DATE: 20040913

DOCKET: C40679

COURT OF APPEAL FOR ONTARIO

RE: K. C. D. (Applicant/Appellant)

-and- S. A. F. (Respondent/ Respondent)

BEFORE: MOLDAVER, BORINS and LANG JJ.A.

COUNSEL: Muhammad A. Hassan for the appellant Scott M. Merrifield for the respondent

HEARD: September 8, 2004

RELEASED ORALLY: September 8, 2004

On appeal from the judgment of Justice Mary E. Marshman of the Superior Court of Justice dated July 16, 2003, setting aside the judgment of Justice Eleanor M. Schnall of the Ontario Court of Justice dated December 13, 2002, and from the order for costs made by Marshman J. dated September 19, 2003.

E N D O R S E M E N T

[1] The trial judge removed the child, P., from the mother’s primary care and granted custody to the father. The mother successfully appealed that decision and obtained an order for a new trial. The father appeals that order, seeking reinstatement of the trial decision.

[2] Marshman J. reviewed the applicable standards of appellate review and gave careful reasons for her decision to grant a new trial. She considered the perception of trial fairness in circumstances where the trial judge recalled the mother to the stand on her own motion and questioned her about her allegations of sexual abuse. Further, the trial judge failed to give her decision within ten months of the trial’s conclusion in February 2002.

[3] Eventually, in December 2002, after giving an “interim ruling”, the trial judge, on her own motion, reopened the trial to request further evidence because “I would be doing a disservice to the child if I were to attempt to render a decision without further updated information.” Even after the conclusion of her continuation of the trial, the trial judge did not release her reasons until January 2003, with a further addendum, released on April 11, 2003, containing her analysis of the investigation and report initiated by the Children’s Lawyer.

[4] In addition, in her reasons the trial judge failed to analyze the particulars of Jennifer Lacey’s additional evidence about the father’s interaction with P. and the reasons for the change in her earlier evidence.

[5] In these circumstances, we see no error in Marshman J.’s conclusion that neither party had been afforded a fair trial. On these grounds alone, we see no reason to disturb her determination that there should be a new trial.

[6] As regrettable as this further delay unquestionably is, it is the necessary result. It is our hope, in these circumstances, that a new trial will be held as soon as possible before a trial judge who is available to complete the trial on consecutive days.

[7] With respect to costs, we see no reason to grant leave to appeal from the costs award made by the appellate judge.

[8] Accordingly, the appeal is dismissed. The costs of the appeal before us are fixed in the amount of $4,000, inclusive of disbursements and G.S.T.

Signed: “M.J. Moldaver J.A.”

“S. Borins J.A.”

“Susan Lang J.A.”