DATE: 20010511

DOCKET: C35334

COURT OF APPEAL FOR ONTARIO

RE: DARWIN ROSIEN (Applicant/Respondent) v. MARY ELAINE McCULLOCH (Respondent/Appellant)

BEFORE: FINLAYSON, CARTHY and CHARRON JJ.A.

COUNSEL: Bruce F. Simpson, for the appellant

J. Christopher Arnold, for the respondent

HEARD: May 8, 2001

RELEASED ORALLY: May 8, 2001

On appeal from the order of Justice Antoine de Lotbinière Panet dated May 12, 2000.

E N D O R S E M E N T

[1] The appellant argues that the issue at trial was no better than an earlier order for custody, and support should be varied. She submits the order was final and could only be varied if a material change in circumstances affecting the child was established. The appellant concedes that if she cannot establish that the earlier order of Foran J. was final, there is no basis for the appeal.

[2] Counsel for the respondent (who was counsel before the trial judge) stated, and the record supports, that, in response to a question from the trial judge, both he and then counsel for the appellant, agreed that the order was interim. The trial judge’s reasons state:

… As a result of the interim agreement, Elaine has had interim custody of Michael since his birth. Both counsel have agreed that the order implementing the interim agreement, in which Elaine received custody of Michael, was in the nature of an interim agreement and the final decision with respect to custody is to be made by this court.

[3] It appears that the consent order of Foran J. arose out of an application by the respondent that was restricted to access only. There was no hearing and no evidence was adduced before Foran J. The agreement that was implemented by the order was worked out on the courthouse steps with duty counsel assisting the appellant. To treat the language of that consent order as final on the issue of custody and access is to elevate form over substance. There was no error on the part of Panet J. in accepting the characterization of counsel for the parties that the order was interim. The trial judge was entitled, as he did, to hear evidence for the first time on what custody and access provisions were in the child’s best interests.

[4] Accordingly, the appeal is dismissed with costs.

Signed: “G.D. Finlayson J.A.”

“J.J. Carthy J.A.”

“Louise Charron J.A.”