Court File and Parties

CITATION: Wenze v. De Paoli, 2011 ONCA 773

DATE: 20111208

DOCKET: C51578

COURT OF APPEAL FOR ONTARIO

Doherty and Armstrong JJ.A. and Hoy J. (ad hoc)

BETWEEN

Amanda Wenze

Appellant

and

Dean Louis De Paoli

Respondent

Shawn M. Philbert, for the appellant

James S.G. Macdonald, for the respondent

Heard and released orally: November 30, 2011

On appeal from the judgment of Justice Gisele M. Miller of the Superior Court of Justice, dated December 30, 2009.

ENDORSEMENT

[1] The appellant, Amanda Wenze, and the respondent, Dean Louis De Paoli, are the parents of Emerson De Paoli who was born on April 29, 2007. At the time of the trial in November 2009, the child was 2-1/2 years old.

[2] The appellant and respondent never married. They lived together from May 2007 to October 2007.

[3] The trial judge awarded sole custody of the child and sole decision-making for the child to Mr. De Paoli. Mr. De Paoli is to consult Ms. Wenze concerning major decisions involving the health and schooling of the child. The trial judge also ordered that each parent is to have equal time with the child. The trial judge provided a detailed and elaborate access order.

[4] The trial judge also made orders in respect of the financial arrangements between the parties concerning child and spousal support. In doing so, she credited Mr. De Paoli with certain expenses paid by him related to the home occupied by Ms. Wenze and the child for over two years.

[5] Ms. Wenze has appealed all aspects of the trial judgment although her counsel confined his argument to the issues of sole custody and what he referred to as occupation rent. In support of her appeal, Ms. Wenze has made an application to admit fresh evidence consisting of her affidavit in respect of Mr. De Paoli’s exercise of his custodial responsibility.

[6] We dismiss the application to admit fresh evidence as it does not satisfy the criteria for its admission. The proposed fresh evidence does not support the contention that the custody and access order is not workable.

[7] As to the merits of the appeal, we cannot find any error made by the trial judge. There was ample evidence to support the conclusion that Mr. De Paoli should be granted sole custody of the child. There was also evidence to support the other orders the trial judge made.

[8] In respect of the argument of counsel concerning occupation rent we observe first, that the trial judge did not characterize the order as one for occupation rent. Second, the credit she gave to Mr. De Paoli for the household expenses was fully justified on the record: see paragraphs 97 to 102 of the trial judge’s reasons.

[9] This was a fact driven case. The appellant seeks to retry the case in this court, which she is not permitted to do. The appeal is therefore dismissed.

[10] In respect of the costs award at trial, we see no basis to interfere and we therefore decline to grant leave to appeal. In respect of the costs of the appeal, the respondent is entitled to his costs of the appeal on a partial indemnity scale fixed at $5,000 inclusive of disbursements and applicable taxes.

“Doherty J.A.”

“Armstrong J.A.”

“Alexandra Hoy ad hoc”