Decisions of the Court of Appeal

Epstein J.A.:

[1]              In July 2007, a six‑year marriage between a successful dentist and his equally well-educated wife who stayed at home to raise their three sons, ended.  

[2]              Their relationship, both during the marriage and since separation, has been dysfunctional.  With effort, they could have resolved the relatively straight-forward issues relevant to their separation.  This would have involved a certain degree of mutual understanding and acceptance of their own character traits that have prevented a successful marriage, in order to settle their differences with substantially less damage to each other, their children and their resources. 

[3]              But, that did not happen. Intransigence and a lack of objectivity about themselves and each other led to a 25-day trial in which virtually every conceivable issue relevant to the parties’ separation remained in dispute.  Fortunately, during trial they were able to resolve some matters relating to division of property and the appellant husband’s income.

[4]              The primary issues left for the trial judge to determine were custody, access, spousal and child support and the appellant’s claim for damages based on malicious prosecution.  

[5]              In a lengthy and detailed judgment, the trial judge granted sole custody of the boys to the respondent, child support in the monthly amount of $4,816 based on the appellant’s income of $300,000, and spousal support to be paid by the appellant in the monthly amount of $3,851 with a review to be undertaken as of October 12, 2012.  He dismissed the respondent’s claim for retroactive child and spousal support and the appellant’s claim for damages for malicious prosecution.  He also dealt with ancillary matters including ordering that the appellant’s dentistry corporation secure the support orders and equalization payment.   

[6]              After receiving cost submissions, the trial judge awarded costs in favour of the respondent in the amount of $254,500, with $10,000 designated as a support order.

[7]              The appellant contests every aspect of the trial judge’s order that was not in his favour.  While many issues have therefore been raised in this appeal, the focus here, as it was before the trial judge, is the custody of the children and matters related to that decision; namely, child and spousal support.

[8]              In relation to the costs award, the appellant challenges the trial judge’s order making $10,000 of the costs award enforceable as spousal support. The same issue is raised in the respondent’s cross-appeal: she submits that the entirety of the costs award should be designated as support, and thus enforceable under s. 1(1) of the Family Responsibility and Support Enforcement Act, S.O. 1996, c. 31.  The enforcement system established under that Act is commonly referred to as FRO.

Trial Fairness and the Custody Order

[9]              The mainstay of the appellant’s position is that he was denied a fair trial. The unfairness, argues the appellant, arises out of the cumulative effect of the trial judge’s refusal to admit evidence critical to the determination of custody, upon which so many other issues depend. 

[10]         Specifically, the appellant submits that the trial judge erred in refusing to admit audio tapes of recordings of conversations between himself, the respondent, and the children – tapes that he recorded without the respondent’s knowledge.  He also contends that the trial judge erred in refusing to admit a report by a social worker he hired to critique the court-ordered custody and access report. Finally, the appellant contends that the trial judge erred in refusing to admit the reports and testimony of his psychologist who, on the basis of his counselling of the appellant and visits with the appellant and the boys, was in a position to assist the court as to the appellant’s fitness as a father. 

[11]         In my view, there was nothing unfair or improper about the conduct of the trial.  Specifically, there is no reason to question the exercise of the trial judge’s discretion not to admit the proposed evidence about which the appellant complains.   

[12]         With respect to the taped conversations, the trial judge relied on solid principles that took into account not only the sound public policy of trying to discourage the use of secretly recorded conversations in family proceedings but also his assessment of the probative value of the tapes in relation to the issues before him.  

[13]         Turning to the proposed evidence of the social worker and the psychologist, it is my view that the trial judge properly excluded it as not being necessary under R. v. Mohan, [1994] 2 S.C.R. 9.  

[14]         I find no fault with the trial judge’s refusal to admit the report on the basis of (1) its frailties, and (2) the fact that its value – to impeach the report of the court-appointed expert – remained available to the appellant through cross-examination and, ultimately, argument.   I strongly support the view expressed by Justice Wein in Mayfield v. Mayfield (2001), 18 R.F.L. (5th) 328, at para. 44 (Ont. S.C.), that

in most cases, it is simply not necessary or appropriate to have the parties bring forward the evidence of a collateral critique. A social work critique may of course be done to assist counsel in formulating questions for cross-examination of the assessor or to assist counsel in developing an argument concerning the weight to be attached to an assessment report but it will rarely be “necessary” to introduce the critique as original evidence or to call the critique as a witness. The expense in most cases could be better spared or applied to an independent assessment.

