In the recent Ontario Court of Appeal decision of Duwyn v. Ross, 2024 ONCA 637, the appellant unsuccessfully sought to appeal an order made by Justice Michael Valente of the Superior Court of Justice dated May 26, 2023. The appellant also sought to introduce fresh evidence on appeal, which was ultimately dismissed by the court. The case is a helpful reminder to family law counsel that litigants cannot rely on a “parenting status quo” created
post-separation and that fresh evidence is not “new” evidence or a reiteration of the evidence led at trial.

The appellant presented three grounds for appeal:

1. The trial judge erred in ordering equal parenting time.

2. The trial judge erred in instituting parallel decision-making, despite both parties having requested sole decision-making responsibility.
3. The trial judge erred in finding that the appellant had waived her entitlement to retroactive child support.

The Court of Appeal rejected all three grounds of appeal and denied the fresh evidence motion. Both the appeal and the motion were dismissed, and the respondent was awarded costs totalling $12,500.

The first ground of appeal challenged the trial judge’s decision to order equal parenting time in a 2-2-3 shared parenting schedule. The Court of Appeal rejected this ground. After a thorough 10-day trial, the Court of Appeal determined that Justice Valente had correctly applied the relevant law and principles to the facts of the case. Justice Valente determined that the children should not have more parenting time with the appellant solely based on an existing post-separation status quo.

Although the Court of Appeal did not specifically address every factor considered by Justice Valente, the appellate court acknowledged that a variety of factors influence the determination of a parenting schedule. The primary consideration is always the best interests of the child. The status quo post separation where a child spends more time with one of their parents is merely one of many factors a judge must evaluate. Justice Valente took this factor into account, along with others, and concluded that an equal parenting arrangement was in the child’s best interest. The Court of Appeal upheld this decision, finding no legal error or reversible error in Justice Valente’s ruling (para. 10).

The second ground of appeal challenged the trial judge’s decision to order parallel decision-making  despite both parents seeking sole decision-making authority during the trial. The appellant argue that she did not have an opportunity to address the option of parallel decision-making. However, the issue was raised and discussed by the respondent through written submissions, reply submissions and oral arguments at the trial. The appellant did not address parallel decision-making in either her written or oral submissions.

The appellant could not then claim that she was deprived of the opportunity to address the issue during the trial. She had the chance to raise the matter in her written submissions and chose not to do so. Similarly, she could have addressed the parallel parenting model (where parents have final responsibility over certain spheres of decision-making such as relating to health or education) in her oral submissions but did not. The Court of Appeal is not a forum for re-litigating issues that were not presented at trial. Moreover, parallel decision-making essentially grants each parent sole authority over specific issues, aligning with what both parties sought during the trial.

The final ground of appeal raised claimed that the trial judge erred in determining that the appellant had waived her right to retroactive child support. The Court of Appeal found that the trial judge’s finding was permissible given that the judge had heard the parties’ evidence and assessed their credibility.

The appellant’s motion to introduce fresh evidence was denied. The Court of Appeal determined that the proposed evidence was merely a continuation of what had already been presented at trial. This fresh evidence pertained to conflicts between the parties, but as established in Cuthbert v. Nolis, 2024 ONCA 21 at paragraph 20, “leave should be denied where the proposed evidence is essentially an extension of the evidence adduced at trial. The proposed evidence would not assist in determining any issue on appeal.”

The appellant also attempted to rely on the decision of Children’s Aid Society of Owen Sound v. R.D., [2003] O.J. No. 3999 (Ontario Court of Appeal). However, the Court of Appeal found this case inapplicable, as it addressed the admissibility of evidence under s. 69(6) of the Child and Family Services Act, which pertains specifically to child protection proceedings. Justice Valente’s order was not made in that context.

This case underscores the rigorous standards applied when introducing fresh evidence. Despite the appellant’s assertions, the Court of Appeal found that the evidence sought to be introduced was not “fresh” but rather a reiteration of trial evidence.

All in all, this case offers a concise and engaging read, shedding light on the criteria for the admissibility of “fresh evidence” and setting out the principles and factors to be considered when determining the merits of a parenting dispute.

Michael J. Stangarone, partner, and Aria MacEachern, associate, are with MacDonald & Partners LLP, where they practice exclusively family law.

The opinions expressed are those of the authors) and do not necessarily reflect the views of the author's firm, its clients, LexisNexis Canada, Law360 Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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