Court of Appeal for Ontario

Citation: Davis v. Davis, 2008 ONCA 40

Date: 2008-01-22

Docket: C48000

Between:

Fraser Davis, Appellant

and

Joanne Davis, Respondent

Before: Doherty, Borins and MacFarland JJ.A.

Counsel:

Fraser Davis appearing in person

Leonard Max, Q.C. for the respondent

Heard and orally released: January 11, 2008

On appeal from the judgment of Justice Albert Roy of the Superior Court of Justice dated June 30, 2004.

Endorsement

[1] Access to the two children of the marriage was the primary concern of the appellant on this appeal.

[2] Roy J. originally granted access to the appellant on terms specified in his judgment dated June 30, 2004. The judgment was rendered after a trial on several issues, including the question of access.

[3] Subsequently, on about July 7, 2004, counsel for the respondent sought a further hearing before Roy J. to raise an issue arising out of the alleged conduct of the appellant on his first visit with his children following the trial judgment. Counsel for the respondent alleged in a letter written to the trial judge that the appellant had acted in a most inappropriate way towards his children during that visit. He told the children that if his access was to be restricted, he did not want to see them at all.

[4] The hearing requested by counsel for the respondent was eventually scheduled for August 11, 2004. The appellant was aware of the nature of the allegations being made by counsel for the respondent and he was aware that a tentative appointment with the trial judge to address those allegations had been made for August 11th. The appellant apparently faxed his version of events to the trial judge. The appellant attended at the courthouse on August 11th, filed a written request for an adjournment based on the serious illness of his friend and business partner and then left the courthouse. Roy J. elected to proceed with the hearing on August 11th in the appellant’s absence. Based on the information provided to him, he was satisfied that he should vary the access order he had made at trial. In the end, he ordered that the appellant should have no access other than by further order of the court. It is clear to us that Roy J. anticipated that there may well be a further application by the appellant for access.

[5] The appellant did not seek any further order from the trial court, but instead launched an appeal, albeit in the wrong court. The appellate process has wound on and the appellant eventually finds himself here some three and a half years after the order of Roy J. He has not seen his children during that time period. They are now fourteen and twelve, respectively.

[6] We see no error in the order of Roy J. made on August 11th. He had a legitimate basis for concern with respect to the continued access by the appellant and his order reflects that concern. Roy J. obviously contemplated that the appellant could make a further application before him or another judge of the trial court to regain access if he wanted access where he could explain the relevant events. As indicated earlier, no such application was ever made to the trial court. We also note that apart from the first weekend, the appellant did not attempt to exercise his access rights between the end of June when the order was made and August 11th when the order was varied.

[7] Finally, we are satisfied that it was open to Roy J. to proceed in the face of the appellant’s written request for an adjournment. Trial judges must exercise a discretion in determining whether to grant adjournments and, in our view, there was a basis upon which Roy J. could decline to adjourn the matter and proceed to make the order he did, particularly when he made an order which clearly gave the appellant the opportunity to come back before the court on the question of access if he so wished.

[8] There were other grounds of appeal raised in the factum and briefly alluded to by the appellant. We see no merit in those grounds of appeal.

[9] The appeal is dismissed.

[10] Costs to the respondent on the appeal in the amount of $7,000, inclusive of GST and disbursements. That amount, as well as the three costs orders referred to in para. 28 of the respondent’s factum, may be payable out of the $12,000 paid into court as security for costs by the order of Justice McWilliam on October 20, 2005.

“Doherty J.A.”

“S. Borins J.A.”

“J. MacFarland J.A.”