DATE: 20051026

DOCKET: C43058

COURT OF APPEAL FOR ONTARIO

RE:

WAYNE PIKE (Applicant/Respondent in Appeal v. RACHEL COOK (Respondent/Appellant in Appeal)

BEFORE:

DOHERTY, BORINS and LAFORME JJ.A.

COUNSEL:

David Hughes

for the appellant

Rodrigue Escayola

for the respondent

Dan L. Goldberg

for the Children’s Lawyer

HEARD:

October 20, 2005

On appeal from the order of Justice Charles T. Hackland of the Superior Court of Justice (Family Division) dated January 10, 2005.

E N D O R S E M E N T

[1] The appellant, Ms. Cook, appeals from a custody order. The factual background is set out in the reasons of the trial judge and need not be repeated here.

[2] Apart from the fresh evidence application, this appeal turns on the proper application of the standard of review applicable to custody orders. That standard recognizes that the custody orders are the product of a careful and delicate balancing of competing interests and demands appellate deference: Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014 at para. 13.

[3] Counsel for the appellant has not satisfied the court that any of the material findings of fact made by the trial judge are unsupported by the evidence or reflect a misapprehension of the evidence. Specifically, our review of the record reveals ample evidence to support the finding that both parents jointly shared parenting responsibilities of their son until Ms. Cook took him out of the jurisdiction in the summer of 2003.

[4] We also reject the submission that the trial judge misapplied the controlling case law. He referred to and accurately summarized Gordon v. Goertz, [1996] 2 S.C.R. 27, the leading authority. The trial judge identified the best interests of the child as the controlling consideration and outlined the factors germane to that assessment. He considered each factor. This aspect of the appellant’s argument essentially comes down to the assertion that the trial judge should have given more weight to the factors which supported Ms. Cook’s claim and less weight to the factors which supported the claim of the respondent, Mr. Pike. Absent any error in principle or misapprehension of the relevant evidence, the assignment of weight to the various factors is for the trial judge. The deference principle enjoins this court from a de novo weighing of the relevant considerations.

[5] This was a difficult case. There were merits to both sides of the controversy. The trial judge appreciated those merits and considered them in accordance with the governing principles.

[6] The only aspect of the fresh evidence that caused the court concern was the evidence that Mr. Pike has continued to have some social relationship with an individual presently charged with drug related offences. Evidence of this relationship was before the trial judge. The fresh evidence suggests that the association has continued after the trial decision.

[7] We accept for the purposes of the appeal that some association between Mr. Pike and a person charged with drug related offences has continued since the trial. In our view, that fact alone does not warrant setting aside the trial judge’s determination as to the best interests of the child. We note that Ms. Cook has apparently not taken any steps to raise her concerns about Mr. Pike’s associates with any child care authorities and that she was fully aware of this association when she elected not to re-establish her residence in Cornwall prior to the deadline set by the trial judge, thereby placing her son in the custody of Mr. Pike. One would not have expected her to follow this course if she had any real concerns about her child’s safety while in Mr. Pike’s custody.

[8] The concerns raised by the fresh evidence filed on Ms. Cook’s behalf do not provide any basis for setting aside the order of the trial judge.

[9] We were asked to consider the propriety of the costs order made at trial. There is no application for leave to appeal the costs order before this court and no argument on the issue appears in the appellant’s factum. In those circumstances, we would not be inclined to grant leave to appeal the costs order. In any event, we see no basis upon which to interfere with that order.

[10] Mr. Pike should have the costs of the appeal on a partial indemnity basis fixed at $7,500, inclusive of GST and disbursements.

“Doherty J.A.”

“S. Borins J.A.”

“H.S. LaForme J.A.”