COURT OF APPEAL FOR ONTARIO

DATE: 20060419

DOCKET: C43459

RE: MAGALIE MACEUS AGYEKUM (Applicant/Appellant) –and– BERNARD AGYEKUM (Respondent)

BEFORE: LABROSSE, DOHERTY AND ROULEAU JJ.A.

COUNSEL:

Katrina A. Prystupa for the appellant

Jack E. Pantalone for the respondent

HEARD & RELEASED ORALLY: April 11, 2006

On appeal from the judgment of Justice Metivier of the Superior Court of Justice, dated April 1, 2005 made in Ottawa, Ontario.

E N D O R S E M E N T

[1] The mother appeals the judgment of Metivier J., which granted the father joint custody of the children of the marriage and dealt with other support-related issues.

[2] With respect to custody, the trial judge dealt with all the factors that are relevant to this issue, including the evidence related to the children, the access exercised by the father, and the respective situations of the parties. In particular, she recognized that she had to deal with the issue solely on the basis of the best interests of the children. She also noted that, notwithstanding conflicts that related primarily to financial matters, the parties had been able to agree on substantial sharing of time with the children.

[3] The trial judge was concerned that the mother’s wish to have sole custody would not provide adequately for the needs of the children. She concluded that the parties would share the joint custody of the children and the mother was to be the primary residential parent and have primary care and control of them. She remained seized of the issue of custody for a period of one year. We see no basis to interfere with the trial judge’s disposition of the issue of custody.

[4] As to the other issues, they essentially relate to the alleged failure of the trial judge to impute an income to the father in excess of his actual salary and to the expenses under s. 7 of the Child Support Guidelines, O. Reg. 391/97..

[5] The trial judge went through the respective financial situations of the parties in considerable detail. In our view, the disposition of these issues by the trial judge is appropriate and does not justify interference by this court. There must be ongoing disclosure and, if the circumstances justify it, a variation can be applied for.

[6] The mother brings a motion for the admission of fresh evidence. The trial judge heard several days of evidence dealing with all aspects of the relationship between the parties and their involvement with the children. More importantly, as stated above, the trial judge remained seized of the issue of custody for one year. If the parties feel compelled to pursue the complaints raised in the fresh evidence, the trial judge would be in a far better position to deal with this information than this court. The motion is dismissed.

[7] Accordingly, the appeal is dismissed with costs fixed at $7,000 inclusive of disbursements and GST.