DATE: 20050929

DOCKET: C42188

COURT OF APPEAL FOR ONTARIO

RE:

BRUCE GRIFFIN (Applicant (Appellant)) – and – LINDA BOOTSMA (Respondent (Respondent in appeal))

BEFORE:

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

COUNSEL:

Karen Leef

for the appellant

Mario Mannarino

for the respondent

HEARD & RELEASED ORALLY:

September 20, 2005

On appeal from the judgment of Justice Paul F. Lalonde of the Superior Court of Justice dated June 23, 2004.

E N D O R S E M E N T

[1] While we are concerned that there may have been some errors in the proceedings before Lalonde J. those errors did not undermine his core analysis on the question of custody. Although the trial judge did not refer specifically to the appellant’s request for parallel parenting, his conclusions are an effective response to that issue. We would not disturb the trial judge’s conclusion with respect to custody.

[2] On the subject of access the trial judge significantly reduced the appellant’s access but gave no reasons for this reduction. On the contrary, the trial judge found that the child had a close and beneficial relationship with both parents. Counsel for the respondent submits that the purpose of the reduced access was to minimize conflict. However, the variation ordered by the trial judge was not structured in a manner designed to achieve that result and lacked an evidentiary basis at the trial.

[3] Both counsel concede that there are no practical difficulties with the Access Schedule contained in paragraphs 2 to 8 of the recommendations pertaining to access made by the Children’s Lawyer. Accordingly, we would set aside the provisions respecting access in the trial judgment (including paragraphs 97 and 98 of the trial judge’s reasons dated June 23, 2004 and paragraphs 1.1 and 1.2 of the trial judge’s reasons dated September 14, 2004) and substitute the provisions found in paragraphs 2 to 8 of the Children’s Lawyer’s Report subject to the further qualification that during holidays access exchanges will occur at the General Store at Hallsville.

[4] The trial judge failed to identify any basis for the restraining order that appears in the last sentence of para. 106 of his reasons. Given the access arrangement now in place, we do not consider that order necessary and we set it aside.

[5] The respondent concedes that there was no evidentiary basis for the trial judge’s finding that the appellant owes child support arrears of $3,408 for 2004. Accordingly, that order is set aside.

[6] We estimate the respondent’s reasonable disbursements in relation to the costs of the trial at $6,000. Accordingly, we would set aside the trial judge’s award of $20,000 and substitute that figure.

[7] As success on the appeal was divided, we order that there be no costs of the appeal.

“R. McMurtry C.J.O.”

“M. A. Catzman J.A.”

“Janet Simmons J.A.”