



COURT OF APPEAL FOR ONTARIO

CITATION: Knapp v. Knapp, 2021 ONCA 305

DATE: 20210510

DOCKET: C67153

Benotto, Miller and Trotter
    JJ.A.

BETWEEN

David Jonathan Knapp

Applicant (Respondent)

and

Keturah Lael Knapp

Respondent (Appellant)

Michael Stangarone, for the appellant

Todd Hein and John C. Noonan, for the
    respondent

Heard: April 19, 2021 by video conference

On appeal from the order of Justice Erika
    Chozik of the Superior Court of Justice, dated June 18, 2019, with reasons at
    2019 ONSC 7353, and from the costs order dated February 19, 2020, with reasons at
    2020 ONSC 1094.

Benotto J.A.:

[1]

The parties are former spouses. They were
    involved in a high-conflict parenting dispute. After two years and multiple
    court attendances, the matter culminated in an 18-day trial. The trial judge
    concluded that joint custody was in the best interests of the children and
    apportioned the decision-making authority in an attempt to avoid ongoing
    conflict between the parents.

[2]

The mother appeals alleging errors by the trial
    judge.

[3]

For the reasons that follow, I would dismiss the
    appeal.

FACTS

[4]

The appellant Keturah Knapp and the respondent
    David Knapp were married for over 13 years before separating in 2017. They have
    two children, now aged 11 and 8. While living together, they had roughly equal
    parenting time with the children.

[5]

The parties are deeply religious. In 2016, the
    appellants sister was going through a divorce and the respondent sent her a
    letter saying he believed she would suffer grave consequences from Jesus if she
    moved forward with her divorce. It was around this time that the appellant and
    respondents own marital problems escalated.

[6]

In early 2017, the parties decided to discuss
    their marital issues before two witnesses from their church. They had two
    meetings. The appellant asked the respondent to email her the biblical passages
    he was reading so she could better understand his position. After the meetings,
    he sent her the passages in an email with the subject line Warning keturah.
    The email included bible passages and comments suggesting wives should always
    submit to their husbands and that it was a sin for a wife to refuse to have
    intercourse with her husband.

[7]

Around two weeks later, without warning, the
    appellant took the children to a womens shelter. She refused to allow the
    respondent to see the children unsupervised. The appellant testified that she
    was afraid the respondent would hurt her or her children to do Gods bidding.

[8]

The Office of the Childrens Lawyer (OCL), Childrens
    Aid Society (CAS), and the Crisis, Outreach and Support Team (COAST) were
    called in. They all investigated the respondent.

[9]

CAS and COAST found the respondent was no risk
    to himself or his children. The OCL recommended the respondent undergo a
    psychological evaluation. He complied and the evaluation found no indications
    of abuse and supported a finding that the respondent was a well-functioning,
    adaptive individual with no major personality disturbances. Nevertheless, the
    OCL recommended the appellant have sole custody of the children.

DECISION BELOW

[10]

The main issue at trial was the parenting plan
    for the children. The trial judge was required to determine where the children
    would live, how much time they would spend with each parent and who would have
    decision-making authority. The trial judge concluded that the best interests of
    the children required a joint custody arrangement with parallel decision-making
    authority, and equal parenting time.

[11]

The trial judge rejected most of the appellants
    evidence, particularly her evidence respecting the allegations against the
    respondent. She found no evidence the respondent was, or was at risk of
    becoming, neglectful or abusive. His letter to the appellants sister and his
    email titled Warning keturah, when read in context, were not meant to be
    threatening.

[12]

The trial judge also rejected the bulk of the
    assumptions and conclusions underpinning the OCLs report. The OCL investigator
    himself had observed no issues with the respondents parenting and failed to
    consider the best interests of the children in making his recommendation.

[13]

The trial judge noted that neither the CAS nor
    COAST had any concerns with the respondents parenting abilities.

[14]

At the conclusion of trial, the trial judge
    allocated decision-making between the parents: the appellant would have
    authority over education decisions and the respondent would have authority over
    medical decisions. This was in part because the appellant is fearful of traditional
    medicine and had a history of misrepresenting medical recommendations to the
    respondent.

[15]

Finally, the trial judge ordered the appellant
    to pay the respondent $250,000 in costs.

