Court of Appeal for Ontario

CITATION: Andrade v. Kennelly, 2007 ONCA 898

DATE: 20071221

DOCKET: C45695

WINKLER C.J.O., CRONK and EPSTEIN JJ.A.

BETWEEN:

CHRISTOPHER ERIC ANDRADE

Applicant/Respondent in Appeal

and

JOANNE MARIA KENNELLY

Respondent/Appellant in Appeal

Counsel:

R. Trent Morris, for the appellant

Jacqueline M. Mills, for the respondent

Heard & Released Orally: December 19, 2007

On appeal from the judgment of Justice A. Harvison Young of the Superior Court of Justice, dated June 21, 2006.

ENDORSEMENT

[1] This appeal concerns a trial judge’s disposition regarding custody and access in relation to three young girls.

[2] The appellant’s first point on this appeal is the assertion that the trial judge erred in principle by failing to address the appellant’s alternative proposal that if she returned from Ottawa to live in Toronto, she should be awarded sole custody of the children in accordance with Dr. Awad’s recommendations. We reject this submission.

[3] Having reviewed the record, including the trial judge’s endorsement of July 20, 2006, it is clear that the appellant’s focus throughout the trial and in her supplementary submissions filed after trial, involved moving the children to Ottawa. We are directed to nothing in the record indicating that the appellant ever put forward a basis for any alternative parenting plan predicated on her foregoing a move to Ottawa.

[4] The appellant’s second ground of appeal also fails. Of the various arguments advanced by the appellant, her central submission is that the trial judge erred in finding that the appellant was not prepared to facilitate access by the respondent father to the children, and that the appellant was unable to appreciate the importance of the respondent’s relationship with the children. These key factual findings, which attract great deference from this court, are well supported by the evidence at trial, in particular, the evidence of Dr. Awad. We are not persuaded that they are tainted by palpable and overriding error so as to justify appellate intervention.

[5] Nor do we see any basis to alter or interfere with the terms of the parenting regime imposed by the trial judge.

[6] Accordingly, the appeal is dismissed. The respondent is entitled to his costs of the appeal, fixed in the total amount of $8,000, inclusive of disbursements and GST.

"Winkler C.J.O."

"E. A. Cronk J.A."

"G. Epstein J.A."