DATE: 20010531

DOCKET: C34586

COURT OF APPEAL FOR ONTARIO

RE: ALIDA URSANO (Appellant) v. RICHARD ROCHON (Respondent)

BEFORE: AUSTIN, ROSENBERG and GOUDGE JJ.A.

COUNSEL: Janet MacEachen, for the appellant Brian S. Korb, for the respondent Tracy C. Houlding, for the Office of the Children’s Lawyer

HEARD: May 29, 2001

RELEASED ORALLY: May 29, 2001

On appeal from the judgment of Justice C. B. Noble dated June 16, 2000

E N D O R S E M E N T

[1] It is of utmost importance that the trial judge approach the case without bias or prejudgment. We can see why some of the comments by the trial judge would give the appellant the impression that he had prejudged the issue of custody. Some of the statements in chambers were particularly unfortunate and should not have been made. We have, accordingly, very carefully reviewed the entire record, including the fresh evidence. We do not accept that the interventions by the trial judge after the chambers discussions indicate that he had prejudged the issue. They do indicate some impatience with counsel’s persistence with the taping issue – an issue that, in our view, was of only marginal importance in this case. Most of the trial judge’s comments simply show that he was very conscious of the difficulty the witnesses were having in testifying about many of these matters. The trial judge had shown the same concern when the appellant and her witnesses testified.

[2] We are satisfied that a reasonable person viewing the matter objectively would not believe the trial judge had reached a premature conclusion. We would not give effect to this ground of appeal.

[3] As to the other ground of appeal, the finding that it was in the best interests of the child that the father should have custody is fully supported by the evidence. The factors set out in s. 24 of the Children’s Law Reform Act, especially in s. 24(2)(d) and (f), strongly pointed towards the father having custody at the time of the trial.

[4] We do not agree that the trial judge overlooked the evidence of the bonding between the child and the appellant. To the contrary, the trial judge explicitly referred to the child’s relationship with her mother as he said, “The relationship between them is close despite or perhaps because of the difficulties they have together endured.” He was also conscious of the importance of preserving that relationship even though the father would be awarded custody by giving the mother as much access as was possible given the distances involved and the appellant’s circumstances.

[5] Accordingly, the appeal is dismissed. In the circumstances, there will be no costs of the appeal.

(signed) “Austin J.A.”

(signed) “M. Rosenberg J.A.”

(signed) “S. T. Goudge J.A.”