DATE: 20011213 DOCKET: C35758

COURT OF APPEAL FOR ONTARIO

RE:

JOHN B. WOLF (Applicant/Respondent) v. LISA WALES (Respondent/Appellant)

BEFORE:

LASKIN, GOUDGE and SIMMONS JJ.A.

COUNSEL:

Kathleen Beattie

For the appellant

Barbara Morland Wellard

For the respondent

Catherine Bellinger and Carolyn Leach

Office of the Children’s Lawyer

HEARD:

December 10, 2001

On appeal from the judgment of Justice M.G. Bolan dated January 9, 2001.

E N D O R S E M E N T

[1] We recognize that mobility cases are among the most difficult cases a court has to decide. But these cases inevitably turn on their particular facts. The trial judge, who sees and hears all the witnesses, is in the best position to decide the child’s best interests. This court cannot retry the case but must instead give deference to the trial judge’s factual and credibility findings. Only if the trial judge erred in law or made findings of fact or credibility that were unreasonable are we entitled to intervene.

[2] In this case the trial judge concluded that it was not in the child’s best interests to move to British Columbia. In so concluding, he correctly applied the principles in Gordon v. Goertz, and made findings of fact that were reasonably supported by the evidence. We make no comment on whether the evidence of the social worker was properly before the court. In our view, that evidence played no part in the trial judge’s determination to deny the move to British Columbia.

[3] Accordingly, this appeal is dismissed, but in the circumstances without costs.

[signed] "J.I. Laskin J.A." "S. Goudge J.A." "J. Simmons J.A."