DATE: 20050923

DOCKET: C43320

COURT OF APPEAL FOR ONTARIO

RE:

NATALIE RITA KRISKO (Applicant/Respondent in Appeal) v. KIM RUDOLPH KRISKO (Respondent/Appellant in Appeal)

BEFORE:

McMURTRY C.J.O., SIMMONS AND MacFARLAND JJ.A.

COUNSEL:

Brian Smith

for the appellant

Deborah Ditchfield

for the respondent

HEARD & ENDORSED:

SEPTEMBER 23, 2005

On appeal from the order of Justice Ken dated November 17, 2004.

A P P E A L B O O K E N D O R S E M E N T

[1] It is agreed that the procedure in this matter at trial was most unusual and in our view unfortunate. However, the issue left open by the minutes of settlement was whether the father would have access to the children between 4:00 and 6:00 p.m. on “exceptional days” when the children were not in school. That is the issue that the trial judge determined and it was within his discretion not to re-open that issue. In our view, he committed no error in principle.

[2] The appeal is therefore dismissed. The respondent is entitled to her costs fixed in the amount of $10,000 inclusive of GST and disbursements.