GPJK v CAK, 2023 MBCA 55

Citation: GPJK v CAK, 2023 MBCA 55 Date: 20230615 Docket: AF22-30-09798 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Holly C. Beard Mr. Justice Marc M. Monnin Mr. Justice Christopher J. Mainella BETWEEN : ) L. I. Z. Pinsky g. p. j. k. ) for the Appellant ) (Petitioner) Respondent ) K. C. Misko ) for the Respondent - and - ) ) Appeal heard: c. a.

k) October 18, 2022 ) (Respondent) Appellant ) Judgment delivered: ) June 15, 2023 NOTICE OF RESTRICTION ON PUBLICATION: An order prohibiting any press, radio or television reports from disclosing the name or any information likely to identify any person involved in the proceedings as a party or a witness has been made pursuant to section 75(2) of The Child and Family Services Act , CCSM c C80 ) and shall continue. monnin JA Introduction [ 1 ] After a lengthy trial in the Family Division of the Court of Queen’s Bench (as it then was), the trial judge varied the existing parenting arrangements which had been in place for a number of years under an interim custody order and substituted a shared custody arrangement granting equal access and care and control to the parties with no final decision-making authority to either party.

The respondent (the mother) appeals from that order seeking a return to the situation as it stood prior to trial, namely, her having primary care and control of the parties’ children. Background [ 2 ] The parties are not married. They began cohabiting in or about June 1995 or 1998 (while the date is disputed, it is not relevant to any issues raised in this appeal). They separated on May 3, 2014. By the time of the separation, they had three children: a son who was 14 years of age and twins (a girl and a boy) who were 11 years of age at the time of the trial in December 2021.

They are now almost 16 and 12 respectively. [ 3 ] Each party has a very different view of their relationship prior to the separation and their respective roles with regard to the care of their children. The mother viewed herself as the children’s main caregiver with family and paid support while the petitioner (the father) was concentrating on his business. The father, on the other hand, says that he arranged his affairs such that he was often available to provide care for the children at home.

The relationship was acrimonious and, after allegations of marital infidelity and an incident of possible physical violence, the separation occurred. [ 4 ] After the separation and for a period of time thereafter, the mother had primary care and control of the children and the father had very limited access.

The father’s take was that the mother made his access difficult, while the mother maintains that the father sought to obtain access at times that were difficult for her or did not fit with her schedule. [ 5 ] In September 2015, cross-motions were heard for custody and primary care and control or, in the alternative, for

periods of care and control. The motion judge, commenting on the various concerns raised by both parties as to parenting style and motivation in seeking greater access, concluded that those matters were best left to a trial and set a

schedule of periods of care and control allowing the father three and one-half hours every Wednesday and overnights on every alternate weekend. He noted that the veracity of each party was an issue for trial, where credibility would likely be the main focus.

He did note that a child welfare investigation of the respective households concluded that the children were not in need of protection from either party and that it was not necessary to maintain an open protection file to monitor the status of either household. [ 6 ] After the interim order, the parties settled into what could only be called an uneasy period of high conflict.

While the general directions provided by the interim order were followed, in that the father, for the most part, received weekly access and alternate weekends, his attempts to obtain some flexibility on a number of occasions were rarely successful. The mother’s position was that the requests were for the father’s benefit and did not take the children’s best interests into consideration. [ 7 ] A trial was scheduled, but the dates were cancelled when it appeared that a resolution was in the offing. However, a formal agreement could not be reached and no settlement was finalized.

The father balked at the costs of proceeding to trial when he received an estimate of over $300,000 and he moved to self-representation but did not set a new trial date. [ 8 ] After receiving a request from his son for greater time with him, the father decided to proceed to trial after all and retained new counsel. The trial proceeded over a period of 10 days. The father gave evidence, as did his sister. The mother gave evidence and called the late Dr. De Luca, a psychologist who had been providing services to the three children and the parents over the prior six years.

She was called as a participation expert and was not allowed to provide recommendations for the future care and control of the children. Financial Situation [ 9 ] The parties are both, at this juncture in their lives, relatively financially secure. The father has been operating a successful chiropractic clinic for over 35 years. While his income during the pandemic was reduced somewhat, at the time of the trial, it was approximately $250,000 per year.

