Abbott v. Leblanc, 2021 ONSC 3966

CITATION: Abbott v. Leblanc, 2021 ONSC 3966

DIVISIONAL COURT FILE NO.: 673-20 DATE: 20210527

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

Parfett, Favreau and Gomery JJ.

BETWEEN:

Stephanie Leblanc

Stephanie Leblanc, acting in person

Applicant/Respondent in Appeal

– and –

Mark Anthony Abbott, acting in person

Mark Anthony Abbott

Respondent/Appellant in Appeal

HEARD at Toronto (by videoconference): May 27, 2021

Gomery J. (Orally)

[1]

Overview

The appellant Mark Anthony Abbott appeals an order issued by Fryer J. on July 15, 2019, following a seven-day trial. There are two broad aspects to the order. First, the judge granted the respondent Stephanie Leblanc sole custody of the parties’ child, L.R., born [], and permitted Ms. Leblanc to move with L.R. to live in [], Quebec, while granting parenting time to Mr. Abbott every four weeks and additional holiday access. Second, the judge dismissed Mr. Abbott’s claim for compensation for a basement renovation of Ms. Leblanc’s residence.

2Mr. Abbott contends that, in granting custody to Ms. Leblanc, the trial judge did not give due consideration to L.R.’s best interests and gave excessive weight to the problems in the parties’ relationship. He contends that the judge did not correctly apply the test on mobility applications, by failing to consider or give appropriate weight to certain critical factors and by giving inappropriate weight to irrelevant considerations. On the quantum meruit claim, Mr. Abbott contends that the judge erred in law and misapprehended and misapplied the evidence.

3Mr. Abbott has also presented a motion to adduce fresh evidence. This evidence consists almost entirely of records relating to interactions between the parties since Fryer J. issued her decision. Mr. Abbott contends that this evidence is relevant to show that Ms. Leblanc has been blocking his access to L.R.. He argues that this shows that Fryer J. erred in finding that Ms. Leblanc was prepared to allow him to have parenting time if she was permitted to move to Quebec.

4Having reviewed and considered the extensive materials filed by the parties, and having heard Mr. Abbott’s oral submissions today, we are dismissing both the appeal and the motion.

[5]

Motion to Adduce Fresh Evidence

With respect to the motion, the applicable four-part test to introduce fresh evidence on an appeal is found in Palmer v. The Queen, 1979 8 (SCC), [1980] 1 S.C.R. 759. In a custody proceeding like this, the standard to admit fresh evidence is somewhat relaxed. Even on a more relaxed standard, however, Mr. Abbott has not persuaded us that the evidence he seeks to present is relevant, or credible, or that it could be expected to affect the outcome of this appeal.

[6]

The Appeal

With respect to the appeal, Mr. Abbott has not identified any error in principle by the trial judge, any error in her application of appropriate legal principles to findings of fact, or any palpable and overriding errors in her assessment of the evidence. It is evident that Mr. Abbott was bitterly disappointed by the outcome of the trial. He would like this Court to revisit the outcome. In the absence of any identified error by the trial judge, however, this is not our role.

7Ms. Leblanc has noted, in her factum, that this Court does not have the jurisdiction to deal with Mr. Leblanc’s quantum meruit claim, because he seeks to recover an amount over $50,000. We agree. We decline, however, to transfer this claim to the Court of Appeal, which would have jurisdiction, because Mr. Abbott has not identified any error in Fryer J.’s dismissal of the quantum meruit claim.

8In her factum, Ms. Leblanc seeks a variation on Fryer J.’s order to reduce or condition Mr. Abbott’s parenting time. There are two problems with this. First, Ms. Leblanc did not serve a notice of cross-appeal, as required under r. 61.06(1) of the Rules of Civil Procedure. Second, Ms. Leblanc seeks to rely on evidence regarding events that have occurred since Fryer J.’s order was issued, including records that Mr. Abbott sought to adduce on his fresh evidence motion. Given that Ms. Leblanc has not brought her own motion to adduce fresh evidence and that we have dismissed Mr. Abbott’s fresh evidence motion, there is no evidentiary basis for the variation sought by Ms. Leblanc.

9We encourage Mr. Abbott to reconsider his approach to forming a bond with his daughter. In the less than two years since Fryer J. issued her decision, Mr. Abbott has brought this appeal and approximately eighteen motions, including numerous contempt motions, all premised on the theory that Ms. Leblanc is not respecting her obligation to provide him with parenting time. Some of these motions have been brought without notice to Ms. Leblanc. Almost all of them have been dismissed.

[10]

Costs

As the successful party on the appeal and the motion, Ms. Leblanc is entitled to costs. Given her acknowledgement that she did not lose any income as a result of time she spent preparing her materials however, we can only award her disbursements, which we round up to $600. These costs are payable forthwith by Mr. Abbott.

___________________________ Gomery J.

I agree

Parfett J.

I agree

Favreau J.

Date of Oral Reasons for Judgment: May 27, 2021

Date of Release: June 2, 2021

CITATION: Abbott v. Leblanc, 2021 ONSC 3966

DIVISIONAL COURT FILE NO.: 673-20 DATE: 20210527