DATE: 20060208

DOCKET: M33243 C43930

COURT OF APPEAL FOR ONTARIO

RE:

JANETTE LAURIN (Applicant (Respondent in Appeal))

– and –

JOHN MARTIN (Respondent (Appellant in Appeal))

BEFORE:

CATZMAN, MACFARLAND AND ROULEAU JJ.A.

COUNSEL:

Leonard Levencrown

for the appellant

Peter F. Burnet

for the respondent

HEARD:

October 18, 2005

RELEASED:

October 21, 2005

On appeal from the order of Justice V. Jennifer Mackinnon of the Superior Court of Justice dated June 30, 2005.

E N D O R S E M E N T

[1] Assuming without deciding that this court has jurisdiction to re-open the hearing of this appeal, we are not persuaded that this is an appropriate case in which to do so.

[2] The principal ground advanced for re-opening the hearing of this appeal relates to the involvement of the Children’s Lawyer. The record discloses that the appellant’s cross-motion before Mackinnon J. in relation to this request was dismissed.

[3] In the eighteen grounds of appeal listed in the Notice of Appeal not one alleges any error on the part of the motions judge for failure to accede to the appellant’s request for the involvement of the Children’s Lawyer.

[4] The record discloses that the court on two prior occasions ordered and received reports from the Children’s Lawyer. The Children’s Lawyer never provided legal representation for the child in accordance with the terms of the statute.

[5] Before this court the appellant did not at any time prior to the motion to re-open request the involvement of the Children’s Lawyer. All of the remaining issues discussed in the appellant’s affidavit were argued on his behalf at the hearing of this appeal. To the extent that the appellant argues that the original order under appeal no longer remains appropriate because there have been changes in circumstance, this is more properly the subject of a new application to vary if so advised.

[6] The issue relating to the involvement of the Children’s Lawyer could have been raised at the hearing of this appeal where the appellant was represented by counsel. It was not and is not an appropriate basis to order a re-hearing in this case.

[7] The motion to re-open is dismissed. Costs to the responding party fixed in the sum of $1,500.00 inclusive of disbursements and G.S.T.

"M. A. Catzman J.A."

"J. MacFarland J.A."

"Paul Rouleau J.A."