



COURT OF APPEAL FOR ONTARIO

CITATION: Voisin v. Voisin, 2017 ONCA 165

DATE: 20170227

DOCKET: C62389

LaForme, Pepall and Pardu JJ.A.

BETWEEN

Matthew David Voisin

Applicant
(Appellant in Appeal)

and

Karen Ann Voisin

Respondent
(Respondent in Appeal)

Glenda, D. McLeod, for the appellant

John Opolko, for the respondent

Heard: February 23, 2017

On appeal from the order of Justice Flynn of the Superior
    Court of Justice, dated June 13, 2016.

ENDORSEMENT

[1]

Matthew David Voisin appeals from an order of
    June 13, 2016 arising from a motion to change aspects of previous orders
    governing custody and access to two children. The parameters for that hearing
    were set by a consent order of April 21, 2016 which provided that the argument
    on the motion to change would be limited to the issue of whether an order in
    terms of recommendations #1, 5 and 6 contained in a report of the Office of the
    Childrens Lawyer should issue, or whether minor adjustments requested by the
    father should be made to those terms. The parties agreed that the other
    recommendations could be incorporated into an order.

[2]

The report of the Office of the Childrens
    Lawyer noted that both parents originally claimed sole custody of the children
    and noted that long standing hostility between the parents was unlikely to
    dissipate and that the conflict was harmful to the children. The motion judge
    was concerned about the effect of the acrimony on the children, noting, it may
    seem that the adults in this contest have lost sight of the principal objects
    of their affection and attention: the two children of the marriage.

[3]

The report noted that the mother had had final
    decision making authority for more than four years pursuant to a previous judgment
    and that things were going well for the children. It observed that Ms. Voisin
    had maintained a stable residence and school for the children, that she had
    supported the relationship between the children and their father, followed the
    rather complex parenting schedule and kept the father informed about the
    childrens welfare.

[4]

The recommendations to which the mother agreed
    and the father wanted minor changes are as follows:

1. Ms. Voisin should have sole custody of the
    children, with a recommendation that she consult the father regarding major
    decisions related to the children before making the final decision.

5. The children should spend time with their
    father from Monday after school or 4:00 p.m. until Thursday morning at school
    or 9:00 a.m. The children should spend time with the mother from after school
    on Thursdays or 4:00 p.m. to Monday morning at school or 9:00 a.m., with the
    proviso that where Monday was a statutory holiday, the children should remain
    with the mother until Tuesday morning at school or 9:00 a.m.

6. To facilitate the shared parenting
    schedule, it was recommended that the parties live within 30 km. of each other.

[5]

The motion judge noted that there had been no
    material change in circumstances. However, based on the consent of the parties
    to a determination of the issues as framed, he dealt with the fathers proposed
    amendments to the recommendations. He indicated that the first recommendation
    in issue recognized and continued the de facto sole custody in the mother, and
    that the fathers requested minor adjustment contradicted an arrangement to
    which he had already agreed, sole custody with the mother. The father argued
    that the second recommendation did not provide for decision making about the
    children while they were at school. The motion judge noted that the final
    decision making power on the part of the mother in the first recommendation
    dealt with this issue, and continued the arrangement established by the prior
    order that gave the mother final decision making authority.

[6]

The preceding order prohibited either party from
    relocating the childrens residence outside the cities of Kitchener-Waterloo. The
    motion judge noted the recommendation that the parties live within 30 km. of
    each other and took judicial notice that the distance along a LRT under
    construction between the two cities was 19 km.

[7]

The motion judge did not err in making the
    decisions the parties asked him to make pursuant to the consent order. The
    motion judge had the benefit of a lengthy and very thorough report of the Office
    of the Childrens Lawyer. There was an ample basis for him to conclude that the
    childrens best interests were served by those recommendations. The previous
    final order of June 17, 2011 provided that the mother had the right to make
    major decisions for the children without the fathers consent after
    consultation with the father, except for certain specified matters. The
    recommendation of the Office of the Childrens lawyer continued this
    arrangement and slightly altered the matters that could not be changed without
    the fathers consent.

[8]

The fathers position asserted many times before
    the motion judge and this court was that if there was no change in
    circumstances, no order should be made to alter the original order of June 17,
    2011 providing for final decision making by the mother, except for specified
    matters which required his consent. This was inconsistent with his own request
    for certain changes to the previous order.

[9]

The previous order of June 17, 2011 provided as
    follows:

5. Neither party shall relocate the childrens
    residence outside the cities of Kitchener-Waterloo, Ontario

6(a) In September, 2011 the children shall
    attend the school in the catchment area where the Mother resides.

6(b) Save and except as set forth in
    subparagraph 6(a) herein, the Mother shall not change the childrens school
    without the Fathers prior written consent or order of the court.

