CITATION: Chakraborty v. Chakraborty, 2010 ONCA 123

DATE: 20100212

DOCKET: C49742

COURT OF APPEAL FOR ONTARIO

Feldman, Sharpe and Armstrong JJ.A.

BETWEEN

Chandan Chakraborty

Appellant

And

Bhjabani Chakraborty

Respondent in Appeal

Iain D.D. Sneddon and Lisa M. Walters, for the appellant

Svetlana MacDonald, for the respondent

Catherine Bellinger, for the Office of the Children’s Lawyer

Heard and released orally: February 2, 2010

On appeal from the order of Justice W. Tausendfreund of the Superior Court of Justice Family Court Branch dated November 4, 2008.

ENDORSEMENT

[1] The appellant father appeals a decision permitting the respondent mother to move from London to Tennessee with their only child over whom they exercised joint custody. The respondent’s position is supported by counsel for the Children’s Lawyer.

[2] The trial judge was faced with a very difficult decision. It is acknowledged that both parents are loving and capable and that the child has special needs. The trial judge gave concise careful reasons which recite and apply the proper legal test. The trial judge explained at para. 21:

The resolution of this mobility question will not be perfect. It is driven not only by a concern for the best interests of [the child] but also to effect a result which would bring the least amount of harm to him. What is important is that finality for this question should be achieved.

[3] We agree with the trial judge that there is no perfect solution and given the passage of time, the need for finality to the living arrangements for this child is now an even stronger factor. It is well established that on decisions of this kind, the trial judge is to be accorded substantial deference by the Court of Appeal. Despite the very forceful argument of Mr. Snedden, we see no error of either fact or law that would justify us, as an appellate court, to interfere with the decision.

[4] Accordingly, the appeal is dismissed. The respondent is entitled to her costs on the partial indemnity scale fixed in the amount of $6,500 inclusive of disbursements and GST.

“K. Feldman J.A.”

“Robert J. Sharpe J.A.”

“Robert P. Armstrong J.A.”