DATE: 20010308

DOCKET: C33299

COURT OF APPEAL FOR ONTARIO

RE: DEBRA LOUISE COLES (formerly Lyn Kew) (Petitioner (Respondent on Appeal)) – and – CALVIN LINCOLN LYN KEW (Respondent (Appellant))

BEFORE: CARTHY, FELDMAN AND SIMMONS JJ.A.

COUNSEL: D. Smith

For the appellant

Carrol A. Dizenbach

For the respondent

HEARD: March 6, 2001

On appeal from the judgment of Justice Bruce A. Glass dated November 12, 1999.

E N D O R S E M E N T

Released Orally: March 6, 2001

[1] The trial judge had a very difficult problem before him and after a trial lasting some nine days, he delivered extensive reasons, bringing them to a point on the custody issue at paragraph 31:

[31] I have considered whether the needs of the children could be met by leaving them in the custody of their mother, or by having them in the joint custody of both parents, or by having them in custody of their father. One might consider the tug of war between the parents so great that neither parent should have the children because the children are coming second to the wishes of each parent. I gave serious consideration to changing the custody of the children to their father because of the extent of interference conducted by Mrs. Coles. However, I find that the best interests of the children can only be met by having them in the custody of both parents. Continuity in what the children have been doing with the parents serves their purposes.

[2] As a Court of Appeal, we are in no position to disagree with the trial judge in the choice he made. We might observe in passing that this is not a typical case for joint custody, but it was not forcibly opposed below or in this court. We were advised that at trial the appellant sought joint custody as an alternative to his sole custody, and in this court, the respondent abandoned her cross-appeal from the order of joint custody. We, therefore, would not interfere with the trial judge’s decision on custody.

[3] As to the cross-appeal on equalization, the trial judge makes reference to this issue in his reasons and in subsequent reasons following each of two further attendances. We are satisfied that he gave full consideration to the issue of equalization and that there is no palpable error that would justify our interference. We therefore dismiss the appeal and dismiss the cross-appeal both without costs.

"J.J. Carthy J.A."

"K. Feldman J.A."

"J. Simmons J.A."