Court of Appeal for Ontario

Date: February 20, 2019 Docket: C65719 Judges: Hourigan, Benotto and Huscroft JJ.A.

Between

Jennifer Kelly Nadine Myles Applicant (Respondent in Appeal)

and

Jordan William Myles Respondent (Appellant)

Counsel

S. Nadine Finbow and Lindsay Hayes, for the appellant

Ross H. Thomson, for the respondent

Heard and released orally: February 20, 2019

On appeal from: the judgment of Justice Silja Seppi of the Superior Court of Justice, dated June 29, 2018.

Reasons for Decision

[1] The appellant father appeals from the trial judge's decision allowing the respondent mother to move with their three children from Lion's Head, Ontario on the Bruce Peninsula to a location closer to her employment. She does not seek to move further than the Bruce/Grey counties, a distance that the father regularly drives to and from work.

[2] He submits that the trial judge misapprehended the evidence, failed to give sufficient weight to the Views of the Child Report, and came to a conclusion that was not in the best interests of the children. He also seeks to file and rely on fresh evidence which further describes the child's wishes.

[3] We do not accept these submissions. A trial judge's decision with respect to custody matter, including mobility, is afforded great deference by this court.

[4] The appellant can point to no palpable and overriding error. The trial judge carefully reviewed the evidence and made conclusions supported by the evidence. Her conclusion that the respondent was the primary caregiver was open to her on the evidence.

[5] The trial judge was careful to explain why she was not following the wishes of the oldest child as articulated in the Views of the Child Report. She correctly took them into account but as always, must base her decision on all of the evidence. We note parenthetically that the oldest child is now 17 years old and shortly will be able to determine for himself where he is going to live.

[6] The appellant's submission that the trial judge failed to take a full and sensitive inquiry of the best interests of the children is not well founded. On the contrary, her reasons disclose a careful analysis of the facts.

[7] Although the respondent consents to the admission of fresh evidence, in our view, the facts do not satisfy the Palmer test as they do not bear on a potentially decisive issue at trial. More importantly, the appellant has stated that the parties are unable to agree to a motion to change on consent. Fresh evidence on appeal is not a substitute for a motion to change.

[8] On this basis the appeal is dismissed. Costs of the appeal are payable to the respondent in the all-inclusive sum of $5,000.

"C.W. Hourigan J.A."

"M.L. Benotto J.A."

"Grant Huscroft J.A."