7. The children shall continue to attend Dr.
    Kennel as their family physician unless both parties agree otherwise.

[10]

The significant changes the father wanted to
    make to the recommendations made by the Office of the Childrens Lawyer as
    submitted to the motion judge and to this court on appeal are as follows:

The Mother shall not change the childrens
    school, doctors or dentist without the written consent of the father or an
    order of the court.

The children shall reside in the care and
    control of the father from Monday morning before school (or 9:00 a.m.) until
    Thursday afternoon after school (or 4:00 p.m.)

The father and mother shall live within 30 km.
    of each other and must remain resident in either the geographical jurisdiction
    of the City of Kitchener or the City of Waterloo.

[11]

There was no dispute about the time the father
    was to spend with the children. He wanted that characterized as care and
    control of the children, despite his consent to sole custody in favour of the
    mother.

[12]

The fathers consent to sole custody in the
    mother was fundamentally inconsistent with the position advanced in his factum
    on appeal, and before the motion judge, that he should have care and control of
    the children while they were at school, from Monday mornings to Thursday
    afternoons.

[13]

While the father argued on appeal that the
    regime established by the previous order of June 17, 2011 should remain in
    effect, absent demonstration of a material change in circumstances, he himself
    was proposing changes to that regime. Under the previous order the mother had
    the right to change the childrens school, within the catchment area for her
    residence; his proposal would have further restricted the mothers choices.

[14]

The proposal that his consent or a court order
    be required before the mother could change the childrens dentist was a new
    restriction not present in the previous order.

[15]

The father acknowledges that he had consented to
    sole custody in favour of the mother, but argues on appeal that despite that
    consent, he should have decision making power about the children while they are
    at school. Given the highly conflicted relationship between the parties
    referred to by the motion judge and the Office of the Childrens Lawyer the
    motion judge did not err in refusing to create further opportunity for
    conflict. The father focuses on cases dealing with determination of whether a
    child is with a parent for 40% of the time so as to relieve that parent from
    some child support obligations, but those cases do not address whether it would
    be in the childrens best interests to give him decision making power over the
    children while they are in school. The material before the motion judge did not
    support that position.

[16]

The parties themselves consented to material
    changes to the previous order, as recommended by the Office of the Childrens
    Lawyer, except for their arguments about recommendations 1, 5 and 6.

[17]

Given the manner in which the parties placed
    their differences before him, it was open to the motion judge to concentrate on
    the best interests of the children.

[18]

There is no basis to conclude that an order
    giving the mother the liberty to live within 30 km. of the fathers residence
    rather than confining her to Kitchener or Waterloo is in any way detrimental to
    the childrens best interests.

[19]

The father suggests on appeal that the hearing
    before the motion judge was somehow procedurally unfair because of the way the
    arguments were made. There is nothing in the record that supports that
    suggestion. Both parties consented to the nature of the decision to be made. Each
    filed a factum. Their positions were fully before the motion judge who heard
    argument from both parties.

[20]

The father also seeks leave to appeal from the
    motion judges decision awarding the mother costs. The mother sought partial
    indemnity costs to December 9, 2015 and full indemnity costs thereafter because
    of her Offer to Settle made December 9, 2015.

[21]

The motion judge observed that the father should
    have accepted the Offer to Settle.

[22]

The father alleged that the mother had acted
    unreasonably, in a manner approaching bad faith because she changed the basis
    of her argument at the motion. The motion judge observed that if the father was
    taken by surprise he didnt vigorously object at the hearing.

[23]

He held that the mother was presumptively
    entitled to costs because she was substantially successful. Despite the
    mothers success the father sought costs of the motion from the mother of
    $31,302.54.

[24]

The motion judge observed that despite the
    fathers consent to sole custody, he now wished to resile from that position,
    and indicated that the father brought the motion because of his fear of losing
    control of the entire process.

[25]

Given the mothers success on the motion and her
    offer to settle, the motion judge did not err in granting her the costs she
    claimed.

[26]

No reviewable error has been shown, leave to
    appeal costs is granted, but the appeal on the merits and as to costs is
    dismissed.

[27]

Both parties characterized this appeal as a
    complex matter. The mother submitted a partial indemnity costs outline claiming
    $22,869.24, and the fathers partial indemnity costs totaled $15,160.79. Neither
    party can afford this litigation. We are told that costs dealing with various
    matters between the parties over the years exceed $300,000. We can only
    reiterate the observations of the motion judge and the Office of the Childrens
    Lawyer that this conflict has been harmful to the children and this family.
    Costs should follow the result of this appeal. There was a motion for an
    extension of time to appeal to which there should have been a consent. In all
    the circumstances, costs to the respondent mother of the appeal, all inclusive,
    fixed at $12,000.

H.S.
    LaForme J.A.

S.E.
    Pepall J.A.

G.
    Pardu J.A.


