



COURT OF APPEAL FOR ONTARIO

CITATION: A.H. v. S.B., 2018 ONCA 347

DATE: 20180409

DOCKET: C63974

Hourigan, Pardu and Huscroft JJ.A.

BETWEEN

A.H.

Applicant (Respondent by Cross-Motion)
(Appellant)

and

S.B.

Respondent (Applicant by motion to change)
(Respondent in Appeal)

Ryan M. Kniznik, for the appellant

Marcy Segal, for the respondent

Heard: April 5, 2018

On appeal from the order of Justice C.S. Nelson of the Superior
    Court of Justice, dated February 28, 2017.

REASONS FOR DECISION

[1]

A.H., the mother appeals from a decision of
    Nelson J. awarding custody to the father S.B. At the time of trial, in late
    2016, the children, then 12 and 11, had lived with the father in Whitby since
    October 2010, when a Childrens Aid Society placed the children with the
    father, taking the position that the children were in need of protection if
    they continued to reside with their mother. The appellant signed Minutes of
    Settlement in April 2012 agreeing that the fathers home would be the principal
    residence of the children. At trial the Office of the Childrens Lawyer
    supported continued residence of the children with their father.

[2]

Both parties agreed that the joint custody to
    which they had previously agreed did not work because of the conflict between
    them, and each sought sole custody. The appellant wanted to move the residence
    of the children to Holland Landing.

[3]

The appellant submits that the trial judge erred
    in failing to hold a
voir dire
to determine
    whether statements made by the children to the mother were admissible.

[4]

We do not agree. The trial judge gave the mother
    the opportunity to investigate the possibility of a
voir dire
to assess whether the statements could be admitted on the ground
    that they were necessary and reliable, and gave her the opportunity to discuss
    this with duty counsel. At no time during this 12 day trial did the mother ever
    ask for such a hearing. All agreed that this was a high conflict custody
    dispute. The trial judge did not err by refraining from embarking on an
    evidentiary hearing, in the absence of any request that he do so.

[5]

The appellant further submits that the trial
    judge erred in refusing to admit hearsay evidence of statements made by the
    children. She argues that the statements were necessary and reliable and should
    have been admitted. We do not agree. The trial judge found that the mothers
    evidence about statements made by the children was not reliable, and that the
    evidence was not necessary,

... In the first
    place, having appointed the OCL, it was not necessary for me to hear evidence
    on the views and preferences of the children other than from Ms. Bleau. Also,
    even if a
voir dire
had been requested, given
    the children's involvement and exposure to the conflict between the parents,
    the out-of-court statements made, mostly to the mother but also to doctors and
    others, would have been highly unreliable."

[6]

The trial judge was satisfied that the report of
    the OCL accurately reflected the childrens wishes,

Ms. Bleaus
    evidence in certain historical areas may not have been entirely accurate but
    she did spend far more time on this case than OCL policy suggests  close to
    five months rather than three months  and I am satisfied that the portion of
    her report dealing with what the children wanted was correct. I shall cover the
    mothers complaints about other portions of the evidence later in this
    decision.

I see no reason
    to suspect that the views and preferences of the children were not adequately
    and properly put before the court.

[7]

The trial judges conclusion that the mothers
    statements would have been highly unreliable was amply supported by the record,
    including the mothers own evidence of her psychological assessment. There is
    no reason to believe that anecdotal evidence of statements made by the children
    would have had any impact on the result in this trial.

[8]

The appellant also submits that the trial judge
    erred in refusing to admit a surreptitious recording made by her of statements
    made by the children. The trial judge indicated, I would not allow her to play
    the tape recording, ruling that parents should be discouraged from attempting
    to obtain evidence from children in this matter. The mother submitted that the
    taping was surreptitious. That to me compounds the difficulty in attempting to
    get the tape recordings placed before the court.

[9]

We are not persuaded that the trial judge erred
    in making this decision. More importantly, all of the necessary evidence about
    the childrens reaction to an incident involving their father was otherwise
    before the court.

[10]

The appellant submits that the trial judge
    should not have awarded sole custody to the father, but rather should have
    awarded sole custody to her on the ground that the father was less attentive to
    the medical needs of the children than she was. The appellant argues that the
    trial judge gave too much emphasis to the long term status quo.

[11]

The trial judges reasons reflect a thorough and
    sensitive weighing of the childrens best interests. He considered the evidence
    of the parties about the care taken by each parent to obtain medical treatment
    for the children, and acknowledged that the mother was quicker to respond to
    those issues. On the whole of the evidence, he concluded nonetheless that the
    childrens best interests were better promoted by their continuing to reside
    with the respondent.

[12]

This decision is owed deference and we see no
    basis to intervene.

[13]

The appellant also seeks leave to appeal from
    the $35,000 in costs ordered for the 12 day custody trial. We see no error in
    principle on the part of the trial judge which would justify granting leave.

[14]

Accordingly, the appeal is dismissed, and leave
    to appeal costs is refused.

[15]

The father does not seek costs of the appeal,
    indicating that the resources of these parties have been depleted by these
    proceedings. On consent, the $25,000 held as security for costs of the appeal
    shall be paid out to the respondents counsel in trust for the respondent, in
    part payment of the trial costs awarded to the respondent.

C.W. Hourigan J.A.

G. Pardu
    J.A.

Grant
    Huscroft J.A.


