Court of Appeal for Ontario

Citation: Kerr v. Easson, 2014 ONCA 225

Date: 20140325

Docket: C57157

Before: Sharpe, LaForme and Tulloch JJ.A.

Between

Jeremy Albert Kerr

Applicant (Appellant)

and

Dana Lynn Easson

Respondent (Respondent in Appeal)

Counsel:

S. Philbert, for the appellant

K. Hughes and J. Cooper, for the respondent

Heard: March 24, 2014

On appeal from the judgments of Justice D.K. Gray of the Superior Court of Justice, dated March 16, 2013 and April 29, 2013.

APPEAL BOOK ENDORSEMENT

[1] We are not persuaded that the trial judge erred in finding a material change in circumstances sufficient to justify a variation to the overnight access contemplated by the consent order. The trial judge found that the appellant had neglected the child’s reading homework and that the child’s reading was adversely affected. This was combined with the appellant allowing the child to pay age-inappropriate video games.

[2] The trial judge recited and applied the correct legal test relating to material change.

[3] We are not persuaded the trial judge erred in failing to make an adverse credibility finding with respect to one of the teachers. The evidence regarding the neglect of reading homework was supported by documentary evidence, the evidence of the principal and another teacher and the appellant did not testify to explain his conduct which included altering documents.

[4] Accordingly, the appeal is dismissed.

[5] Costs to the respondent fixed at $10,000 inclusive of disbursements and applicable taxes.

“Robert J. Sharpe J.A.”

“H.S. LaForme J.A.”

“M.H. Tulloch J.A.”