, inclusive of
    disbursements and applicable taxes.  No costs are sought by or awarded in favour
    of the Office of the Childrens Lawyer.

E.A. Cronk J.A.

P. Lauwers J.A.

K. van Rensburg J.A.