ISSUES

[16]

The appellant alleges that the trial judge
    erred: (i) by relying on hearsay when she analyzed the OCL recommendations;
    (ii) by failing to consider the childrens wishes; (iii) by presuming that the
    maximum contact principle amounted to equal parenting time; (iv) by making an
    order that conflicts with final orders that were previously made on consent;
    and (v) by awarding costs to the respondent.

ANALYSIS

[17]

It is always preferable  and in the best
    interests of the children  that the parenting plans be developed by the
    parents. That is why there is an emphasis on resolution in family law
    legislation and practice. When the parents cannot agree, the court must
    formulate a plan for them. This frequently results in at least one parent being
    dissatisfied. So too here.

[18]

I begin with two themes that permeate the
    appellants submissions and then turn to the specific allegations set out
    above.

[19]

The two themes are that the trial judge rejected
    the recommendation in the OCL report and also changed the status quo.

[20]

A trial judge is not required to accept the OCL
    recommendations. They are just that: recommendations. Here, the trial judge
    made extensive factual findings rejecting the foundation of the OCL recommendations.
    She then proceeded to make her own assessment as to the best interests of the
    children.

[21]

A trial judge is not bound by the perceived
    status quo. Here, the trial judge rejected the appellants evidence that she
    was the primary caregiver. Instead, she found that prior to the separation the
    parents shared parenting equally. The only change to the status quo occurred
    when the appellant unilaterally  and wrongly  removed the children from their
    home and kept them in a womens shelter, denying the respondent parenting time.

[22]

Against this background, I turn to the specific
    errors of law alleged.

(1)

Hearsay

[23]

The appellant submits that the multiple reports
    including from COAST and the medical records filed were presumptively
    inadmissible hearsay and the trial judge erred in relying upon then absent
    authentication.

[24]

The trial judge did not err by referring to
    them.

[25]

Many of the medical reports were filed into
    evidence by the appellant. The COAST report was discussed in the OCL report.
    Many were put to both parties in cross-examination. Neither party denied the
    accuracy nor sought to call the declarants as witnesses. The appellant cannot
    now allege that the trial judge erred by relying on documents she submitted.

(2)

Views of the children

[26]

There is no question that the views and
    preferences of children must be considered in all matters affecting them.
    However, they must be viewed in context.

[27]

The children had been taken from their home,
    kept away from their father while their mother professed fear of their father.
    He was then only able to see them in a supervised setting with gradual
    increases. It would be naïve to think that these circumstances would not
    negatively influence the childrens views.

[28]

The trial judge rejected the appellants
    testimony that she feared for her safety or the safety of her children and
    found that her flight to the shelter and subsequent conduct was aimed at
    gaining a tactical advantage in this litigation. In doing so she correctly
    gave the childrens preferences little weight.

[29]

In any event the parties had agreed that the
    views of the children would be put in evidence through the OCL. The then 9-year
    old was somewhat ambivalent about where to live. The then 6-year old wanted
    more time with the appellant. The OCL report was not based on the wishes of the
    children, but on the clinicians own views. The trial judge rejected the
    foundation of the clinicians views and made her own determination as to best
    interest.

(3)

Maximum contact

[30]

The appellant submits that the trial judge erred
    by placing an onus on her to establish that equal parenting was not in the
    childrens best interests. She relies on the trial judges reference to
Folahan
v.
Folahan
,
2013 ONSC
    2966, [2013] W.D.F.L. 4357, where the trial judge said that the onus is on a
    parent to rebut the presumption of equal time. As this court said in
Rigillo
v.
Rigillo
, 2019 ONCA 647, 31 R.F.L. (8th) 361, at para.
    13, the maximum contact principle does not necessarily require equal parenting
    time.

[31]

The
Divorce Act,
R.S.C. 1985, c. 3 (2nd
    Supp.) in force at the time of the trial addressed the maximum
contact principle:

16(10)
In making an order under this section, the court shall give effect
    to the principle that a child of the marriage should have as much contact with
    each spouse as is consistent with the best interests of the child and, for that
    purpose, shall take into consideration the willingness of the person for whom
    custody is sought to facilitate such contact.

[32]

The current provision of
Divorce Act
, is
    more direct:

16(6)
In allocating parenting time, the court shall give effect to the
    principle that a child should have as much time with each spouse as is consistent
    with the best interests of the child.

[33]

The
Childrens Law Reform Act
, R.S.O. 1990, c. C.12,
provided:

20 (1
) Except as otherwise provided in this Part, a childs parents are
    equally entitled to custody of the child.

