



COURT OF APPEAL FOR ONTARIO

CITATION: W.S. v. P.I.A., 2021 ONCA 923

DATE: 20211222

DOCKET: C69835

Hourigan, Trotter,
    and Zarnett J.A.

BETWEEN

W.S.

Applicant (Respondent)

and

P.I.A.

Respondent (Appellant)

Gary S. Joseph and
    Alice Parama, for the appellant

Gary Gottlieb and Mira Pilch, for the
    respondent

Heard: December 17, 2021

On appeal from the order of Justice Heather
    A. McGee of the Superior Court of Justice, dated September 9, 2021, with
    reasons reported at 2021 ONSC 5976.

REASONS FOR DECISION

[1]

The appellant mother appeals the trial judges order
    that transferred primary care of the parties two children to the respondent
    father. The order imposed an initial period of no contact by the mother, other
    than by Zoom or under supervision of a child and family therapist, and provided
    for increased parenting time to the mother in stages, with the goal of equal
    parenting time after six months. Prior to the order, the childrens primary caregiver
    was the mother.

[2]

At the conclusion of oral argument, we dismissed
    the appeal with reasons to follow. These are those reasons.

[3]

Parenting orders are inherently exercises of
    discretion:
Van de Perre v. Edwards
, 2001 SCC 60, [2001] 2 S.C.R.
    1014, at para. 13. A trial judges exercise of discretion and factual findings
    in connection with it are entitled to deference on appeal:
A.M. v. C.H.,
2019
    ONCA 764, 32 R.F.L. (8th) 1, at para. 4. The caution an appellate court must
    show before interfering with a parenting order by a trial judge is all the more
    pronounced where, as here, the decision has already been implemented and we are
    asked to interfere with the trial judges step by step process mid-course, but
    without current information.

[4]

The trial judge made the order after an
    assiduous review of the evidence given at a 39-day trial. She found that the
    children were unable to spend as much time with each parent as was consistent
    with their best interests while they were in the primary care of the mother.
    She found that a transfer of primary care and a staged process toward equal
    parenting time was the only viable option in the childrens best interests
    given the conduct of the mother. She described that conduct as the mother
    having intentionally sought to undermine agreed, court-ordered parenting
    schedules and sabotage reunification counselling with false allegations of
    sexual abuse, in order to terminate the childrens relationship with the father.
    Despite the mothers statements to the contrary, the trial judge found the mother
    did not actually want the children to have any relationship with the father.

[5]

The mother raises a number of grounds of appeal
    that are, in essence, attacks on the trial judges factual findings. She argues,
    among other things, that the trial judge allowed the fathers counsel to lead
    witnesses, that she gave inconsistent treatment to what use could be made of
    prior judicial endorsements in cross-examination, and that she relied on
    evidence the father had scripted or that was based on his self-reporting. She
    argues that the trial judge did not refer to certain evidence that the mother
    says was helpful to her case. We see no merit in those grounds of appeal. The
    trial judge appropriately controlled the admission of evidence, was alive to
    how it was generated, and made justifiable rulings. The weight she gave, and
    her assessment of that evidence, was within her discretion. She was not obliged
    to refer to every piece of evidence. Her reasons show that she grappled with
    the essential issues. It is not the job of this court to retry the case.

[6]

The mother also submits that the trial judge
    permitted a non-expert to give opinion evidence favourable to the father yet
    prohibited such opinions from the mothers witnesses. We disagree. The trial
    judge imposed appropriate parameters for the scope of witness testimony, based
    on the individual circumstances of each witness and what they were being asked
    to give evidence about.

[7]

The mother also argues that the trial judge
    erred when she ruled certain evidence to be inadmissible, including recordings
    made surreptitiously by the mother. We see no such error. The trial judges
    rulings were made on proper considerations, including that she found the
    recordings to be unreliable.

[8]

We also see no error in the trial judge having
    herself raised the suggestion that an updated report from a custody assessor
    should be obtained, but then deciding to continue the trial without any update
    from that custody assessor. Given the breadth of the evidence that was
    available to her, and the need to bring a timely resolution to this high-conflict
    litigation, her decision was within her discretion. Nor was there an error in
    her refusal to draw certain adverse inferences as the mother suggests she
    should have.

[9]

Finally, the mother argues that the trial judge
    failed to properly take into account the provisions of the
Divorce Act
, R.S.C. 1985, c. 3 (2nd Supp.)
that
    require consideration of family violence and its impact in prescribing the
    parenting arrangements that she did, and therefore failed to properly consider
    the best interests of the children. We disagree. The trial judge found that the
    mothers allegations of physical, financial, and sexual abuse were not
    established, and that any other past conduct of the father that may have been
    abusive had no impact on his present ability to be a primary caregiver and
    decision-maker. She found the father is the only parent able to foster and
    protect the boys emotional wellbeing, and moreover, that he is the only parent
    willing to support the children's relationship with the other parent.

[10]

The trial judge reached a reasoned conclusion
    about the parenting arrangements that were in the best interests of the
    children based on her assessment of the evidence and her consideration of the
    correct legal factors.

[11]

For these reasons, we dismissed the appeal.

[12]

Costs of the appeal are awarded to the father in
    the sum of $25,000, inclusive of disbursements and applicable taxes.

C.W.
    Hourigan J.A.

Gary
    Trotter J.A.

B.
    Zarnett J.A.


