



COURT
    OF APPEAL FOR ONTARIO

CITATION: Montforts v. Clarke, 2019 ONCA 723

DATE: 20190917

DOCKET: C65827

Hoy A.C.J.O, Nordheimer and
    Jamal JJ.A.

BETWEEN

Stephanie
    Montforts

Applicant (Respondent in Appeal)

and

David
    Clarke

Respondent (Appellant in Appeal)

Amanda Chapman, for the appellant

Jesse Schmidt, for the respondent

Heard:  September 11, 2019

On appeal from the order of Justice Bonnie
    Wein of the Superior Court of Justice, dated July 24, 2018 with reasons
    reported at 2018 ONSC 4519

REASONS FOR DECISION

[1]

The appellant appeals from the judgment granted
    by the trial judge that awarded the respondent sole custody of the parties then
    twelve-year-old son, along with various ancillary orders.

[2]

The appellant raises three grounds of appeal. A
    fourth ground of appeal was abandoned. First, he contends that the trial judge
    failed to give proper weight to the preferences that the son expressed,
    including those communicated to the Office of the Childrens Lawyer (OCL) as to
    where he would live and go to school. We cannot find any substantiation for
    this contention. The son expressed different preferences during his three
    interviews with the OCL. However, he had expressed a desire to live in
    Orangeville to both the OCL Clinical Investigator and his therapist. The trial
    judges decision was consistent with the sons preference about where he would
    live as expressed to both the Clinical Investigator and his therapist. It was
    also consistent with the sons preference about the appellants weekend access,
    as expressed to his therapist.  The trial judge gave careful and detailed
    reasons for her decision. It is apparent from any fair reading of her reasons,
    that the trial judge was fully aware of, and gave careful consideration to, the
    sons preferences in her analysis of the best interests of the child.

[3]

Second, the appellant asserts that the trial
    judges reasons are inadequate because they do not specifically refer to the
    factors in s. 24(2) of the
Childrens Law Reform Act
, R.S.O. 1990, c.
    12. We do not agree.  As we have already noted, the trial judges reasons were
    careful and detailed. She would be well aware of the requirements of s. 24(2).
    The trial judge was not required to make specific reference to that subsection
    nor was she required to expressly address each and every factor that is set out
    in s. 24(2). What is clear is that the trial judge considered all of the circumstances
    surrounding the child and his best interests in reaching the conclusion
    regarding custody. Indeed, she refers on at least five separate occasions, in
    the course of her reasons, to that very issue.

[4]

Third, the appellant says that the trial judge
    either misunderstood or misapplied the law relating to when it is appropriate
    to order joint custody in the parallel parenting mode. Yet again, we cannot
    find any substantiation for that assertion. The trial judge was well aware that
    this case was one of high conflict between the parties. Indeed, it is apparent
    from the record that the appellant and respondent find it difficult to
    communicate with each other on the most basic matters. A parallel parenting
    order in which each parent is allocated his or her exclusive sphere of
    decision-making still requires some ability of the parents to communicate in
    the face of inevitable gaps in even the most detailed order:  see, for example,
Kaplanis v. Kaplanis
, [2005] O.J. No. 275 at 4 (C.A.).  Here too, the
    trial judges decision was fact-based and entitled to deference.

[5]

Finally, in his factum, the appellant complained
    that the trial judge did not adequately consider his offer to settle in deciding
    the issue of costs. This issue was not pursued in the argument of this appeal.
    However, since it is mentioned in the factum we make a brief comment on it.  As
    her endorsement on costs makes clear, the trial judge was aware of the offer to
    settle.   There was no need, given the disposition that she had made on the
    main issues, for her to give any particular consideration to that offer to
    settle in the context of her overall disposition of the costs.

[6]

The appeal is dismissed.  The respondent is
    entitled to her costs of the appeal fixed in the amount of $
23,000
inclusive of disbursements and HST.

Alexandra Hoy A.C.J.O.

I.V.B. Nordheimer J.A.



M. Jamal
    J.A.





