Court File and Parties

Citation: Ashley Callaghan v. Ervin Jackson, 2017 ONSC 593 Divisional Court File No.: DC-16-908 Date: 20170124

Superior Court of Justice – Ontario Divisional Court

Re: Ashley Callaghan, Appellant And: Ervin Jackson, Respondent

Before: Kiteley, Kruzick, Myers, JJ.

Counsel: D. Winnitoy, for the Appellant R. Niman, for the Respondent

Heard at Oshawa: January 24, 2017

Endorsement

Myers J (Orally):

[1] This is a difficult case for all concerned. There is no perfect outcome. A very experienced trial judge heard the parties for ten days and gave thorough and comprehensive reasons for decision.

[2] The appellant argues that the trial judge made an error of law by failing to give primacy to the principle that siblings should not be separated except in extreme and compelling circumstances.

[3] We do not agree that there was any error committed by the trial judge. She recognized that the issues before her turned on a determination of what was in the best interest of the child. She set out sections 24(1) and (2) of the Children’s Law Reform Act and noted appropriately that the factors listed in s.24(2) are not a checklist but are a “valuable reflection of the gathered insight of courts, legislators and multidisciplinary insight into factors that impact on a child’s well-being.” As counsel for the appellant showed us, the trial judge was very alert to the issue of moving the child away from the primary residence with his siblings.

[4] At paragraph 49 of her reasons, the trial judge referred expressly to the cases that hold that siblings should be raised together absent compelling circumstances. She then balanced all of the relevant factors and found that it was in the best interest of the child to be in the primary care of the respondent, subject to a tight access regimen that she specifically designed in the exercise of her discretion to protect and promote the child’s best interest.

[5] The assessor, Mr. Musselman, did not refer to the impact of separating the siblings in his report, but in cross-examination he was clearly alive to the potential consequences.

[6] We do not see any error of law or principle in the trial judge’s reasoning or in the exercise of her discretion. Accordingly the appeal is dismissed.

Myers J.

I agree Kiteley J.

I agree Kruzick J.

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