DATE: 20020514 DOCKET: C36949

COURT OF APPEAL FOR ONTARIO

RE:

MARLENE JOHNSON (Appellant) – and – PIERRE CLEROUX (Respondent)

BEFORE:

ROSENBERG, FELDMAN and GILLESE JJ.A.

COUNSEL:

H. Hunter Philips for the appellant

Katherine L. Shadbolt for the respondent

HEARD:

February 25, 2002

On appeal from the order of Justice Roydon J. Kealey dated August 21, 2001.

E N D O R S E M E N T

[1] [1] This court rendered a written decision on March 13, 2002, which permitted the appellant mother to move from Ottawa to Oakville with her five year old daughter. The appellant was declared the legal custodial parent of the child. The respondent father then wrote to the court asking that it amend the portion of the judgment relating to custody on the basis that custody had not been contested or argued.

[2] [2] As a result of that correspondence, we permitted the parties to make submissions on the matter of joint custody as well as costs.

[3] [3] By virtue of the consent order of Sirois J. of October 26, 1999, the appellant mother was declared to be the legal custodial parent of Sydney. That order further provided that joint custody would be reviewed a year later. The respondent father commenced this matter by way of application and filed a motion for joint custody. Although mobility was the focus of the motion before Kealey J. and argument remained focussed on mobility in the appeal before us, custody was in issue. The father sought joint custody, it had formed part of Kealey J.’s decision and it had been discussed in the expert’s report. The Notice of Appeal requested that the order of Kealey J. be set aside and, as noted, that order included an award of joint custody.

[1] [4] In our view, in the circumstances of this case, a determination of mobility entailed a decision on joint custody. Once the decision was made granting the appellant the right to move, it was impracticable to fail to deal with the issue of custody. The affidavit evidence before Kealey J. and the fresh evidence filed before this court dealt with the lack of co-operation between the parties and the difficulties between them relating to different aspects of the parenting of Sydney. The law and common sense accord on the matter of joint custody – it requires a high degree of co-operation between the parents and ought only to be awarded where the parents have demonstrated the ability to co-operate. The requisite degree of co-operation is not apparent on the record. On the contrary, the evidence suggests continuing conflict around parenting issues. As a result, we affirm our order that the appellant is Sydney’s legal custodial parent.

[2] [5] As stated in our original judgment in this matter, the appellant shall consult with the respondent on all important decisions relating to Sydney’s life. For the sake of clarity, we direct that the appellant ensure that the respondent has access to or copies of all medical, educational and religious information and records relating to Sydney.

[3] [6] As the successful party, the appellant is entitled to costs. We have considered the various factors raised by the parties in relation to costs including the argument that the matter in issue is mobility, that the appellant has done better than in her Offer to Settle and that there is limited financial information properly in evidence before the court.

[4] [7] In our view, it is appropriate to take into account the additional costs that the respondent must incur in order to enjoy continued access when deciding the matter of costs. As a consequence, costs are fixed in favour of the appellant in the sum of $20,000 plus GST plus disbursements of the motion and appeal, excluding the disbursement of $750 for the expert report of Dr. Dimock which the court did not admit or consider on the appeal.

“M. Rosenberg J.A.”

“K. Feldman J.A.”

“E.E. Gillese J.A.”