NOVA SCOTIA COURT OF APPEAL
Citation: Dorey v. MacMillan, 2007 NSCA 47
Docket: CA 272185
Registry: Halifax
Between:
Stephanie Lyn MacMillan
Appellant
v.
Travis Lee Dorey
Respondent
Judge(s): MacDonald, C.J.N.S.; Bateman & Saunders, JJ.A.
Appeal Heard: April 18, 2007, in Halifax, Nova Scotia
Held: Appeal dismissed, as per reasons for judgment of Saunders, J.A.; MacDonald, C.J.N.S. & Bateman, J.A. concurring
Counsel: Maurice Smith, Q.C., for the appellant
Timothy G. Daley, for the respondent
Reasons for judgment:
[1] The appellant (Ms. MacMillan) and respondent (Mr. Dorey) lived together in a common law relationship from May 2000 until March 2006. They have a daughter, Payton Hannah MacMillan (Payton) born May 16, 2001, who is now almost six years of age.
[2] Mr. Dorey left the family home in March 2006 at a time when their daughter was staying with his mother and step-father because of a heating problem in the family home.
[3] Shortly after separation the respondent filed an ex parte application in Family Court. An interim ex parte order was issued on March 10, 2006 which provided for joint custody of the child with limited and supervised access extended to the appellant (provided access took place only in the company of Mr. Dorey or his mother or step-father). In his application Mr. Dorey claimed primary care of Payton on the basis that the appellant suffered from a bipolar disorder which made her a flight risk, or susceptible to doing harm to herself or their child, and was otherwise not able to take on child rearing responsibilities.
[4] Both parties appeared in Family Court on March 21, 2006. A consent order was issued granting them joint custody, with Mr. Dorey retaining primary care. Ms. MacMillan was granted supervised access three times a week for five hour periods. Since that time Payton has lived in her father’s care. Access for the mother has been problematic.
[5] After a four day trial in the Family Court which concluded on August 30, 2006, the Honourable Judge James C. Wilson granted the parents joint custody with the child remaining in the primary care of her father. Ms. MacMillan was granted very generous access.
[6] At no time from the date of the interim ex parte order on March 10, 2006 and Judge Wilson’s written decision filed September 1, 2006 did the appellant seek to have the interim ex parte order reviewed by the court. It is from Judge Wilson’s final order dated December 5, 2006 (confirming his September 1 decision) that Ms. MacMillan now appeals.
[7] The various grounds of appeal and submissions advanced by the appellant may be reduced to two principal arguments. Each is largely a question of fact for which - in order to succeed - the appellant must show palpable and overriding error in the trial judge’s assessment of the facts or inferences drawn from those facts. H.L. v. Canada (Attorney General), [2005] S.C.J. No. 24; Housen v. Nikolaisen. [2002] 2 S.C.R. 235; Secunda Marine Services Limited v. Liberty Mutual Insurance Company, 2006 NSCA 82; and McPhee v. Gwynne-Timothy, 2005 NSCA 80.
[8] Such a high level of deference is especially reflected in child custody cases where such determinations are so well suited to a trial judge’s discretion and the advantage of seeing the witnesses first hand. An appeal is not a second trial. Our role as an appellate court is limited. Unless we are satisfied that the trial judge erred in law, or made a palpable and overriding error in appreciating and applying the evidence, we will not intervene. Van de Perre v. Edwards, [2001] 2 S.C.R. 1014; Hickey v. Hickey, [1999] 2 S.C.R. 518; Fraser v. Moreland, 2006 NSCA 119; and Ryan v. Ryan, 2001 NSCA 182.
[9] The appellant says Judge Wilson erred:
(i) by accepting the evidence and plan presented by Mr. Dorey (quoting from her factum) “ . . . when it was clear that the Respondent had provided a false and misleading Affidavit to the Court on his ex parte application;” and
(ii) reaching a perverse conclusion concerning the appellant’s ability to care for the child, after finding that she was a poor role model, and had failed to demonstrate sufficient parenting skills or financial responsibility during their relationship.
[10] For the brief reasons that follow I would dismiss the appeal.
