DATE: 20061214

DOCKET: C45979

COURT OF APPEAL FOR ONTARIO

RE:

PETER BRIAN BEECHING (Applicant/Appellant) – and MONICA BEECHING (Respondent/Respondent)

BEFORE:

MCMURTRY C.J.O., GILLESE and ARMSTRONG JJ.A.

COUNSEL:

Osborne G. Barnwell

for the appellant

Jean Hyndman

for the respondent

HEARD:

December 12, 2006

On appeal from the order of Justice Nancy Backhouse of the Superior Court of Justice dated August 24, 2006, in which she dismissed the appeal of the order of Justice Marion L. Cohen of the Ontario Court of Justice dated March 23, 2006.

E N D O R S E M E N T

[1] After a fourteen‑day trial, Cohen J. issued an order dated March 23, 2006, in which she gave Ms. Beeching the right to move to Argentina with the child, Nicholas, at the end of the 2006 academic year.

[2] Mr. Beeching appealed. By order dated July 11, 2006, Siegel J. ordered that the appeal be heard on August 26, 2006; he also limited the grounds of appeal to the issue of whether the trial judge erred in refusing to admit evidence tendered by the appellant regarding the security of persons in Argentina. The evidence in question was two reports from Amnesty International dated December 2002 and 2004 and documents from the U.S. State Department.

[3] On August 24, 2006, Backhouse J. heard the appeal. At the appeal, Mr. Beeching sought to introduce, as fresh evidence, documents of the same nature and kind as those that had been excluded by the trial judge.

[4] The appeal judge held that the excluded documents would not have materially impacted on the result. She found no error in the trial judge’s decision to exclude the impugned evidence at trial. At paras. 5 and 6 of her reasons, the appeal judge explained:

Documentary evidence is not ordinarily admissible at trial because it is hearsay evidence that, in the absence of a witness to present the evidence, cannot be tested by cross‑examination. The documents proffered by the father and excluded by Justice Cohen did not qualify for admission under exceptions to the ordinary rule excluding documentary evidence. There is no provision in the Children’s Law Reform Act to permit a trial judge to admit documentary or other evidence that would not ordinarily be admissible under the rules of evidence governing hearsay.

It is most likely that the evidence the father seeks to have admitted would not have materially impacted on the result. The focus in a mobility case is on the best interests of this child. At its highest, Justice Cohen had discretion to admit the documentary evidence proffered by the father. Her decision to exclude the evidence should not be interfered with. I find no error in law.

[5] By order dated August 24, 2006 (the “Order”), the appeal judge dismissed the appeal.

[6] While we do not doubt the sincerity of Mr. Beeching’s concern for his son’s welfare, we see no basis on which to interfere with the Order.

[7] This court does not have the benefit of the transcripts of the evidence at trial. Nonetheless, it is clear from the reasons of the trial judge that evidence was given in respect of conditions in Salta, Argentina. The trial judge properly focussed on the best interests of the child and gave thoughtful reasons for permitting the respondent to move, with the child, to Salta. The respondent has always been the primary and permanent stable force in the child’s life. Her plan for moving to Argentina was reasonable and appropriate; she had made arrangements in Argentina to address the child’s special needs. The trial judge found that the move to Salta would give the child more stability and security than he currently receives. Whereas the respondent has little support in Canada, she will have the support of her parents, sister and extended family in Argentina. Furthermore, based on the respondent’s background, age and “intense preoccupation with her child”, the trial judge accepted the respondent’s evidence that she would not jeopardize the child’s security.

[8] Accordingly, the appeal is dismissed with costs to the respondent fixed at $1,000, inclusive of GST and disbursements.

“R. R. McMurtry C.J.O.

“E. E. Gillese J.A.”

“R. P. Armstrong J.A.”