CITATION: Murchison v. Murchison, 2008 ONCA 295

DATE: 20080421

DOCKET: C47161

COURT OF APPEAL FOR ONTARIO

DOHERTY, ROSENBERG and EPSTEIN JJ.A.

BETWEEN:

LISSE MURCHISON

Applicant (Appellant)

and

TREVOR MURCHISON

Respondent (Respondent)

Kimberly L. Doucett for the appellant

William R. Clayton for the respondent

Heard and orally released: April 15, 2008

On appeal from the judgment of Justice T.D. Little of the Superior Court of Justice dated April 16, 2007.

ENDORSEMENT

[1] The appellant (the mother) sought an order in the Superior Court superseding a custody order that had been made in Arizona. The Arizona order had been made on consent and the parties had agreed that any variations should be taken to the Arizona court. The mother and children have resided in Ontario for several years.

[2] The motion judge was satisfied that the pre-conditions to the operation of s. 42 of the Children’s Law Reform Act were met. We agree with that evaluation.

[3] The motion judge then invoked s. 42(2) to decline to exercise his discretion under s. 42(1). In doing so, the motion judge focussed exclusively on the parties’ agreement to return to the Arizona court to seek variations in the custody order.

[4] Certainly, the prior agreement of the parties was a relevant consideration in determining whether to exercise the discretion contained in s. 42. However, the motion judge was also required to consider other factors, specifically the interests of the children and the factors identified in s. 42(1)(b). The relevant strength of those factors was, in our view, a consideration that had to be taken into account along with the prior agreement in determining whether the jurisdiction in s. 42 should be exercised.

[5] The motion judge’s failure to consider the material matters, in our view, warrants this court setting aside the order made by the motion judge. In light of the conflicting affidavits, we cannot at this point determine whether this is an appropriate case to supersede the Arizona order using the power created by s. 42. We think the only fair result is to remit the matter to the Superior Court for a determination of whether the discretion under s. 42 should be exercised in favour of superseding the Arizona order. That determination can only be made on a full record.

[6] Consequently, the appeal is allowed in accordance with the reasons set out above.

[7] With respect to costs, we are satisfied that the costs of the motion before Justice Little should be remitted to the judge who will hear the motion. With respect to the costs of the appeal, we are satisfied that the appellant was successful on the appeal in setting aside the challenged order and is entitled to costs of the appeal. We fix those costs at $4,000, inclusive of disbursements and GST.

“Doherty J.A.”

“M. Rosenberg J.A.”

“G. Epstein J.A.”