[11] The appellant’s first argument is premised on the assertion that Mr. Dorey “provided a false and misleading affidavit to the Court” when he applied ex parte in March 2006 for the custody and care of his daughter. In support of his application Mr. Dorey swore an affidavit which included an averment that the respondent:
. . . has been diagnosed with bipolar disorder, said diagnosis having been made when she was in approximately grade 11. I have been informed of this diagnosis by her mother, her sister and our family physician;
[12] At trial the appellant Ms. MacMillan testified that she did not have bipolar disorder. Her physician Dr. S. J. Gallant said that in his opinion the appellant did not have such a condition and further, that he had not told Mr. Dorey, that she had.
[13] In the face of this evidence the appellant now argues that Judge Wilson was wrong to rely upon the respondent’s evidence and that such reliance is especially unfair as it enabled Mr. Dorey (again quoting from her notice of appeal):
. . . to gain the upper hand by limiting the Appellant’s contact to her daughter to supervised contact only and creating a status quo which favoured the Respondent;
[14] With respect, the appellant’s complaint is overstated and misconceived. The respondent was vigorously cross-examined on this issue and steadfastly maintained that when he swore the affidavit he believed the appellant was suffering from a bipolar disorder, and that he held such a belief based upon what he had been told not only by Dr. Gallant, but also by the appellant’s own mother and sister. Judge Wilson was then in the very best position to assess the respondent’s credibility. A careful review of his decision and the entire record makes it clear that the trial judge never came close to suggesting that Mr. Dorey had perjured himself. On the contrary, Judge Wilson’s decision reflects that he was alive to the importance of this issue and its impact on the merits of the case. He identified the question and dealt with it squarely, ultimately preferring and accepting the position advanced by the respondent.
[15] The time and effort expended by Mr. Dorey, attempting to acquire and produce the appellant's own medical file from the United States which he thought would show that she did suffer from bipolar disorder, belie Ms. MacMillan's submission on appeal that Mr. Dorey deliberately set out to mislead the court by asserting a proposition which (she says) he secretly knew to be false.
[16] It is also important to recall Mr. Dorey’s mother’s testimony at trial. She (Mrs. Sloan) is an elementary school teacher who, with her husband, has been intimately involved in rearing Payton over various extended periods. She testified on both direct and cross-examination that the appellant had told her on various occasions that she suffered from bipolar disorder and depression. Mrs. Sloan was neither challenged nor shaken with respect to that testimony.
[17] At all events - and I take the trial judge’s decision to reflect this same conclusion - I regard the issue as to whether the appellant suffers from bipolar disorder, or ever told others she did - to be largely irrelevant. It was certainly open to the trial judge to conclude - as he did - that the appellant has serious mental health concerns and “suffers from chronic anxiety and episodic periods of depression” and that the “depressed mood, low energy and other symptoms that are characteristic of these disorders will at times interfere with her ability to parent.” The appellant has failed to demonstrate any error on the part of the trial judge in reaching such a conclusion. He was certainly entitled to take that conclusion into account when considering the best interests of Payton.
[18] The other main thrust to her appeal involves Ms. MacMillan’s attack on the trial judge’s statements concerning her lack of initiative, poor attitude towards money management and disinterest in improving her skills in parenting. The appellant says the judge was wrong to conclude that she had not been aggressive enough in enforcing access or pursuing her education, or finding that she had been irresponsible when it came to being aware of and managing the family’s finances.
[19] The appellant and respondent both testified at trial. So did the appellant’s father and the respondent’s mother. The trial judge had the chance to see and hear the witnesses, assess the reliability of their evidence, and then in sizing up Ms. MacMillan and Mr. Dorey, judge for himself their character, their ability and their capacity to maintain and advance the best interests of this little girl. There was ample evidence before Judge Wilson to support his disposition that Payton ought to remain in her parents’ joint custody, with primary care going to her father and liberal access extended to her mother. Should the appellant’s circumstances and personal situation improve there is of course nothing to prevent her from seeking a further review of the current order in Family Court. On the record here I would not intervene.
[20] For all of these reasons the appeal ought to be dismissed.
[21] There will be no order for costs.
[22] Saunders, J.A.
[23]
Concurred in:
MacDonald, C.J.N.S.
Bateman, J.A.