He voluntarily paid child support in the amount of approximately $3,500 per month into a bank account to which the mother had access and which she used for the children’s expenses at her discretion. [ 10 ] As to the mother, she is the president of a successful family business that provides staffing to the healthcare industry across western Canada. She is involved in that business with her sister and her father, each owning one third of the shares of the corporation.

Attempts were made by the father to obtain financial information regarding the business and related corporations but, apart from those held solely by the mother, his motion for access to that information had been refused by a judge. [ 11 ] The mother had purchased a home worth over $1 million in a high-end neighbourhood of Winnipeg using a shareholder’s loan from her business, as well as part of an inheritance. The home is owned by a corporation, which holds it as bare trustee, but the family does not live in the home and it remains empty. The mother and the children live with her sister and parents.

The tuition for the private schools attended by the children since September 2021 of over $24,000 annually is paid by the mother. [ 12 ] The father’s position was that the mother’s business warranted a substantially higher salary than the $80,000 she was receiving and that income of approximately $250,000 should be imputed to her. There was no evidence of comparable salaries for executives operating similar businesses. Trial Decision [ 13 ] The trial judge rendered a lengthy oral decision immediately following the conclusion of the 10-day trial.

From the tenor of the trial judge’s reasons, it is clear that she considered the mother’s conduct to be an attempt to prevent the father from having meaningful access to the children in a manner which the trial judge did not consider to be in their best interests. No doubt motivated by that belief, she was of the view that a rapid change moving to a joint custody arrangement was necessary, thereby leading her to render a lengthy oral decision on the spot. [ 14 ] Whether to render a decision orally or in writing is the prerogative of the trial judge in their discretion.

Further, in each case, a judge must consider whether giving a quick decision overrides the need for a more detailed and complete analysis. Where there is urgency and the issues are not complicated, an oral decision may well be appropriate; however, a lengthy trial will often signal the need for that more detailed and complete analysis. In this case, as some of the arguments have emerged on appeal, a more considered and organized decision may have prevented further proceedings or at least avoided some of the grounds that have been raised on appeal.

Evidentiary findings that are more detailed carry out the judge’s primary fact-finding role; reasons that are clearly articulated enable a more deferential review of the reasons on appeal and reduce the need for appellate judges to get involved in the fray. [ 15 ] The trial judge’s oral decision can be summarized as follows. [ 16 ] After reviewing the proceedings to the date of trial, the trial judge confirmed that the first issue before her was the parenting schedule, with the father asking for a shared parenting

schedule in order to give the children the benefit of both parties’ involvement in their lives in a full and meaningful way. The father’s position was that the minimum parenting

schedule that had been put in place by the mother and subsequently by the interim custody order did not meet that need.

He argued that, since the separation, the mother had engaged in a pattern of conduct designed to prevent the children from having a full relationship with him and his family, to sabotage any attempts by him to have more time with them and to impress upon them the belief that they were not free to feel safe in his care. [ 17 ] The trial judge summarized the mother’s position as keeping the then-current order in place, arguing that the father’s actions did not demonstrate that he truly wanted equal involvement in the lives of the children but, rather, wished to reduce his financial obligations.

She argued that the father’s actions had been strategic and litigation focused and that he had chosen not to avail himself of the time and opportunities that had been extended to him to be more involved in the lives of the children, placing his needs and priorities over theirs. The trial judge noted that the mother’s position was that the father was incapable of or unprepared to ensure that the children

had sufficient boundaries, rules or guidance to ensure that they were safe and healthy in all respects. The mother also argued that the father lacked the parenting ability to adequately supervise the children, so as to put them at risk.

As well, the mother’s position was that the father was physicall y abusive to the children and, in particular, to the sons, and that the father disparaged the mother and her family to the children. [ 18 ] The trial judge recognized the obligation to be guided by section 39(2.1) of The Family Maintenance Act , CCSM c F20 (the Act ), which, in her words, “[included] a laundry list of considerations that [she was] obliged to consider, where they [were] appropriate” to the case. [ 19 ] Commenting on the evidence, the trial judge noted that a significant amount of the evidence consisted of statements of the children made to the witnesses.

