Court of Appeal for Ontario

Citation: French v. Riley-French, 2012 ONCA 702

Date: 2012-10-19

Docket: C54859

Before: O’Connor A.C.J.O., Goudge and Juriansz JJ.A.

Between:

Todd Douglas French

Applicant (Appellant)

and

Christine Carol Riley-French

Respondent (Respondent in Appeal)

Counsel:

John F. Black, for the applicant (appellant)

Mark S. LaFrance, for the respondent

Heard and released orally: October 11, 2012

On appeal from the orders of Justice Stanley Kershman of the Superior Court of Justice, dated December 14, 2011.

Endorsement

[1] The trial judge granted the respondent custody of the three year old child of the marriage. He granted the appellant access supervised by the Salvation Army. The trial judge also made a five-year restraining order against the appellant concerning the respondent, the child and members of the respondent’s extended family.

[2] The appellant, who was unrepresented at trial, argues that the trial judge erred in refusing to adjourn the trial to enable him to properly prepare, produce documents and obtain witnesses. We see no error.

[3] The trial judge gave careful consideration to the circumstances and to the submissions of the parties. The underlying application had been commenced over 15 months before the trial date. The trial date had been set two months earlier. The best interests of the young child were at stake. It was important to bring resolution to the ongoing disputes. The trial judge’s decision to proceed was a proper exercise of his discretion. This court should not interfere.

[4] The appellant also argues that the trial judge erred in precluding him from calling his treating psychiatrist at trial. The appellant’s request to call the doctor first arose after the trial had begun. The trial judge correctly pointed out that the appellant had not complied with the requirements of the Family Law Rules for calling an expert witness. Although he had given a copy of the doctor’s report to the respondent, he had not given a list of her qualifications or curriculum vitae.

[5] That said, even if it would have been preferable for the trial judge to give the appellant some leeway in this regard, we are of the view that in the end the evidence of the doctor, which has been filed as fresh evidence on this appeal, would have made no difference to the trial judge’s orders.

[6] The evidence that the respondent should have sole custody of the child was overwhelming. The child had been in her custody since birth, had strong ties to her and virtually no emotional ties to the appellant. Attempts at supervised access by the appellant had failed completely.

[7] The trial judge’s decision to award the appellant supervised access was a wise one. The Salvation Army reports describing visits since the trial indicate that the relationship between the appellant and the child were very strained at first, but have gradually strengthened over the course of time.

[8] At some point it may be that an application to vary the access will be appropriate. On such an application, a court can consider the child’s best interests in light of the experiences of the access visits and the appellant’s current circumstances.

[9] Finally, we note that in making the restraining order, the trial judge based his decision on the numerous occasions of domestic violence. The evidence that the appellant had been violent to the respondent and her family in the past was clear and convincing.

[10] In the result, the appeal is dismissed. We fix costs in the amount of $10,000, inclusive of all disbursements and applicable taxes.

“Dennis O’Connor A.C.J.O.”

“S.T. Goudge J.A.”

“R.G. Juriansz J.A.”