COURT FILE NO.: 307/09
DATE: 20090929
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
KATHLEEN MARIE HOLLAMBY
Applicant
(Responding Party)
- and -
HERMAN CAMPBELL
Respondent
(Moving Party)
In Person
Elizabeth Dyke for the Respondent (Moving Party)
HEARD at Toronto: September 29, 2009
Oral Reasons for Judgment
JANET WILSON J.: (Orally)
[1] The respondent father brings this application for leave to appeal from the decision of Backhouse J. dated June 2, 2009. She refused the respondent’s request to set this matter down for trial with respect to the issue of access. Counsel relies upon Rule 62.02(4)(a) and (b) of the Rules of Civil Procedure. She argues that the respondent is entitled to have a final order for access and to air matters with respect to access at a trial. She further argues that there are conflicting decisions that justify the granting of leave to appeal.
[2] This case has a lengthy and sad history as detailed in the excerpts in the file and the litany of court orders made by various judges. The mother has had custody of the children for years. Hailie, now age 16 has had no contact with her father for over four years. Mackenzie, now age 13 has had no contact since August 2006.
[3] Given the age of the children, Backhouse J. made a temporary order on January 21, 2008 that access may be exercised at the discretion of the children. In light of the protracted history, she ordered that she was the case management judge and that there should be no further motions or proceedings without her leave.
[4] On June 2, 2009, she refused the respondent’s father’s request for a trial with respect to the issue of access, which is the subject matter of this motion for leave to appeal.
[5] I agree with the decision of the learned motions court judge. It would not be in the children’s interest to have a trial.
Rule 62.02(4)(a)
[6] There are no conflicting decisions dealing with this issue that are on point. The mother is prepared to agree that the order of Backhouse J. dated January 21, 2008 will become a final order if there is any issue about whether the order is final or temporary. The mother will ensure that the children have a copy of the order. In my view it is not desirable for leave to be granted in accordance with Rule 62.02(4)(a).
Rule 62.02(4)(b)
[7] There is no reason to doubt the correctness of the decision of the learned motions court judge. To the contrary, her decision reflects the best interests of the children in this protracted litigation to be protected from further conflict and confrontation. This appeal, although obviously important to the parties, does not engage matters of such importance within the meaning of the caselaw that warrants a hearing before the full panel of the Court.
[8] For these reasons, the motion for leave to appeal is dismissed.
[9] Costs fixed, payable by the respondent to the applicant mother in the amount of $500.00, payable within 30 days.
JANET WILSON J.
Date of Reasons for Judgment: September 29, 2009
Date of Release: October 2, 2009
COURT FILE NO.: 307/09
DATE: 20090929
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
KATHLEEN MARIE HOLLAMBY
Applicant
(Responding Party)
- and -
HERMAN CAMPBELL
Respondent
(Moving Party)
ORAL REASONS FOR JUDGMENT
JANET WILSON J.
Date of Reasons for Judgment: September 29, 2009
Date of Release: October 2, 2009