DATE: 20060509

DOCKET: C43754

COURT OF APPEAL FOR ONTARIO

RE:

PETER BACHLOW (Plaintiff (Appellant)) – and – JEWISH FAMILY AND CHILD SERVICES (Defendant (Respondent))

BEFORE:

MOLDAVER, CRONK and LANG JJ.A.

COUNSEL:

Peter Bachlow

In person

Kirk F. Stevens

for the respondent

HEARD:

April 27, 2006

On appeal from the judgment of Justice W.P. Somers of the Superior Court of Justice, dated May 31, 2005.

E N D O R S E M E N T

[1] In our view, this appeal must be dismissed.

[2] The appellant argues that the trial judge misapprehended the evidence concerning the date of the appellant’s execution of the agreed statement of facts (the “ASF”), in which the appellant admitted that his two sons were in need of protection at the time when they were taken into custody by the respondent. The respondent concedes that the trial judge misspoke in this respect, but says that the error is irrelevant.

[3] We agree with the respondent that the trial judge’s error in identifying the date of execution of the ASF by the appellant is not material.

[4] The appellant does not deny that he ultimately signed the ASF, at a time when he was represented by legal counsel, although he claims that he did so under duress. The ASF contains the important admission to which we have referred. The trial judge considered, and rejected, the appellant’s claim of duress.

[5] The appellant also argues that he was not present in court on May 28, 2001 when an order for interim custody of his two sons was made in favour of the respondent. He asserts that this interim order was fraudulently obtained and that he did not learn of it for several months.

[6] On consent of the parties, a copy of the May 28, 2001 endorsement by Nelson J. of the Superior Court of Justice was provided to and reviewed by this court. It is clear from the endorsement that the interim custody order was made on consent and that the appellant was represented by counsel during the court appearance when the order was made.

[7] In addition, although the appellant challenges its veracity, there was evidence before the trial judge that the appellant was also personally present in court on May 28, 2001.

[8] Moreover, contrary to the appellant’s assertion before this court that he did not learn of the interim custody order and the involvement thereunder of the respondent in the care of his children until many months after the date of the order, the record before us reveals that within days of the disputed consent order, the appellant, through his legal counsel, brought a court motion (and swore an affidavit in support of that motion) in which he acknowledged the involvement and actions of the respondent and challenged its intervention on jurisdictional grounds.

[9] In the end, regardless of whether the appellant was personally present in court at the time of the interim custody order, he was represented by counsel. There is no evidence before us to support any allegation of ineffective legal representation at that time, nor is there any evidence that the appellant’s legal counsel lacked authority to act on the appellant’s behalf or to bind him as of the date of the impugned order.

[10] Finally, although the appellant asserted in his factum filed with this court that the trial judge exhibited bias against him during the conduct of the trial, and that the trial itself was unfair for various reasons, he did not pursue these submissions during oral argument of this appeal. In any event, based on our review of the record before us, these assertions are completely unfounded.

[11] Accordingly, for the reasons given, the appeal is dismissed. The respondent is entitled to its costs of this appeal on the partial indemnity scale, fixed in the total amount of $5451.11, inclusive of disbursements and Goods and Services Tax.

“M.J. Moldaver J.A.”

“E.A. Cronk J.A.”

“S.E. Lang J.A.”