Court of Appeal for Ontario
Date: 2017-01-23 Docket: C62385
Judges: Simmons, Brown and Roberts JJ.A.
Between
Tarek Mohammed Tawfik Abd Elaziz Appellant (Respondent)
and
Heba Wahba Respondent on Appeal (Applicant)
Counsel
David Sherr, for the appellant
Mark Trenholme, for the respondent
Heard: January 18, 2017
On appeal from the order of Justice Irving André of the Superior Court of Justice dated June 10, 2016.
Endorsement
[1] The issue on appeal concerns a change order for access to a seven-year-old child.
[2] The original order for access was made on February 28, 2014 following a two-day trial. A change order was made on June 10, 2016 under which the motion judge permitted enhanced overnight access to the father largely to respond to some issues the child was having concerning evening change-overs of childcare responsibilities as between parents.
[3] As a matter of common sense, change-overs proceed more smoothly if they do not occur at the child's bedtime but rather occur in neutral territory at the commencement of the school day.
[4] The appellant argues that in crafting his decision, the motion judge originally provided for Monday and Thursday overnights with the father in alternate weeks – but then, in response to a concern expressed by the mother, changed his endorsement so that the father would have overnight access on Thursdays only in alternate weeks. The concern expressed by the mother was that the revised schedule would amount to shared custody for child support purposes which would create issues concerning child support.
[5] The appellant argues that the trial judge erred in principle in revising his endorsement to limit the father's alternate week access to Thursday overnights only, based on a factor unrelated to the best interests of the child – namely the impact of the change on the child support regime.
[6] We would not accept this submission. The trial judge made a change order to respond to the father's concerns about the child's reaction to evening change-overs. Upon hearing the wife's objection to his originally crafted order, the motion judge deleted Monday overnight access in alternate weeks.
[7] In our view, it is apparent that the motion judge's intention was to respond to the presenting issue of evening change-overs. It was not his intention to change the overall access scheme of joint custody – but not shared parenting – which was crafted following a two-day trial.
[8] We see no error in his revised endorsement. We observe that the order as finalized provided for enhanced access to the father.
[9] We see no basis on which to interfere with any other aspect of the motion judge's order.
[10] The appeal is therefore dismissed. Costs of the appeal are to the respondent on a partial indemnity scale fixed in the amount of $1,000 inclusive of applicable taxes and disbursements.
Janet Simmons J.A.
David Brown J.A.
L.B. Roberts J.A.
