DATE: 20040823

DOCKET: C40000

COURT OF APPEAL FOR ONTARIO

RE: EDNA JANE VISNESKIE (Appellant) – and – RONALD BRIAN VISNESKIE (Respondent)

BEFORE: ROSENBERG, ARMSTRONG and BLAIR JJ.A.

COUNSEL: Brigitte Gratl for the appellant

Tracy Miller for the respondent

HEARD: August 13, 2004

RELEASED ORALLY: August 13, 2004

On appeal from the judgment of Justice C. Stephen Glithero of the Superior Court of Justice dated March 10, 2003 and settled April 29, 3003, and the ruling on the contempt motion and costs order by Justice Glithero dated April 8, 2003.

E N D O R S E M E N T

[1] As the trial judge observed, both of these parents love their children and both are fit parents. The trial judge referred to all of the relevant evidence and crafted an order that was reasonable and sensible in the circumstances.

[2] The trial judge dealt with all of the matters that were raised before us, such as the smoking, the children’s health, and the access schedule. There is evidence to support his findings and, accordingly, to support the order that he made. There is nothing to support the submission made in this court of a reasonable apprehension of bias because the trial judge heard an interim motion respecting custody and access and because the trial judge was himself a smoker.

[3] With respect to spousal support, we are satisfied that the trial judge could reasonably conclude that this was not a case for spousal support given the financial positions of the parties. The respondent’s bankruptcy posed a problem in this case, but we are satisfied that the trial judge could properly find that it was not a factor to be considered on the spousal support, bearing in mind that the equalization of property issues were still outstanding and that the appellant could have taken steps in the bankruptcy proceedings.

[4] We have reviewed the fresh evidence, but we are satisfied that this evidence would not have affected the result.

[5] With respect to the matter of costs, we have not been persuaded that the trial judge made any error in principle in finding that this was a proper case for costs on a substantive indemnity basis.

[6] Accordingly, the appeal is dismissed with costs fixed at $5,000 inclusive of disbursements and GST.

Signed: “M. Rosenberg J.A.”

“Robert P. Armstrong J.A.”

“R. A. Blair J.A.”