She recognized, given that it was hearsay evidence, her obligation to determine its admissibility and reliability before assessing what weight needed to be placed on it. She commented on the scope and the voluminous nature of the documentary evidence that she received, consisting of discussions between the parties over day-to-day disputes concerning scheduling, as well as hard copies of electronic messages. [ 20 ] The trial judge also commented on Dr.

De Luca’s evidence, which she described as being a recitation of comments to her by all of the children, but with no contextual background as to the statements made so as to allow her to test its reliability. In her view, Dr. De Luca’s evidence displayed little characterization about how the children were doing psychologically. The trial judge also indicated that, despite Dr. De Luca wishing to do so, she disregarded attempts to recommend future parenting arrangements from Dr.

De Luca. [ 21 ] After reviewing the frequent complaints by the mother to a child welfare agency alleging that the father had been physically abusive to the children, the trial judge accepted the father’s version of events, rather than the mother’s, and concluded that the fact of four investigations with no substantiation amounted to a campaign by the mother against the father.

However, the father did not escape unscathed from comments about his conduct—particularly his inability to control himself in interactions with the mother’s family. [ 22 ] In no particular order, the trial judge found that the father was motivated by wanting a fuller, normalized role in the lives of his children and to let them know and feel that they were at least as safe with him as they were with the mother.

She found that the mother was loving, thoughtful and hardworking with all three children and that she had taken responsibility for ensuring that their lives were carefully planned out, but that she was unable to be supportive of the father’s relationship with the children. She concluded that the assertions with respect to the father being abusive and heavy-handed lacked the necessary objective foundation, and that the father had been required to live under a microscope as a result of being accused of intentionally harming his children.

She concluded that the father did follow a decision-making process which did take the best interests of the children into consideration. She found that, in the end, decisions that were best for the children had been made by both parents. [ 23 ] Concluding that the children needed to be out of the conflict and that the father had a lot to offer the children as a teaching parent, as did the mother as a caretaking parent, the trial judge found that the children deserved to have the benefit of a full and meaningful relationship with both parents.

She therefore ordered a shared custody arrangement on a 5-2-2-5 schedule.

She also ordered that Christmas vacation be equally split, contrary to what had taken place previously, and made similar provisions for other holidays. [ 24 ] As to financial issues, the trial judge determined that the father’s income should be imputed at $250,000 without adjustment for a non-recurring capital gain. [ 25 ] As to the mother’s income, which was set at $80,000 over the last number of years, the trial judge refused to impute other income arising from the mother’s shareholdings in the businesses in which she was involved. [ 26 ] Taking those two incomes, the trial judge determined that, while there was a set-off payment that arose from it—$2,616 payable by the father—she exercised her discretion and ordered that it be paid at one half of the set-off amount, namely, $1,300 per month commencing January 1, 2022. [ 27 ] Finally, as to decision-making authority, the trial judge considered the age of the children.

Since they were adolescents, it was necessary that matters move forward in a cooperative manner and she was not prepared to give one parent the power to veto the other. It was her expectation that, with consultation, the parents would cooperate and ultimately decide what was in the children’s best interests. Motion for New Evidence [ 28 ] At the hearing of the appeal, the mother, through counsel, moved to admit new evidence concerning events that had occurred to the children after the final order had been pronounced and put into effect.

The evidence consisted of affidavits of the mother and some documentary evidence from the children’s schools. The mother’s evidence suggested that the eldest son had attempted suicide and was suffering from the change in the parenting schedule, namely, the greater amount of time being spent with the father. The evidence similarly suggests the other two children were having negative reactions to the changes as well.

In response, the father wished to file an affidavit providing a different version of the post-trial events and responding to the allegations that the children were suffering from the changes imposed by the final order. [ 29 ] No cross-examination on the affidavits took place. This Court, on hearing the appeal, reserved its decision on whether to admit the new evidence. Issues [ 30 ] Apart from the question of whether the new evidence should be admitted, I see four issues advanced by the mother in

her attempt to overturn the findings, namely: (

a) Did the trial judge err by reading the entire examination for discovery transcript of the father? (

b) Did the trial judge err in her understanding or limiting of the evidence of the participation expert, Dr. De Luca? (

c) Did the trial judge err in her analysis of the best interests of the children pursuant to section 39(2.1) of the Act by failing toconsider all aspects of the best interests criteria and not providing adequate reasons? (

d) Did the trial judge err in her analysis of child support, both retroactive and ongoing, by failing to apply the

section 9 analysis ofthe Child Support Guidelines Regulation, Man Reg 58/98 (the Guidelines) required in shared parenting cases and failing to provideadequate reasons? New Evidence [31] The evidence which the mother seeks this Court to admit arises after the final order was pronounced. In fact, thesuggestion of the mother is that the effect of the final order is what led to the deterioration of the eldest son’s mental health and problemsfor all of the children.

