



COURT OF APPEAL FOR ONTARIO

CITATION: D.C. v. T.B., 2021 ONCA 850

DATE: 20211126

DOCKET: C69736

Roberts and Thorburn JJ.A. and
    Tzimas J. (
ad hoc
)

BETWEEN

D.C.

Applicant (Appellant)

and

T.B.

Respondent (Respondent)

Michael J. Stangarone and Aria
    MacEachern, for the appellant

Christina Doris and Jessica Luscombe,
    for the respondent

Heard and released orally:
    November 22, 2021

On appeal from the order of Justice Clayton
    Conlan of the Superior Court of Justice, dated April 30, 2021.

REASONS FOR DECISION


[1]

The appellant mother appeals from the final order of the trial judge
    granting the respondent father sole custody/decision making responsibility with
    respect to their child, R., who is 12 years old. The order also temporarily suspended
    any contact between R. and the appellant or members of the appellants family.
    This order was made following a six-day trial of the respondents motion to
    change the final order of Gibson J. dated November 9, 2016. Under the latter
    order, R. resided primarily with the appellant.

[2]

The appellant submits that the trial judge made several reversible
    errors. First, he misapplied the best interests of the child test, particularly
    in the absence of expert evidence, by making the order he did and failing to consider
    less draconian options. Further, the appellant argues, the trial judge failed
    to give adequate weight to R.s views and preferences, and he misapprehended
    and failed to give appropriate weight to evidence, specifically, that the
    appellant attempted to facilitate the relationship between R. and the
    respondent.

[3]

We see no merit in any of these submissions.

[4]

This was a very difficult case of parental alienation. In his lengthy
    and sensitively written reasons, the trial judge painstakingly reviewed the evidence
    and the parties arguments. He began and ended his reasons with the same focus,
    namely, that the most important person in this case is R. His analysis was
    centred entirely on her best interests. Given the trial judges finding of the
    appellant engaging in parental alienation and manipulation of R., it would not
    have been particularly useful to ascertain R.s views and preferences by way of
    a further assessment or having her testify.

[5]

The trial judges conclusion that the appellant has alienated R. from
    her father and has consistently and for many years now engaged in conduct that
    amounts to parental alienation is, as the trial judge stated, well-grounded
    in the trial evidence, and detailed by the trial judge in his reasons, see,
    for example, at paragraph 163. His thorough reasons can leave no doubt as to
    the clear basis for his decision. In our view, expert evidence was not required
    to permit the trial judge to come to his determination of parental alienation
    based on the evidence that he heard and accepted at trial. We see no error in
    the trial judges treatment of Dr. Fidlers evidence which was appropriate
    in the context of all the evidence.

[6]

There is no question that the final order under appeal changes the
    status quo and that the trial judge was alert to the fact that the order would
    represent a drastic change. But the trial judges reasoning for doing so
    appropriately followed the courts guidance in
A.A. v.
    S.N.A.
, 2007 BCCA 363, 243 B.C.A.C. 301, and
A.M.
    v. C.H.
, 2019 ONCA 764, 32 R.F.L. (8th) 1, and is unassailable. As
    he stated, at para. 185 of his reasons:

Given this Court's findings, in particular
    that T. has never abused R. in any way, and that he has never been violent with
    D. as alleged by her, and that he once had a better relationship with R., and
    that D. has engaged in a consistent and long-term pattern of conduct that has
    alienated the child from her father, I have concluded that to maintain the
    status quo would be an error. I cannot focus too much on the short-term effects
    on the child that would result from a drastic change in "custody",
    and therefore keep the child with the parent who has been responsible for the
    manipulation.

[7]

The trial judges order also provides for therapy for R. and other means
    to assist with the transition. It must also be kept in mind that the
    non-communication order is temporary and will be revisited on November 25, 2021.

[8]

The trial judges final order depended heavily on his assessment of the
    evidence and the credibility and reliability of the parties and the other
    witnesses. The appellant is dissatisfied with the trial judges findings,
    particularly those adverse to her credibility, and asks this court to reweigh
    the evidence and revisit those findings. That is not this courts task. We have
    not seen any error that would permit appellate intervention.

[9]

The appellant seeks leave to appeal the $175,000 costs award against her
    on the basis that she was motivated by the best interests of her daughter and
    that the amount of $80,000 would have been appropriate. We do not see any error
    in the trial judges costs award that would warrant leave being granted. An
    award of costs is highly discretionary. While the amount of the award is high,
    it is supported by the trial judges findings in this very difficult case.

[10]

Accordingly,
    the appeal is dismissed.

[11]

As
    agreed, the appellant shall pay the respondent costs of the appeal in the
    amount of $15,000, inclusive of disbursements and applicable taxes.

L.B. Roberts J.A.

J.A.
    Thorburn J.A.

E.
    Ria Tzimas, J. (Ad Hoc)


