CITATION: S.R.C. v. R.H.S., 2009 ONCA 273

DATE: 20090331

DOCKET: C48372

COURT OF APPEAL FOR ONTARIO

Feldman, Gillese and Rouleau JJ.A.

BETWEEN:

S.R.C. (formerly S.R.S.)

Applicant (Appellant)

and

R.H.S.

Respondent (Respondent)

B. Gratl, for the appellant

W. Abbott, for the respondent

S.D. McIntyre, for the Children’s Lawyer

Heard and released orally: March 26, 2009

On appeal from the judgment of Justice James A. Ramsay of the Superior Court of Justice dated February 8, 2008.

ENDORSEMENT

[1] The appellant, Ms. C., had sole custody of her two sons. The respondent, Mr. S., is the biological father of the children. By order dated February 8, 2008, the custody and access arrangements were varied. Ms. C. appealed to this court. In the materials filed with the court, the Office of the Children’s Lawyer took the position that the appeal should be allowed, the order below be set aside and, given the fresh evidence that had accumulated, the matters of custody and access should be remitted for an expedited trial.

[2] In December 2008, before the appeal was heard, the parties entered into minutes of settlement to resolve the appeal (the “Minutes”). One term of the Minutes is that Ms. C. would abandon her appeal. Ms. C. now seeks to set aside the Minutes because, she alleges, she entered into them based on misleading information provided by Mr. S. as to the wellbeing of the children, particularly that of B.

[3] This court is not the proper forum in which to resolve the question of the validity of the Minutes. Having said that, we wish to note that it is without prejudice to the appellant’s right to move to set aside the Minutes in the proper forum.

[4] More importantly, however, all parties agree that the change in circumstances of the children, including the fact that B. is now under the care of the Peel Region Children’s Aid Society, constitutes a change in circumstance sufficient to warrant a variation hearing.

[5] Before the court today, counsel for the Office of the Children’s Lawyer took the position that little would be gained by continuing proceedings before this court and that the best interests of the children would be served by an expedited variation hearing in the Superior Court, with the full involvement of the Children’s Lawyer. She notes that as the Office of the Children’s Lawyer’s involvement ended when the Minutes were signed, it must be re-appointed, a matter for the Superior Court.

[6] We agree with the position taken by the Office of the Children’s Lawyer. From the representations made by the parties today, we understand that all parties seek to have the matters of custody and access resolved in the children’s best interests. We reiterate that from the vantage point of this court, this means that the questions of custody and access would be reconsidered in the Superior Court, as expeditiously as possible, and with the full involvement of the Office of the Children’s Lawyer.

[7] Accordingly, the appeal is dismissed. There shall be no order as to costs of these proceedings.

“K. Feldman J.A.”

“E.E. Gillese J.A.”

“Paul Rouleau J.A.”