Court of Appeal for Ontario

Citation: N.G. v. J.T.W., 2013 ONCA 4

Date: 2013-01-09

Docket: C55699

Before: MacPherson, Cronk and Lauwers JJ.A.

Between:

N.G.

Applicant (Respondent)

and

J.T.W.

Respondent (Appellant)

Counsel:

No one appearing for the appellant

Steven A. Fried, for the respondent

Heard and released orally: January 7, 2013

On appeal from the orders of Justice Stanley J. Kershman of the Superior Court of Justice, dated May 30, 2012.

Endorsement

[1] The appellant did not appear for the hearing. However, he sent a letter inviting the court to hear the appeal on the existing record.

[2] The appellant appeals the Orders of Kershman J. dated May 30, 2012. Although the first order dealt with several matters, the key component challenged by the appellant on this appeal is the one relating to the appellant’s access to his eight year old daughter. Kershman J. varied the order of Linhares de Sousa J. dated December 12, 2008 to provide that the appellant have supervised access to the child until such time as he provides a satisfactory mental health evaluation indicating that he is fit to care for the child on an unsupervised basis. The second order was a restraining order.

[3] The appellant appeals on two grounds.

[4] First, the appellant contends that the motion judge failed to consider key medical, police and other evidence in his consideration of the mental health of the appellant.

[5] We do not accept this submission. The appellant explicitly chose not to attend the hearing. He said that he was content to have the motion proceed on the basis that his position was set out in his written material. It is obvious from the motion judge’s comprehensive 83 paragraph judgment that the motion judge carefully considered the appellant’s position. Importantly, the question of the appellant’s mental health was canvassed in some detail in the motion judge’s reasons.

[6] Second, the appellant submits that the motion judge failed to consider the best interests of the child.

[7] We do not agree. The best interests of the eight year old child were the central focus of the motion judge’s reasons. He carefully and comprehensively reviewed the appellant’s mental health and his increasingly bizarre behaviour through the prism of this question: what is their effect, actual and potential, on this child? On the basis of the record before him, we see no error in the motion judge’s approach, analysis and conclusion on this issue.

[8] The court was advised by respondent’s counsel that the appellant has now undergone a medical assessment and that, based on that assessment, the respondent is now prepared to accept that there is no longer a need for a restraining order against the appellant and that unsupervised access is now appropriate. We note that this could be the subject of a consent order in superior court in Ottawa.

[9] The appeal is dismissed. The respondent is entitled to her costs of the appeal fixed at $10,000 inclusive of disbursements and applicable taxes.

“J.C. MacPherson J.A.”

“E.A. Cronk J.A.”

“P. Lauwers J.A.”