The remainder of the evidence deals with attempts by the mother to arrange for psychological help and the lack ofcooperation from the father. [32] While there is a distinction between evidence which was available before the trial but not called (fresh evidence) andevidence which arose after the trial (new evidence), the test to determine whether either should be admitted on appeal follows the samecriteria as set out in Palmer v The Queen, (SCC), [1980] 1 SCR 759 (see Barendregt v Grebliunas, 2022 SCC 22 atparas 54-55). [33] The four criteria set out by the Supreme Court of Canada in Palmer are: (

a) the evidence could not, by the exercise of due diligence, have been obtained for the trial; (

b) the evidence is relevant in that it bears upon a decisive or potentially decisive issue; (

c) the evidence is credible in the sense that it is reasonably capable of belief; and (

d) the evidence is such that, if believed, could have affected the result at trial. (See Barendregt at para 29; and Awasis Agency of Northern Manitoba v MEF, 2023 MBCA 14 at para 16.) [34] Karakatsanis J, for the majority in Barendregt, emphasized that the admission of additional evidence on appeal will berare (see para 31). She also emphasized that, in a family proceeding, the family legislation includes a variation scheme that addressesfactual developments that postdate a trial (see

section 46 of the Act) and that appellate courts must be careful not to usurp the role that hasbeen assigned to a judge of first instance in relation to the variation of an order (see paras 4, 6, 56-61). [35] For our purposes, this motion can be determined on the third Palmer criterion, which requires that the proposed newevidence must be credible.

As Karakatsanis J noted, new evidence “has not been put to the test of cross-examination or rebuttal at trial,and the adverse party may not have had the ability to verify its accuracy” (at para 46). [36] The difficulty with the proposed evidence is that it emanates primarily from an assessment by the mother ofinformation she has obtained from the children. It suffers from the same issue that was raised by the trial judge, namely, that it is notonly hearsay, but it is subject to considerations of weight depending on the circumstances. This is not third party evidence which isunchallenged.

Given the evidence in response from the father, there are issues of credibility and ultimate reliability. It is, in my view,not the type of evidence which meets the third criterion. [37] In addition, as to the fourth criterion of whether it could have affected the result at trial, given its lack of particularity, itis but another piece of evidence to be used in the mix.

Unless there is more cogent and compelling evidence from a professional or anunassailable third party, it is unlikely to have affected the trial judge’s reasoning in the end. [38] I am of the view that the evidence does not meet the requirements set out in Palmer and should not be admitted for thepurposes of this appeal. [39] Accordingly, in my view, the motion to adduce new evidence should be dismissed.

Did the Trial Judge Err by Reading the Entire Examination for Discovery Transcript of the Father? [40] The mother’s first argument on appeal arises from a statement by the trial judge in her oral decision where she said thatshe “had the opportunity of reading an examination for discovery transcript in which [counsel for the mother] asked questions of [thefather].” The mother argues that a reasonably informed objective person would take the judge at their word and would conclude that sheread and considered the entire transcript as evidence.

As such, this gives rise to a reasonable apprehension that the process and fairnessof the trial were tainted against the mother. [41] There is no doubt that the reading of the entire transcript of the examination for discovery of the father would becontrary to the rules governing the use of examination for discovery transcripts (see r 31.11 of the MB, Court of King’s Bench Rules, MR553/88) and established jurisprudence (see Telecommunication Employees Association of Manitoba Inc et al v Manitoba TelecomServices Inc et al, 2005 MBQB 259).

The wording used by the trial judge is ambiguous and may be the result of proceeding with alengthy oral decision immediately upon the conclusion of the trial. However, a closer review of the manner in which the trial judge dealtwith the read-ins from the examinations for discovery does not support the mother’s argument.