[15]         The exclusion of the reports of Dr. Peterson, the appellant’s psychologist, and his proposed testimony, was similarly justified. It was open to the trial judge to conclude that the reports and testimony would have been of little use given that the doctor has no background in child psychology, has never observed the children with the respondent, and was admittedly biased in favour of the appellant. 

[16]         In the end, the record overwhelmingly supports the trial judge’s custody disposition.

Malicious Prosecution Claim

[17]         The malicious prosecution claim arises from the appellant’s position that the respondent, by accusing the husband of physical abuse, abused the criminal justice system to interfere with his chances of obtaining a favourable custody order.  

[18]         In considering this aspect of the appellant’s case, the trial judge carefully reviewed the facts relating to each of the assault charges that were laid against the appellant.  Applying these facts to the four-part test set out in Nelles v. Ontario, [1989] 2 S.C.R. 170, the trial judge concluded that the appellant failed to establish that the test had been met in relation to any of the charges. I find no fault with this conclusion.

Child Support

[19]         Section 10(2)(a) of the Federal Child Support Guidelines, O. Reg. 391/97, permits courts to vary the amount of child support to avoid imposing undue hardship on a parent or spouse who “has responsibility for an unusually high level of debts reasonably incurred to support the parents or spouses and their children during cohabitation or to earn a living.”  The legal costs associated with this litigation caused the appellant to accumulate an astonishing amount of debt – the estimate is somewhere between 1 and 1.5 million dollars.  The trial judge rejected this argument on the basis that the appellant’s approach to the litigation was such that the amount of money he spent was “staggering” and “out of proportion”.  This description is apt and, in itself, justifies the trial judge’s conclusion that the appellant did not meet the onus he faced in demonstrating that the guidelines’ amount of child support should not apply. 

The Costs Award – Appeal and Cross-Appeal

[20]         The costs award, its amount and the extent to which it was or was not designated as support for the purposes of being enforced through FRO was raised as a specific issue on appeal and was the subject of the cross-appeal. 

[21]         Turning first to quantum, in my view, the trial judge made no error. In the context of family law disputes, a court need not find special circumstances to make a costs award approaching substantial indemnity: see Biant v. Sagoo (2001), 20 R.F.L. (5th) 284, at para. 20 (Ont. S.C.).  Here, the trial judge, well-experienced in family law, carefully considered all factors relevant to the award of costs. The amount awarded was, in the circumstances of this unfortunate case, reasonable.  

[22]         This leads to the final issue – the enforceability of the costs award through FRO.

[23]         Section 1(1)(g) of the Family Responsibility and Support Enforcement Act, S.O. 1996, c. 31 provides that a support order enforceable by FRO can include provision for legal fees or other expenses arising in relation to support.

[24]         Each party submits that the trial judge erred in his determination of how much of the respondent’s costs would be subject to FRO’s enforcement mechanisms.

[25]         The court has considerable discretion over how to deal with a request that legal costs be designated as support for the purposes of enforcement by FRO, a designation that is complicated when, as here, in addition to support, a number of other issues are litigated.   In this case the trial judge approached the problem one way – he did his best to identify the portion of the trial consumed by the support dispute, assigned a cost amount to it and ordered that amount designated as support.  He may have chosen not to attempt to perform what is admittedly a somewhat arbitrary dissection of costs.  But he cannot be faulted for doing what he did. The statute and case law support an approach of this nature: see Hatcher v. Hatcher, [2009] W.D.F.L. 5320, at paras. 30-36 (Ont. S.C.)

[26]         In terms of the appellant’s position, it is my view that there is nothing that warrants interference with the trial judge’s designation of $10,000 of the costs award as part of the child support order for enforcement purposes.  In terms of the cross-appeal, to designate all of the costs of the appellant by cross-appeal as support for the purposes of FRO enforcement would not only be an uncalled for interference with the discretion of the trial judge but also may be considered unjust in the light of the resources expended in pursuing issues unrelated to support, such as the malicious prosecution claim.  

[27]         Finally, the trial judge ordered that all amounts owed by the appellant be secured and enforceable against not only the appellant personally, but also against his dental business.  This was an order that made sense, particularly given the length of time over which the appellant will be paying the equalization amount (10 years with no interest).

[28]         For these reasons, both the appeal and cross-appeal are dismissed.  The respondent is entitled to her cost of the appeal in the amount of $23,000.  The appellant is entitled to his costs of the cross-appeal in the amount of $3,000.

RELEASED: “JCM”             “G.J. Epstein J.A.”

“OCT 25 2011”                    “I agree J.C. MacPherson J.A.”

                                             “I agree H.S. LaForme J.A.”