Court of Appeal for Ontario

Citation: Wedig v. Gaukel, 2007 ONCA 521

Date: 2007-07-09

Docket: C46540

Between:

Mathew James Wedig Applicant (Respondent in Appeal)

and

Paula Suzanne Gaukel Respondent (Appellant)

Before: Simmons and MacFarland JJ.A. and Epstein J. (ad hoc)

Counsel:

Jeffery Wilson and Tammy Law for the appellant

Joan M. Irwin for the respondent

Heard: June 26, 2007

On appeal from the Judgment of Justice D. J. Gordon of the Superior Court of Justice dated January 5, 2007.

ENDORSEMENT

[1] The appellant raises three issues on her appeal from an order finding that she wrongfully removed her child from Florida and directing that she return the child to Florida. In addition, the appellant seeks to introduce fresh evidence on appeal.

Grounds of Appeal

[2] First, the appellant submits that the application judge erred in admitting the evidence of Michael C. Berry on the issue of proof of Florida law by failing to ensure that Mr. Berry was a properly qualified expert. Apart from indicating that Mr. Berry is a licensed attorney in Florida, the affidavit of Mr. Berry filed before the application judge includes no particulars of Mr. Berry’s experience or qualifications. The appellant contends that, in these circumstances, Mr. Berry’s affidavit did not demonstrate that Mr. Berry had the necessary expertise to provide an opinion about the state of Florida family law and that the application judge erred by failing to exclude his evidence.

[3] We disagree. The appellant did not file any expert evidence concerning Florida law on the application nor did she in any way challenge either Mr. Berry’s qualifications or his evidence. While it no doubt would have been preferable for Mr. Berry to have appended a copy of his curriculum vitae to his affidavit and to have provided particulars of the nature of his practice, in the absence of any challenge to his expertise or his evidence, the fact of his status as an attorney licensed to practise in Florida was sufficient to justify the admission of his evidence.

[4] Second, the appellant submits that the application judge erred by failing to apply the proper standard of proof for proving foreign law. In essence, the appellant contends that the application judge erred by relying on bald statements by Mr. Berry concerning the state of family law in Florida.

[5] We do not accept this submission. As already noted, before the application judge the appellant did not contest either Mr. Berry’s qualifications or his evidence. In these circumstances, it was open to the application judge to accept Mr. Berry’s evidence even in the absence of further elaboration.

[6] Third, the appellant submits that, in determining that the child was wrongfully removed from Florida, the application judge erred by considering events that occurred subsequent to the date of removal. In particular, the appellant points out that as of the date of removal, the respondent had not acknowledged that he was the father of the child but rather was seeking paternity testing. Relying on a plain reading of s. 744.301 of the Domestic Relations Act, Fla. Stat. tit. XLIII, the appellant contends that the application judge could only have reached the conclusion that the respondent was a parent with custody rights by relying on the paternity tests that occurred after the date of removal.

[7] We do not accept this submission. The appellant did not raise any issue before the application judge that the respondent’s custody rights might be different depending on whether he was a “wondering” father as compared to a father so declared or so found.

[8] The evidence before the application judge confirmed that, as of the date of removal, the appellant asserted that the respondent was the father of the child and further, that although the respondent was seeking confirmation of that fact, he had had ongoing involvement with the child. The expert evidence was to the effect that, in the state of Florida, an unmarried father of a child is entitled to equal custody rights, including the right to determine the child’s place of residence. As we read his reasons, it was this evidence that led the application judge to conclude that the respondent was a parent with custody rights as of the date of removal. In particular, we note that the excerpts from certain authorities quoted by the application judge in the analysis section of his reasons make it clear that the application judge was alive to the requirement to determine the issues of whether the removal was in breach of custody rights that existed and were being exercised as of the date of the removal.

[9] In our view, although the application judge referred to the paternity testing that occurred after the date of removal in the facts section of his reasons, he did so for the purpose of completing the narrative and not for the purpose of determining the respondent’s status as a parent with custody rights as of the date of removal.

The Fresh Evidence Application

[10] On appeal, the appellant applies to file expert evidence in response to Mr. Berry’s affidavit. The appellant submits that even when considered in the light of the further evidence the respondent seeks to file, at a minimum, the fresh evidence raises a triable issue concerning whether wondering fathers have custody rights under Florida law. Depending on this court’s view of the totality of the new evidence, the appellant asks that the fresh evidence be admitted and that this court either make a finding that the respondent had no custody rights as of the date of removal or order a new hearing.

[11] We decline to admit the fresh evidence. We acknowledge that there are various conflicts in the expert evidence that has now been filed. However, a core assertion in the respondent’s evidence is that even if the appellant had presumptive rights to primary custody as of the date of removal because of the respondent’s status as a wondering father, the appellant’s entitlement did not leave the respondent without any custody rights under Florida law as of the date of removal. On our review of the fresh evidence filed by both parties, the appellant’s evidence does not undermine this assertion. In the circumstances, we are not persuaded that the fresh evidence might reasonably have affected the application judge’s decision. It should not therefore be admitted.

[12] Although not determinative, we also conclude that the appellant has failed to meet the due diligence criterion for the admission of fresh evidence. Simply put, the appellant has not provided a reasonable explanation for the failure to file expert evidence on the application or to in any way contest the respondent’s expert evidence.

[13] The appeal is therefore dismissed with costs to the respondent on a partial indemnity scale fixed in the amount of $7500.00 inclusive of disbursements and applicable G.S.T.

“Janet Simmons J.A.”

“J. MacFarland J.A.”

“Epstein J. (ad hoc)”