DATE: 20050513

DOCKET: C42134

COURT OF APPEAL FOR ONTARIO

RE:

Carol Anne Cotter (Applicant/Respondent in the Appeal) – and – Robert Wasmund (Respondent/Appellant in the Appeal)

BEFORE:

McMurtry C.J.O., Doherty and LaForme JJ.A.

COUNSEL:

Robert Wasmund in person

for the appellant

Paul Pellman

for the respondent

HEARD & ENDORSED:

May 13, 2005

On appeal from the judgment of The Honourable Mr. Justice Perkins of The Superior Court of Justice dated June 14, 2004 and on appeal from the judgment of The Honourable Mr. Justice Perkins of The Superior Court of Justice dated November 24, 2004 and on appeal from the judgment of The Honourable Mr. Justice Perkins of The Superior Court of Justice dated February 11, 2005 and on appeal from the judgment of The Honourable Mr. Justice Perkins of The Superior Court of Justice dated March 29, 2005.

A P P E A L B O O K E N D O R S E M E N T

[1] While several grounds of appeal were advanced, the appellant’s submissions focused almost entirely on the issue of custody. The appellant contends that at the very least he should have been awarded joint custody if not sole custody. The trial judge made the following findings of fact:

a) There was a genuine inability to communicate between the mother and father;

b) The mother was genuinely afraid of the father in that she “demonstrated a palpable fear of him while testifying”;

c) The mother has provided the great majority of physical and emotional care for the children throughout their lives;

[2] It was open to the trial judge to make these findings and we do not agree that any of them can be characterized as unreasonable. The custody order was justified based on the findings. We note that the award provides for generous access and consultation on major issues relating to the children. We acknowledge that the appellant cares deeply about his children and any efforts he makes to improve his relationships with their mother would clearly be in the best interests of the children and could lead to greater access.

[3] We see no merit to the other grounds of appeal. The appeal is therefore dismissed. The respondent is entitled to her costs in the amount of $3,000.00.