



WARNING

This is a case under the
Child, Youth and
    Family Services Act, 2017
and subject to subsections 87(8) and 87(9) of this legislation.
These subsections and
    subsection 142(3) of
the
Child, Youth and Services Act, 2017
, which
deals with the consequences of failure to comply,
    read as follows:

87
(8)
Prohibition
    re identifying child

 No
    person shall publish or make public information that has the effect of
    identifying a child who is a witness at or a participant in a hearing or the
    subject of a proceeding, or the childs parent or foster parent or a member of
    the childs family.

(9)
Prohibition
    re identifying person charged
 The court may make an order prohibiting the publication of
    information that has the effect of identifying a person charged with an offence
    under this Part.

142
(3)
Offences
    re publication

 A person who contravenes
    subsection 87(8) or 134(11) (publication of identifying information) or an
    order prohibiting publication made under clause 87(7)(
c
) or subsection
    87(9), and a director, officer or employee of a corporation who authorizes,
    permits or concurs in such a contravention by the corporation, is guilty of an
    offence and on conviction is liable to a fine of not more than $10,000 or to
    imprisonment for a term of not more than three years, or to both.




COURT OF APPEAL FOR ONTARIO

CITATION: T.J.L. v. E.B., 2021 ONCA 75

DATE: 20210204

DOCKET: C68185

Roberts, Zarnett and Sossin JJ.A.

BETWEEN

T.J.L.

Applicant

(Respondent)

and

E.B.

Respondent

(Appellant)

E.B., acting in person

Michelle Dwyer, for the respondent

Heard: January 26, 2021 by
    video conference

On appeal from the order of Justice Donald
    J. Gordon of the Superior Court of Justice, dated October 25, 2019, with
    reasons reported at 2019 ONSC 6096.

REASONS FOR DECISION

[1]

The appellant mother appeals from aspects of the
    trial judges final order made in proceedings claiming divorce and orders concerning
    the custody, principal residence, and parenting of the parties young child. The
    appellant does not appeal from the trial judges divorce order nor the order
    for joint custody. She submits that the trial judge erred in giving the
    respondent father the final decision-making power for major decisions
    concerning their child in the event of disagreement and in ordering that the principal
    residence of their child remain with the respondent, as it has been since February
    2017. The appellant maintains their childs principal residence should be with
    her, the appellant should have final decision-making power for major decisions
    concerning their child in the event of disagreement, and the respondent should pay
    child support.

[2]

In her factum, the appellant has raised eight
    arguments for consideration on appeal. Except for the argument of reasonable
    apprehension of bias, which we turn to below, the other seven arguments essentially
    challenge the trial judges findings of fact that underpin his decision. In
    sum, what the appellant characterizes as the trial judges misapprehension of
    the facts and evidence or his failure to assess credibility do not amount to reversible
    errors on appeal. Rather, these represent the appellants disagreements with the
    trial judges assessment and weighing of the evidence, particularly what she
    contends was his failure to reject the respondents evidence.

[3]

Although submitted as errors of law, similarly,
    the appellants submissions about the trial judges application of the criteria
    under s. 24 of the
Childrens Law Reform Act
, R.S.O. 1990, c. C.12 (
CLRA
),
    and
Gordon v. Goertz
, [1996] 2 S.C.R. 27, illustrate her disagreement
    with the trial judges consideration of the evidence and his findings but fail
    to reveal any error in the trial judges analysis or conclusions. In essence,
    the appellant complains about the weight that the trial judge gave or did not
    give to the various factors that he considered to determine their childs principal
    residence and to allow the respondent to make the final major decisions about
    their child in the event of disagreement with the appellant.

[4]

The trial judge extensively reviewed the history
    of the parties relationship and the proceedings to provide context for his
    findings. He was clear that any past difficulties that the parties experienced
    were historical issues and neutral factors in his assessment regarding the best
    interests of their child. In the end, the trial judge gave significant weight
    to the importance of their childs stability and determined that it was in the
    childs best interests to have the principal residence remain with the
    respondent. The trial judges determination that the respondent has the final decision-making
    power for major decisions involving their child in the event of disagreement flowed
    from his determination of the principal residence of their child and,
    importantly, is not unlimited. In fact, the trial judges order indicates that
    decision-making is the joint responsibility of the parties and requires the parties
    to meaningfully consult, co-operate, and communicate with each other.

[5]

In determining the matters before him, the trial
    judge was properly guided by the primary consideration of the best interests of
    the child, as dictated by s. 24 of the
CLRA
. The trial judges
    findings are reasonable and supported by the evidence. It is the trial judges
    task, and not this courts role, to assess and weigh the evidence and make
    findings of fact and credibility. In child custody cases, the trial judges findings
    are subject to considerable deference on appeal, and intervention is only
    warranted when there is a material error, a serious misapprehension of the evidence,
    or an error in law:
Van de Perre v. Edwards
, 2001 SCC 60, [2001] 2
    S.C.R. 1014, at paras. 11, 13;
Perron v. Perron
, 2012 ONCA 811, 113
    O.R. (3d) 600, at para. 25, leave to appeal refused, [2013] S.C.C.A. No. 26. The
    appellant has not pointed to any such error or serious misapprehension of the
    evidence that would permit this court to intervene.

[6]

Turning to the appellants allegation of bias
    against the trial judge, as the appellant fairly acknowledges, the threshold
    for establishing bias is a high one. There is a presumption of fairness,
    impartiality, and integrity in the performance of the judicial role. The
    grounds and evidentiary support for an apprehension of bias must be
    substantial. See:
Miglin v. Miglin
(2001), 53 O.R. (3d) 641 (C.A.), at
    paras. 29-30, revd on other grounds 2003 SCC 24, [2003] 1 S.C.R. 303;
Yukon
    Francophone School Board, Education Area #23 v. Yukon (Attorney General)
,
    2015 SCC 25, [2015] 2 S.C.R. 282, at para. 30.

[7]

We see no basis for the appellants allegation
    of bias against the trial judge. In our view, a reasonable and informed person,
    viewing the matter realistically and practically, and having thought the matter
    through, would conclude that the trial judge decided fairly:
Committee for
    Justice and Liberty et al. v. National Energy Board et al.
, [1978] 1 S.C.R.
    369, at p. 394,
per
de Grandpré J. (dissenting).

[8]

Again, the trial judges thorough and careful
    reasons demonstrate that his overarching consideration in making his order
    concerning custody and principal residence of the child was the best interests
    of the parties young child. He meticulously and fairly assessed the evidence
    and reviewed the parties submissions. The appellants disagreement and disappointment
    with the trial judges findings do not establish bias.

[9]

Moreover, the appellants bias argument is significantly
    undermined by the trial judges acceptance of her position requesting joint custody.
    In changing the sole custody order in favour of the respondent to joint custody
    with the appellant, notwithstanding the past conflicts between the parties, the
    trial judge recognized that both parties are committed and able to work
    together to care for their child. The trial judge also made it clear that this obligation
    rests on both parties:

The parties must understand their communication
    is essential for the well-being of [their child]. [Their child] needs to know
    that both parents are co-operating and deciding matters together. The parties
    are given notice, by these reasons, that a record of their future communication
    will be of significant interest to the court on any future motion to change.

Disposition

[10]

For these reasons, the appeal is dismissed. As
    the trial judges order and the childs principal residence remain unaltered,
    there is no need to address the appellants arguments concerning child support.

[11]

The respondent is entitled to partial indemnity
    costs in the amount of $7,500, inclusive of disbursements and HST.

L.B.
    Roberts J.A.

B. Zarnett
    J.A
.

Sossin
    J.A.