[ 42 ] The first time the mother’s trial counsel (not the same as counsel on the appeal) dealt with the read-ins from the transcript of the examination for discovery of the father was when counsel asked the Court for direction on whether he should actually read them in or just provide the Court with copies. After discussion with counsel for the father as to whether there was any issue as to context, the Court invited the mother’s counsel to provide it with the list of read-ins.

At a later time, the trial judge indicated to the parties that she had the “read-ins” and that she “read them.” There is no mention of her reading the entire transcript. [ 43 ] There is also the now well-accepted principle that, where a trial judge’s reasons are ambiguous, an appellate court should assume that trial judges know the law which they routinely have to apply and have followed it unless there is clear indication to the contrary ( see R v GF , 2021 SCC 20 at para 74 ).

Apart from the unfortunate wording used by the trial judge in her oral decision, there is nothing which would suggest that she used the transcript improperly or did anything but read the questions and answers which she was asked to read. Evidence of Dr. De Luca [ 44 ] The mother argues that the trial judge failed to fully appreciate the critical evidence of Dr. De Luca, who was called as an expert by the mother. She argues that, as the children’s treating psychologist, Dr.

De Luca’s evidence as to the children’s best interests and the risk of changing the status quo in the parenting arrangements was not only admissible but was of critical importance. [ 45 ] It is important to review the manner in which Dr. De Luca was qualified and what was expected of her evidence. [ 46 ] When asked by the Court as to the scope of her expert testimony, counsel stated as follows: . . . [COUNSEL FOR THE MOTHER]: . . . It’s a participation expert, where she is not retained by the children who are the subject of her . . . testimony. She’s been retained by the parents.

So this is not the usual situation where a party retains an expert. This is a situation where the parties have retained an expert to help them with respect to the children. . . . THE COURT: And so as a participation expert, is it your intention to have Dr. De Luca provide basically observations of what she has seen and obviously collateral opinion evidence in respect of what she believes to be sort of her, I guess, professional

interpretation of what she's seeing in -- [COUNSEL FOR THE MOTHER]: Yes. . . . [COUNSEL FOR THE FATHER]: More narrowly, My Lady, I think anything I would object to would be more characterized as recommendation style opinions. If Dr. De Luca wants to give [opinions] as to what her observations of the children have led her to conclude about the children’s psychological state, I’m not going to object to that evidence. THE COURT: Okay. I’m not hearing that -- . . . THE COURT: -- that she’s called -- . . . THE COURT: Being called for recommendations. . . . THE COURT: All right. Having heard that, . . . are you ready to proceed, then, given -- [COUNSEL FOR THE MOTHER]: Yes. . . .

[47] Later in the proceedings, counsel for the mother indicated that Dr. De Luca was aware that the Court would be decidinga parenting

schedule not based on what her opinion was as to what it should be. [48] It is therefore clear that Dr. De Luca was being called to provide observational evidence to the Court with respect to thechildren and not as an expert having performed an assessment of what the parental strengths and deficiencies were of either of the parentsvying for a parental change. [49] The reasons also indicate that the trial judge limited her use of Dr.

De Luca’s evidence to that of her observationalinformation of the psychological state of the children, although the trial judge commented on the fact that she was surprised at thelimited amount of that evidence. She did not view the recommendations of Dr. De Luca as to the maintenance of the status quo as beingan informed view, given that Dr. De Luca had not performed either an assessment or a review of the comparative homes and parentingabilities of the parties. [50] I see no error in the manner in which the trial judge considered and used Dr. De Luca’s evidence.

No Proper Best Interests Analysis or Reasons [51] The mother argues that, while the trial judge made a passing reference to the “laundry list” of best interest factorsrequired to be considered by her pursuant to section 39(2.1) of the Act, there was no clear indication in her reasons that these factorswere actually considered. In the mother’s submission, this amounts to an error as that

section requires that these matters must beconsidered. At the very least, the mother argues that the reasons fail to disclose the manner in which the trial judge performed heranalysis or considered the criteria. [52] The reasons must be reviewed according to a deferential standard. As noted in Hickey v Hickey, (SCC), [1999] 2 SCR 518 at para 12, an appellate court should not disturb the decision in a custody case in the absence of a materialerror, a serious misapprehension of the evidence or an error of law. In Van de Perre v Edwards, 2001 SCC 60, the Supreme Court states(at paras 14-15): . . .

