Court File and Parties

COURT FILE NO.: 29/06 DATE: 20061024

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

LANE, CHAPNIK AND SMITH, JJ.

B E T W E E N:

FLORA DI NUNZIO Applicant (Respondent in Appeal)

• and -

MANRICO DI NUNZIO Respondent (Appellant)

Counsel: In Person Valentina Iadipaolo, for the Appellant

HEARD at Toronto: October 25, 2006

Oral Reasons for Judgment

LANE J.: (Orally)

1On this appeal both parties have tendered fresh evidence not available at the time of the hearing in December, 2005. This includes a subsequent report card for Alexandro, a certain project by Stephanie, a further affidavit by Mrs. Di Nunzio and tax assessments for Mr. Di Nunzio.

2In our view, the usual rules for admission of fresh evidence on appeal are to be relaxed in cases involving the best interests of children. See Children’s Aid Society of Peel v. W.(M.J.), 23 O.R. (3d) 174 (C.A.). This evidence could have affected the decision below and certainly establishes that the situation has changed in the past year. A new hearing seems to us to be necessary. Even with the new evidence we do not have the information before us to do, for example a section 9 calculation, if that is a desirable step to take. Nor do we have the material before us or feel it appropriate for us to undertake what is in effect a new hearing on new evidence.

3Accordingly, we propose to allow the appeal to the extent only of directing a new hearing on the issues raised on the motion on such evidence as the parties may choose to proffer. To make the new hearing meaningful, we direct that both parties shall make current financial disclosure prior to the return of the new motion.

4We also find, as is now agreed by Mrs. Di Nunzio that the retroactive support order has been satisfied and the appeal is also allowed in respect of that issue.

5There will be no costs of this appeal.

6We are very concerned about the effect of all this litigation upon these children whose welfare is the heart of the matter.

We urge the adult parties to adopt a more flexible attitude towards each other in the best interests of their children.

LANE J.

CHAPNIK J.

SMITH J.

Date of Reasons for Judgment: October 25, 2006 Date of Release: October 27, 2006

COURT FILE NO.: 29/06 DATE: 20061025

ONTARIO SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

LANE, CHAPNIK AND SMITH, JJ.

B E T W E E N:

FLORA DI NUNZIO Applicant (Respondent in Appeal)

• and -

MANRICO DI NUNZIO Respondent (Appellant)

ORAL REASONS FOR JUDGMENT LANE J.

Date of Reasons for Judgment: October 25, 2006