DATE: 20031120
DOCKET: C38401
COURT OF APPEAL FOR ONTARIO
RE: RONALD HENRY COX (Applicant/Appellant) –and– HOLLY LYNNE DOWN STEPHEN (Respondent/ Respondent in Appeal)
BEFORE: ABELLA, SHARPE and ARMSTRONG JJ.A.
COUNSEL: Stephen M. Grant and Vlasta Cvetković for the appellant
Jeffery Wilson for the respondent
HEARD: November 17, 2003
RELEASED ORALLY: November 17, 2003
On appeal from final order of Justice Lynda C. Templeton of the Superior Court of Justice dated May 21, 2002 varying the judgment of Justice Patrick W. Dunn of the Ontario Court of Justice dated February 19, 2001.
E N D O R S E M E N T
[1] There is no doubt that Dr. Cox is a loving and committed parent and that he has been frustrated by Ms. Stephen’s unwarranted interference with his access rights. However, in our view, Templeton J., in thoughtful reasons, correctly concluded that in removing the child from the only home he had ever known, Dunn J. failed to consider the best interests of the child.
[2] We do not accept the appellant’s submission that Templeton J. improperly substituted her discretion for that of the trial judge. In our view, her conclusion that the trial judge made a material error in principle was warranted given the following factors:
The trial judge’s failure to advert to the impact of removing the child from his residence and his family, including his three siblings, in his detailed and lengthy reasons;
The trial judge’s overwhelming focus on the conduct of the mother rather than on the best interests of the child;
The terms of his order giving the father effective control over the mother’s access rights;
The trial judge ignoring the evidence that Ms. Stephen was otherwise an excellent parent and that the independent assessor concluded that the child should not be removed; and
The trial judge’s costs order.
[3] Both the trial judge and the appeal judge properly found that the mother’s conduct with respect to the father was entirely inappropriate. However, read as a whole, the trial judge’s reasons place excessive emphasis on the conduct of the mother and insufficient emphasis on the best interests of the child. Templeton J. fashioned a remedy, on the other hand, that took appropriate account of the risk of alienation by awarding joint custody to Dr. Cox, yet protecting the child’s sense of stability by not requiring him to leave his lifelong home and family.
[4] Accordingly, the appeal is dismissed. There will be no order as to costs.
“R.S. Abella J.A.”
“Robert J. Sharpe J.A.”
“Robert P. Armstrong J.A.”