Court of Appeal for Ontario

Citation: Giri v. Wentges, 2009 ONCA 606 Date: 2009-08-05 Docket: C49817

Before: Gillese, Lang and LaForme JJ.A.

Between: Nabanita Giri (Respondent) and John Taylor Wentges (Appellant)

Counsel: John Taylor Wentges, in person Steven A. Fried, for the respondent

Heard: July 31, 2009

On appeal from the judgment of Justice Linhares de Sousa of the Superior Court of Justice Family Court Branch dated December 12, 2008.

ENDORSEMENT

[1] The parties on this appeal have never married; they have never lived in a relationship resembling marriage, and they have a five year old daughter who is the principal object of this litigation. The appellant lives in Wakefield, Quebec while the respondent lives in Ottawa.

[2] The respondent mother brought an application for sole custody of their daughter. The trial judge, in a thorough and well reasoned decision ordered that the mother have sole custody of the child with liberal and generous specified access to the appellant. The appellant appeals the decision and seeks joint custody of the child with her primary residence to be with him.

[3] The trial judge’s reasons for deciding as she did include the young age of the child, the appellant’s problems with depression, his intractability and unreliability, the distance between the parties, the parties’ inability to agree on any major issues surrounding the child, the appellant being chronically late in bringing the child to school (or not bringing the child at all to school), his irresponsibility and unpredictability, and his frivolous and vexatious conduct in these proceedings.

[4] The trial in this matter took place on December 10th and 11th, 2008. The respondent, her brother and the child’s caregiver testified for the respondent. The appellant declined to cross-examine the respondent although he did cross-examine the brother and the child’s caregiver. The appellant testified on his own behalf but called no other witnesses.

[5] The appellant raises numerous grounds of appeal in his materials filed. However, in oral argument he made it clear that the essence of his appeal is that the trial judge’s decision to give the respondent mother sole custody of the child is unreasonable. He says that there is a “disconnect” between the findings made by the trial judge on his parenting capacity and her custody decision. We disagree.

[6] The trial judge described the “intense” conflict between the parties and, while acknowledging that the parties have been cordial at times, concluded that “there is no evidence of effective communication that will permit effective co-parenting”. The trial judge then gave detailed reasons for finding that the best interests of the child warranted giving the respondent sole custody.

[7] As to the remaining grounds of appeal, and given the appellant’s submissions before us, we do not propose to examine each of them separately. Rather, we are of the view that they are answered by the application of the basic legal principles that guide this court’s review of a trial decision on the matter of custody.

[8] First, this court will only review custody disputes in the name of the best interests of the child where the trial judge has made a material error. A trial judge is not obliged to discuss every piece of evidence in detail, or at all, when explaining his or her reasons for awarding custody to one person over another: Van de Perre v. Edwards [2001] S.C.R. 60.

[9] In our view, and as we have already noted, the trial judge’s reasons were thorough and leave no doubt as to what evidence she considered and why she decided as she did. She correctly identified the applicable law, properly assessed the evidence and made unassailable findings of fact in the requisite matters. We see no errors in her analysis or conclusions, all of which focused on the best interests of the child.

[10] Second, as this court has repeatedly held, joint custody requires a mutual commitment between parents to cooperate on matters pertaining to the raising of their child, and an ability for the parents to put their own interests behind those of the child: see Kaplanis v. Kaplanis (2005), 2005 CanLII 1625 (ON CA), 249 D.L.R. (4th) 620 (Ont. C.A.).

[11] The trial judge’s reasons, together with the record, reveal that she was well aware of this principle and correctly assessed and applied the relevant evidence in arriving at her decision. Again, we see no error in her approach or decision.

[12] In sum, we conclude that the trial judge correctly applied the “best interest of the child” test based on all of the factors in this case and on the evidence before her. The appellant has failed to persuade us of any material errors made by the trial judge, either on a question of law or with respect to her findings of fact.

[13] For these reasons, the appeal must be dismissed. The respondent is awarded her costs of the appeal in the amount of $12,000, inclusive of disbursements and GST.

“E.E. Gillese J.A.”

“S.E. Lang J.A.”

“H.S. LaForme J.A.”