[34]

The trial judge applied these principles and did
    not mistake maximum parenting time with equal time. Nor did she place an onus
    on the appellant to rebut equal parenting time. Her reasons, read as a whole,
    demonstrate that she was alive to the principle that a child-focused approach
    to achieving as much parenting time as possible with each parent is the
    objective of the maximum contact principle. It may end up being equal time. It
    may not. Each family is different, and the principle is a guide set out to
    benefit children.

(4)

Jurisdiction challenge

[35]

The appellant argues that the trial judge lacked
    jurisdiction to make her order because it amounted to a change of the order of
    Coats J. made on March 20, 2019 which provided that: (i) the appellant is to
    take the children to counselling to assist them in processing and coping with
    their feelings relating to the difficult transitions; and (ii) neither parent
    would have care of the children for three weekends in a row.

[36]

The appellant says that  in light of this order
     the trial judge did not have jurisdiction to order that the respondent make
    all major decisions with respect to all medical, dental, optometrist and
    vaccination issues. Nor, she says did the trial judge have the jurisdiction to
    order a summer schedule of three weeks uninterrupted for each parent. She
    submits that the order is marked final and could only be changed pursuant to
    a motion to change under r. 15 of the
Family Law Rules
, O. Reg. 114/99.

[37]

With respect, this submission borders on the
    frivolous.

[38]

Rule 15 of the
Family Law Rules
does
    not confer jurisdiction. It provides a process by which a party who wishes to
    change a final order can make that request to the court. It is simply wrong to
    suggest that it in any way limits a trial judge in the exercise of her
    discretion.

[39]

The trial judge had jurisdiction to determine
    the best interests of the children in all parenting matters. After an 18-day
    trial dealing almost exclusively with parenting, the trial judge made findings
    of fact and determined the best interests of the children would be served by a
    joint custody arrangement with specified decision-making authority and
    specified time-sharing. She was in no way bound by an earlier order and a
    motion to change was not necessary.

[40]

In any event, the order of Coats J. is no longer
    relevant. The counselling it referred to was in connection with the transition
    and conflict that the children had experienced. The children are no longer in
    transition. They have been in the regime set out by the trial judge for two
    years.

[41]

I am also not convinced that the order is final.
    Despite the word final on the order, all matters of parenting remained
    outstanding and subject to trial  this is the hallmark of an interlocutory
    order.

(5)

Costs

[42]

Costs were awarded to the respondent by the
    trial judge. She found that there were many examples of the appellant acting
    unreasonably and with excessive caution, both before and during the trial. The
    respondent also made two offers to receive somewhat less than 50/50 access,
    both of which the appellant refused. Considering the appellants conduct and
    that the respondent was more successful at trial than in either of his offers
    to settle, the respondent was entitled to substantial indemnity costs.

[43]

The appellant seeks leave to appeal the trial
    judges costs order. She submits that it is inappropriate to order costs in
    parenting cases when the parties have acted in good faith.

[44]

While the trial judge did not find bad faith,
    she did articulate multiple examples of the appellants unreasonable conduct
    which unnecessarily drew out and complicated the proceedings and increased the
    litigious nature of the proceedings. In arriving at her conclusion, she applied
    the guidance of r. 24.

[45]

Except to comment that the words substantial
    indemnity and full indemnity do not apply to r. 24, I see no basis to
    interfere with her discretion in awarding costs to the respondent or with
    respect to her overall assessment of the quantum.

(6)

Fresh Evidence

[46]

The mother appealed the trial decision which was
    dated June 19, 2019. After multiple delays, she perfected the appeal which was
    heard nearly two years later on April 19, 2021.

[47]

One week before the appeal was heard, the
    appellant filed a motion to submit fresh evidence on the appeal.

[48]

Where children are involved, there is generally
    more flexibility with respect to the admission of fresh evidence. However, the
    evidence submitted here does not assist a determination of the issues. It is in
    the form of an affidavit sworn by the appellant which argues why the trial
    judgment is wrong. In effect, it reflects a continuation of the conduct that
    led the trial judge to make a finding of unreasonableness.

[49]

I would not admit the fresh evidence.

CONCLUSION

[50]

I would dismiss the appeal with costs to the
    respondent in the agreed upon amount of $18,000, all inclusive.

Released: May 10, 2021 M.L.B.

M.L. Benotto J.A.

I agree B.W. Miller J.A.

I agree Gary Trotter J.A.