Rather than indicating that appellate review differs when a court must consider the best interests of the child, Gordon [Gordon vGoertz, (SCC), [1996] 2 S.C.R. 27] is consistent with the narrow scope of appellate review discussed laterin Hickey, supra. The case does not suggest that appellate review is appropriate whenever a trial judge has failed to mention a relevantfactor or to discuss a relevant factor in depth. As indicated in both Gordon and Hickey, the approach to appellate review requires an indication of a material error.

If there is anindication that the trial judge did not consider relevant factors or evidence, this might indicate that he did not properly weigh all of thefactors. . . . [emphasis added] [53] While it would have been helpful if the trial judge had referred in her reasons more directly to what she considered to bethe relevant factors and reviewed them in the context of the evidence, they can be discerned from different aspects of her oral decision.

It is clear that she was concerned about the lack of access being provided to the father and the mother’s failure to collaborate inproviding greater contact, factors which she considered to be in the children’s best interests. Her decision also indicates that she didconsider things such as (

i) the ability and willingness of each parent to communicate and cooperate on issues affecting each child; (ii) thewillingness of the parents to facilitate relationships with each other; and (iii) the history of the care arrangement, all examples which themother argues were not taken into consideration. They were alluded to and certainly appear to form part of the considerations of the trialjudge.

As well, as to the issue of domestic violence or the safety of the children, those matters were before the trial judge and raised bythe mother but not viewed by the trial judge as precluding greater access by the father. [54] The trial judge’s reasons, when read in context, provide sufficient elucidation to confirm that she considered the variousfactors relevant to the best interests of these children and their relationship with their parents to reach the conclusions she did. Themother has not raised a material issue warranting appellate interference.

Did the Trial Judge Err in Her Analysis of Child Support? [55] The mother argues that the trial judge erred in her analysis of child support leading to her conclusion that it should beset at one half of the set-off amount. She also argues that: (

a) the trial judge failed to perform an analysis under

section 9 of the Guidelines, and provided no adequate reasons to support herconclusion; (

b) performed no analysis of the costs of shared parenting; and (

c) performed no analysis of retroactive support. [56] The father argues that, while not articulated as such, the trial judge did actually consider the matters needed to do anappropriate analysis under

section 9 of the Guidelines, which are: (

a) the amounts set out in the applicable tables for each of the parents; (

b) the increased costs of shared custody arrangements; and

(

c) the condition, means, needs and other circumstances of each parent and of any child for whom the support is sought. [ 57 ] There is no doubt that the incomes of the parties were considered by the trial judge, namely, $250,000 to the father and $80,000 to the mother. She did determine the set-off table amount of support at those income levels and then recognized that she could order a higher or lower amount of support. She reviewed the available information with respect to the lifestyles of the parties and their respective properties and other assets, including the mother’s vacant property.

Her conclusion, that a reduced amount in favour of the father was warranted, is not unreasonable in the circumstances and conforms to the steps outlined in the Guidelines . [ 58 ] The argument that there was no analysis of the increased costs of shared parenting is not borne out when the evidence is considered.

Both parties had, in fact, arranged their affairs to accommodate a limited shared care arrangement, and the increased sharing of custody would not materially affect their costs. [ 59 ] While not extensively articulated, there is sufficient discussion in the trial judge’s reasons to allow appellate review on that aspect of the trial judge’s decision. While the mother argues that her private school tuition expenses, a contribution under

section 7 of the Guidelines , was not considered, it is clear from the evidence that that issue was not before the Court as no request was made by the mother for such expenses to be part of the analysis. [ 60 ] As to retroactive child support, it is to be remembered that the father was voluntarily making payments of $3,500 per month throughout the period that the mother had primary care and control of the children. The issue of retroactive child support was not raised by the mother until the trial judge prompted a response in the opening statements.

At that time, the mother’s counsel indicated that the issue was solely related to the capital gains claimed on the father’s 2020 income tax return. The trial judge dealt with that and there was no further need for the matter to be reviewed by the trial judge. [ 61 ] Accordingly, that ground of appeal also fails in my view. Conclusion [ 62 ] For the above reasons, I would dismiss the appeal with costs in favour of the father. JA I agree: JA I agree: JA