DATE: 20010717
DOCKET: M27555/C36590

COURT OF APPEAL FOR ONTARIO

RE: JENNIFER SINCLAIR (Applicant/Respondent) v. TODD BARGMAN (Respondent/Appellant)

BEFORE: OSBORNE A.C.J.O.

COUNSEL:
Carol A. Bargman for the appellant
A. Little for the respondent

HEARD: July 13, 2001

E N D O R S E M E N T

[1] The moving party, Todd Bargman (Bargman) is the father of Sierra Bargman-Sinclair (Sierra) who was born on October 6, 1995. The respondent, Jennifer Sinclair (Sinclair) is Sierra’s mother. On March 24, 1997, Nevins J. ordered that Sinclair have custody of Sierra. He granted access to Bargman at times that need not be detailed. On June 18, 2001, on Bargman’s motion for custody Marshman J. dismissed Bargman’s motion. Thus, the custody order of Nevins J. remained intact. Under that order, Sinclair had custody of Sierra.

[2] After the custody trial before Marshman J., concerns arose with respect to child abuse. In due course, Sinclair was charged with assault and released on a promise to appear. She was prohibited from having contact with Sierra as a condition of her release. Because of these developments, Sierra’s paternal grandparents have assumed day-to-day custody and control of Sierra.

[3] Bargman has appealed Marshman J.’s June 18, 2001 order dismissing his claim for custody. He asks that the judgment be set aside and that a new trial be ordered or that he simply be granted custody of Sierra. He also seeks to adduce fresh evidence, the details of which I have not reviewed. It will be sufficient to say that at least for the most part the fresh evidence concerns the particulars of the police investigation leading to the charges against Sinclair.

[4] In Marshman J.’s reasons for judgment, she made it clear that, in her view, Bargman was not a fit parent. In reference to Bargman she said “He is not an appropriate caregiver for a young child”. Against that background, I am not persuaded that it would make any sense to remove Sierra from her grandparents’ custody and place her with Bargman who the trial judge manifestly felt was not a fit parent. In my view, Bargman’s motion for interim custody pending hearing of the appeal must be dismissed.

[5] Bargman has access during the last half of August 2001, but no access before then. He has complained about that access being at the end of August. I hope the parties can work something out with respect to summer access, however, if they cannot, it seems to me that the trial access order should simply be observed. In the short term, I would hope that arrangements can be worked out so that Sierra’s paternal grandparents will have some access to her.

[6] There are some miscellaneous problems such as obtaining proper dental care for Sierra. She apparently has a number of cavities which as a matter of common sense should be dealt with in short order. As the grandparents have care, custody and control of Sierra, they should determine what dentist should treat her. I emphasize that this should be done quickly.

[7] It is important that this appeal be heard quickly. I am told that there is some problem with the preparation of transcripts in the sense that transcripts of this trial will not be ready for three months. The preparation of the trial transcripts should be expedited. A copy of these reasons should be given to the court reporter or court reporters involved. To properly organize the appeal, the police evidence which was brought to court on the hearing of this motion by Constable Adlee should be copied and given to the court in the usual fresh evidence envelopes so that the panel hearing the appeal can consider any application for the admission of fresh evidence.

[8] In my view, the Children’s Lawyer should be involved to represent Sierra’s interests. Since the parental situation is so volatile and fluid at the moment, I think an order should issue in the usual form requesting the Children’s Lawyer to provide services as the Children’s Lawyer deems appropriate in the circumstances. Both Sinclair, Bargman and Sierra’s grandparents should co-operate fully with the Children’s Lawyer.

[9] Costs of today’s proceedings, if any, should be at the discretion of the panel hearing the appeal.

“C.A. Osborne A.C.J.O.”