Court of Appeal for Ontario

CITATION: Slaunwhite v. McLaughlin, 2010 ONCA 219

DATE: 20100322

DOCKET: C50656

BEFORE: Goudge, MacPherson and MacFarland JJ.A.

BETWEEN:

Michael Slaunwhite

Applicant (Appellant)

and

Kelly Ann McLaughlin

Respondent (Respondent)

COUNSEL:

Aaron Franks and Michael Zalev, for the appellant

Richard P. Bowles, for the respondent

Heard and released orally: March 9, 2010

On appeal from the order of Justice Stanley J. Kershman of the Superior Court of Justice dated May 14, 2009.

ENDORSEMENT

[1] Michael Slaunwhite appeals from the order of Justice Kershman dated December 8, 2008, with reasons dated May 14, 2009. The order dismissed the appellant’s claim for a variation to the consent custody order in place. The appellant now seeks joint custody with his former partner Kelly Ann McLaughlin of their five-year-old daughter Makayla, and an equal parenting schedule for Makayla.

[2] The appellant argues that the application judge erred in not applying to the custody issue the standard of material change set out in the separation agreement. However, on the application, the only standard put to the application judge was that found in the statute. We are in no position to know why that was, nor how the evidence might have been different had the appellant put forward the standard now contended for. Nor do we have any assistance from the trial judge on the question. In the circumstances, we would not give effect to this argument.

[3] As to his disposition of the custody issue, the judge below considered the evidence before him, and carefully assessed the three changes put to him as material. We can see no basis for interfering with the conclusion he came to about them, namely that none constitute a material change.

[4] The appellant also argues that the trial judge erred in curtailing the appellant’s ability to lead evidence about the historical relationship between the parties and their daughter. In our view, in the instances cited, the judge below was merely trying to focus the evidence of material change that was being advanced. It is far from clear to us that he unduly curtailed what the appellant refers to as evidence of the baseline from which material change was to be assessed. This ground of appeal must also fail.

[5] Finally, the appellant contends that the application judge erred in not imposing an equal parenting schedule, specifically the so-called two, two, five, five schedule he proposed. We disagree. For many years and on a consent basis the parties agreed on a schedule that provided the father with approximately 12 hours of weekday contact with his daughter every two weeks, plus every other weekend and virtually equal holiday time. On the application to vary, the judge increased the father’s weekday contact to 37 hours every two weeks, and maintained the other components of the father-daughter contact. In making this substantial change, the application judge considered the relevant factors including, importantly, the desirability of enhancing contact between Makayla and her father and his new family. We can see no error in his analysis or his conclusion on this issue.

[6] The appeal is therefore dismissed. Costs to the respondent fixed at $12,000, inclusive of disbursements and GST.

“S.T. Goudge J.A.”

“J.C. MacPherson J.A.”

“J. MacFarland J.A.”