Superior Court of Justice - Divisional Court
DIVISIONAL COURT FILE NO.: DC-11-302
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MATLOW, ASTON, SWINTON JJ.
BETWEEN:
Michaela Hajkova Appellant
– and –
Wayne Michael Romany Respondent
Counsel:
Amy A. Priestley, for the Appellant
Brigitte Gratl, for the Respondent
HEARD at Hamilton: October 31, 2012
Oral Reasons for Judgment
ASTON J. (orally)
1Mr. Romany appeals the joint custody order of Hambly, J. dated May 13, 2011. The Divisional Court has no jurisdiction to hear his appeal. See Christodoulou v. Christodoulou, 2010 ONCA 93 at para. 34 and s. 6(1)(b) of the Courts of Justice Act.
2We decline to transfer this appeal to the Court of Appeal under s. 110 of the Courts of Justice Act for two reasons.
3First, there is little apparent merit to the appeal having regard to the reasons of the trial judge and the standard of review that is mandated by Hickey v. Hickey, [1999] 2 S.C.R. 518 at paras. 10-12, and Van de Perre v Edwards [2001] 2 S.C.R. 1114 at paras. 11-12.
4Second, both sides have attempted to introduce fresh evidence on this appeal, focused on events occurring subsequent to the trial. Variation of the decision based upon a material change in circumstances since the trial more than a year and a half ago seems much more appropriate than an appeal of the original decision. This alternative remedy will enable the court to address the question of what is now in the best interests of the children, instead of the question of what was in their best interests at the time of the trial.
MATLOW J.
5I have endorsed the appeal book as follows: "For oral reasons delivered by Justice Aston this appeal is quashed for want of jurisdiction. We decline to transfer this appeal to the Court of Appeal."
Matlow J.
Aston J.
Swinton J.
DATE OF REASONS FOR JUDGMENT: October 31, 2012
DATE OF RELEASE: November 22, 2012
CITATION: Hajkova v. Romany, 2012 ONSC 6373
DIVISIONAL COURT FILE NO.: DC-11-302
DATE: 20121031
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MATLOW, ASTON, SWINTON JJ.
BETWEEN:
Michaela Hajkova Appellant
– and –
Wayne Michael Romany Respondent
ORAL REASONS FOR JUDGMENT
Matlow, Aston and Swinton, J.J.
DATE OF REASONS FOR JUDGMENT: October 31, 2012
DATE OF RELEASE: November 22, 2012