DATE: 2003-09-04 DOCKET: C39317

COURT OF APPEAL FOR ONTARIO

ROSENBERG, GOUDGE AND SHARPE JJ.A.

B E T W E E N:

SHERI LYNN BELL

Defendant / Appellant

— AND —

MARC PHILLIPPE AUSTIN CORMIER

Plaintiff / Respondent

Counsel: Lorne H. Wolfson and Antonette M. Barreto, for the appellant Phaedra Klodner, for the respondent

Heard: August 15, 2003

On appeal from the judgment of Justice Patrick J. Flynn of the Superior Court of Justice, dated December 5, 2002, at Cormier v. Bell (2002), 125 A.C.W.S. (3d) 301, 2002 45677, [2002] O.J. No. 5494, 2002 CarswellOnt 4799; additional reasons at Cormier v. Bell (2003), 120 A.C.W.S. (3d) 733, 2003 11641, [2003] O.J. No. 737, 2003 CarswellOnt 742.

BY THE COURT:

[1] In this case, the parties asked the trial judge to determine whether the primary residence of the child should be with the mother in Stratford or with the father in Brantford. In addressing this question, the trial judge had the difficult task of determining what was in the child’s best interests. His decision was bound to be painful to one party or the other.

[2] The trial judge determined that it was in the best interests of the child that his primary residence be with the father. We are asked to review and reverse that decision. We are empowered to do so, but only if the trial judge erred in principle or materially misapprehended the evidence. In our view, he did neither.

[3] The trial judge rested his conclusion most significantly on his findings that the only really stable place the child has had in his life is the Cormier family home in Brantford, that the father’s family is much more supportive of the child’s relationship with his mother than vice versa, and that as secondary but important caregivers for the child, the father’s mother has a much longer, stronger and more stable relationship with the child than does the mother’s fiancé. There was ample evidence to support these findings and they are all clearly important in assessing the child’s best interests. We cannot say that the trial judge erred in giving them the weight that he did.

[4] It is true that the trial judge did not expressly address the adverse impact on the child of the reduced time with the mother that will result from his order, given the pre-trial arrangement that split the child’s residence equally between the parents. However, he was asked to choose between the two proposals for primary residence. Both parties took the position that the split residence status quo was not in the child’s best interests and should end. Indeed, the child himself expressed concern to many of his caregivers about having no home. The trial judge concluded that the split residence arrangement could not continue — a reasonable finding in light of the evidence and given that the child is on the verge of full time school. Either choice of primary residence would have inevitably reduced the time with one parent. In these circumstances it is not reversible error for the trial judge not to refer to the reduced time with the mother in finding that the best interests of the child are served not by continuing the status quo, but by ordering primary residence to be with the father.

[5] Nor is it reversible error that the trial judge does not refer in his reasons to the incidents of the father acting in anger. These incidents were not recent and arose largely in the context of the crisis of the marriage break up. That evidence was before the trial judge and, given its historical nature, it was open to him to decline to give it significant weight.

[6] Finally, the appellant argues that the trial judge addressed the past, but not the future in determining what would be in the child’s best interests. We disagree. Both parties presented their parenting plans for the future. The choice of primary residence made by the trial judge is in essence an endorsement of the father’s parenting plan as being in the child’s best interests.

[7] It is true that that plan relied on the strong links that the child has developed since his birth with the Cormier family home, the father’s mother and the father’s family generally. However, it is just those links and the benefits they bring that, in the trial judge’s view made it in the child’s best interests that his primary residence should be with the father in Brantford. We cannot find that he erred in coming to this conclusion.

[8] The appeal must be dismissed.

[9] The parties will have two weeks from the date of release of these reasons to provide brief written submissions as to costs of the appeal.

Released: September 4, 2003 “MR”

“Marc Rosenberg J.A.”

“Stephen T. Goudge J.A.”

“Robert J. Sharpe J.A.”