Appiah v. Appiah

Appiah v. Appiah Collection Decisions of the Court of Appeal Date 1999-02-22 Docket numbers C26431 Judges Osborne, Coulter Arthur Anthony; Goudge, Stephen Thomas; Borins, Stephen Subject Family Decision Content DATE: 19990222 DOCKET: C26431 COURT OF APPEAL FOR ONTARIO RE: GEORGE BENJAMIN APPIAH (Appellant) v. MARIE ELIZABETH SUSIE APPIAH (aka SUSIE TREMBLAY) (Respondent) BEFORE: OSBORNE, GOUDGE and BORINS JJ.A. COUNSEL: George B. Appiah, in person Barbara J. Thurston For the respondent HEARD: February 17, 1999 ENDORSEMENT [1] Mr. Appiah has appealed the judgment of the Honourable Madam Justice Ellen Macdonald in divorce proceedings that he commenced in February 1994. By her judgment, the trial judge ordered that Mrs. Appiah have custody of the four children of the marriage. She also gave Mrs. Appiah the right to move with the children to the Val d’Or area of Quebec. The trial judge dealt with Mr. Appiah’s access rights in paragraph 4(a) of the formal judgment. We do not propose to set out those access rights in this endorsement. [2] The parties were married on July 29, 1978. They separated on or about August 18, 1992. The basic trial issue, as the trial judge observed in her reasons, was the custody of the four children of the marriage. Mr. Appiah, who appeared in person, advanced five grounds of appeal. Four of them were directly related to or material to the issue of custody. We will deal with those grounds of appeal first. [3] The grounds of appeal advanced by the appellant, not in the order that he argued them, are: 1. the trial judge unduly limited and interfered with the appellant’s cross-examination of Barbara Chisholm, a psychologist who filed a report and gave viva voce evidence at trial; 2. the trial judge gave undue weight to Ms. Chisholm’s evidence; 3. the trial judge’s conclusion that the respondent should have custody of the children was unreasonable in the sense that it was not supported by the evidence; 4. the trial judge erred in permitting the respondent to move with the children to Val d’Or, Quebec; and 5. the trial judge erred in refusing to grant the appellant an adjournment to permit him to retain counsel, or time to prepare for trial himself. 1. The Cross-Examination of Barbara Chisholm [4] On July 18, 1994, Spiegel J. ordered an assessment in respect of custody and access by a duly qualified professional to be agreed upon by the parties within seven days. At the time, Mr. Appiah was represented by counsel. His counsel and Mrs. Appiah’s counsel agreed that the assessment ordered by Spiegel J. be done by Ms. Chisholm, a duly qualified psychologist. [5] As it turned out, Ms. Chisholm did not agree with the appellant’s position on the central issues of custody and whether Mrs. Appiah should be permitted to move with the children to Val d’Or, Quebec, if she were given custody of the children. Thus, Mr. Appiah, who represented himself at trial, cross-examined Ms. Chisholm extensively. His cross-examination of her extends over some 52 transcript pages at which point counsel for the oldest child of the marriage, Jane, briefly cross-examined Ms. Chisholm. Then the appellant continued his cross-examination of Ms. Chisholm for a further 9 transcript pages [6] We have reviewed the entire cross-examination of Ms. Chisholm and we think that in limiting the appellant’s cross- examination, the trial judge did no more than attempt to control and bring some reasonable order to the cross-examination and the trial. On many occasions the trial judge attempted to explain to the appellant that some matters on which he wanted to cross- examine Ms. Chisholm were properly the subject matter of submissions, not cross-examination. [7] We see no error in the limitations that the trial judge imposed on the appellant’s cross-examination of Ms. Chisholm and we would, therefore, not give effect to this ground of appeal. 2. The Weight Given to Ms. Chisholm’s Evidence [8] Ms. Chisholm’s qualification as an expert were not in real issue at the trial. She was selected by both parties as a qualified expert to do the assessment ordered by Spiegel J., as we noted earlier. Manifestly, the trial judge was entitled to consider Ms. Chisholm’s report and her extensive viva voce evidence in dealing with the issues of custody and Mrs. Appiah’s request to be permitted to move to the Val d’Or area of Quebec. The trial judge made it clear that Ms. Chisholm’s evidence was at best part of the evidence. She said, in reference to Ms. Chisholm’s recommendations, “they are a guide for the court but they do not bind the court.” [9] The trial judge did not fall into error by allowing Ms. Chisholm to determine the issues of custody, access or whether Ms. Appiah should e permitted to move to Val d’Or with the children. In our view, the record does not reveal that the trial judge gave inappropriate weight or made improper use of Ms. Chisholm's evidence. We see no merit in this ground of appeal. 3. The Custody Issue [10] There was ample evidence to support the trial judge’s finding that Ms. Appiah should have custody of the children. The trial judge was mindful throughout that all of the custody- related issues were controlled by the principle of the children’s best interests. In our opinion, the trial judge considered all of the relevant evidence and applied the correct principles in reaching the conclusion that she did on the custody issue. She was alert to Mr. Appiah’s position and views on custody and was entitled to reject them. Moreover, she was alert to the racial difference between the parties and the implications of it. That was an issue that was pursued by Mr. Appiah both at trial and on the appeal. There is no merit in this ground of appeal. 4. The Move to Val d’Or [11] Ms. Appiah testified that she sought leave of the court to return to Val d’Or with the children because the children had previously prospered while living there and because they would have the benefit of living near members of her family, in a closely knit Quebec community. [12] In our opinion, in permitting Ms. Appiah to move to Val d’Or with the children the trial judge applied the correct principles. See Gordon v. Gertz (1996), 134 D.L.R. 321 (S.C.C.). She was aware of the access-related difficulties that would necessarily follow from the children’s move to Val d’Or but nonetheless concluded, consistent with her view of the children's best interests, that the move to Val d’Or was in the children’s best interests. In our opinion, intervention on this part of the trial judge’s order is not justified. 5. The Adjournment Issue [13] This matter has a long procedural history which we do not intend to review in any detail. Indeed, in her reasons the trial judge noted that “the parties have exhausted their resources by vigorous litigation primarily over the custody of their four children.” [14] The trial was originally scheduled for the week of June 19, 1996. After the trial week was set, the appellant discharged his solicitor and at about the same time delivered a notice of intention to act in person. That notice was dated April 9, 1996. He then made a motion for an adjournment of the trial. On June 12, 1996, Epstein J. ordered that the trial be adjourned to the week of October 7, 1996 on a peremptory basis. On August 15, 1996, when he dismissed a motion for child support brought by Jane, the oldest child of the marriage, Wright J. noted that the appellant was not represented by counsel and ordered that the trial was to proceed on October 7, 1996 whether or not the appellant was represented by counsel. [15] It was against that general background which does not include all of the relevant circumstances that the trial judge considered Mr. Appiah’s request for an adjournment, made at the opening of the trial. (The appellant advised us in oral argument that he made another request for an adjournment some four days before the trial and we assume that motion was put over to be considered by the trial judge.) [16] The appellant appears to have ably represented himself at trial as he did here in the course of his oral submissions on the appeal. We are unable to conclude that he suffered any real prejudice as a result of the trial judge’s decision to reject his request for an adjournment. In the circumstances, we are not persuaded that the trial judge exercised her discretion incorrectly or that she erred in principle in refusing the appellant’s request for an adjournment. [17] We would add that in family law matters, particularly those that involve the rights of children, proceedings should be brought to a conclusion with reasonable dispatch. [18] For these reasons, the appeal is dismissed with costs, including the costs of the motions before Finlayson and Borins JJ.A.