COURT OF APPEAL FOR ONTARIO

CITATION: Brown v. Brown, 2007 ONCA 125

DATE: 20070226

DOCKET: C44706

RE: DALE DARRELL BROWN (Applicant (Respondent)) and DEBORAH BROWN AND DWAINE BROWN (Applicants (Respondents)) and TRACY DARLENE BROWN (Respondent (Appellant))

BEFORE: SIMMONS and MACFARLAND JJ.A. and PARDU J. (ad hoc)

COUNSEL: Bradley A. Smith for the appellant Tracy Brown

D. Smith for the respondents Deborah and Dwaine Brown

HEARD & RELEASED ORALLY: February 20, 2007

On appeal from the judgment of Justice Helen M. Pierce of the Superior Court of Justice dated December 1, 2005.

E N D O R S E M E N T

[1] The appellant raises two main issues on appeal.

[2] First, she claims that the trial judge erred in failing to restrict herself to the issue of whether the appellant was entitled to move. We reject this submission. The original application of the respondent father was an application for custody or, in the alternative, primary care and control of the child. Similarly, the application of the respondent grandparents as third parties was an application for custody. For reasons that we will explain, in our view, there were facts and circumstances in addition to the appellant’s proposed move that justified the trial judge dealing with the question of custody.

[3] Second, the appellant claims that, in the light of the pre-existing consent order for joint custody under provincial legislation, the trial judge erred in dealing with the custody claims in the divorce application as a proceeding de novo rather than as a variation application. The appellant also asserts that the respondents failed to establish a material change in circumstances justifying a change in custody.

[4] We agree that it would have been preferable had the trial judge explicitly addressed the issue of whether this matter should be dealt with as a proceeding de novo or as a variation application. However, in our view, even if it was necessary that the trial judge treat this matter as a variation application, it is implicit in her reasons that she found that the threshold of material change in circumstances was satisfied. For example, the trial judge found that even though the appellant acknowledged that joint custody requires joint decision making by the parents the appellant’s evidence demonstrated that she had not engaged in that exercise in relation to the two issues of great significance in the trial. Those issues were tutoring for the child and the appellant’s proposed move to Madsen. Moreover, the trial judge made an express finding that the appellant was behaving as if she were the sole custodial parent.

[5] Further, subsequent to the order made under provincial legislation, the mother formed a troubled relationship with a man who had a serious problem with alcohol. The trial judge also found that until this proceeding was commenced, the child was spending an increasing amount of time each year with the respondent grandparents to the point that the trial judge questioned whether the appellant continued to be the primary caregiver. Fourth, following commencement of this proceeding the appellant curtailed the grandparents’ time with the child, giving rise to the trial judge’s conclusions that the appellant does not recognize the importance of the child’s relationship with his grandparents and was engaging in a pattern of conduct of putting her own interests first.

[6] In our view, the trial judge carefully and thoroughly considered the best interests of the child. We see no basis for interfering with her conclusions or with her order awarding custody of the child to the respondent grandparents.

[7] The appeal is therefore dismissed.

[8] Costs of the appeal are to the respondents fixed at $7,500.00 inclusive of disbursements and applicable G.S.T.

“Janet Simmons J.A.”

“J. MacFarland J.A.”

“G. Pardu J. (ad hoc)”