Court of Appeal for Ontario

Date: 2019-11-22 Docket: C67358

Judges: Simmons, Huscroft and Nordheimer JJ.A.

Between

Louise Artichuk-Murphy Applicant (Appellant)

and

Tyler Murphy Respondent (Respondent)

Counsel

Julie Stanchieri and Rachel Healey, for the appellant

Tyler Murphy, acting in person

Heard and released orally: November 20, 2019

On Appeal

On appeal from the order of Justice Alan P. Ingram dated April 23, 2018 with reasons reported at 2018 ONSC 1330.

Reasons for Decision

[1] Ms. Artichuk-Murphy appeals from the order of the trial judge that addressed various issues arising from the marriage breakdown. Specifically, the appellant appeals from the trial judge's award of sole custody of their daughter to the respondent and from the trial judge's adjustment to the payment, by the respondent, of certain s. 7 expenses.

[2] There are two children of the marriage. One is the older son, who is not the biological son of the respondent, but was adopted by the respondent shortly after the marriage. The other is the younger daughter for whom the respondent is the biological father.

[3] The trial judge heard this matter in what is described as three phases over a number of months. As the trial judge observed in his reasons "This relatively simple case unnecessarily ended in a trial that started two years after the separation and has taken more than two years to complete".

[4] The trial judge heard considerable evidence on the issue of the custody of the two children. While the respondent sought custody of both, as did the appellant, the trial judge noted that the respondent became "resigned" to the fact that the son would remain with the appellant for a variety of reasons.

[5] With respect to the daughter, the trial judge concluded that it would be in her best interests to reside with the respondent in Nova Scotia where the respondent now resides. The trial judge gave a number of reasons for this conclusion including the fact that both sets of grandparents lived in Nova Scotia; the daughter wished to reside with the respondent; that the report of the Office of the Children's Lawyer recommended this result and that the appellant was more engaged with her son's hockey career than she was in the interests of her daughter. The trial judge also found that the conduct of the appellant, including making false allegations against the respondent, was problematic.

[6] The appellant contends that the trial judge erred in not applying the test set out in Gordon v. Goertz, [1996] 2 S.C.R. 27 before deciding to remove the daughter from Ontario and transfer her to reside in Nova Scotia. We do not agree with this submission. First it is not clear that the factors in Gordon v. Goertz should be strictly applied because this was an originating process as opposed to a motion to vary. Second, and in any event, the trial judge considered all of the factors that he ought to have considered before reaching the conclusion that he did. He gave thorough reasons for his conclusions. Most importantly, his decision was premised on what was in the best interests of the child which is, ultimately, the determining factor. As the decision in Gordon v. Goertz points out, at para. 50:

The ultimate question in every case is this: what is in the best interests of the child in all the circumstances, old as well as new?

[7] The appellant contends that the trial judge erred in relying on the "opinion evidence" of the investigator from the Office of the Children's Lawyer as it was not proffered as expert evidence on the subject of alienation. This court has already held that expert evidence is not required in this regard: see A.M. v. C.H., 2019 ONCA 764 at paras. 31-39. Rather, the evidence of the investigator was of her factual observations which the trial judge was entitled to take into account in reaching his conclusions.

[8] The appellant also complains that the trial judge limited the respondent's contribution to the hockey expenses of the son in exchange for requiring the respondent to contribute to the travel costs associated with providing access to the daughter for the appellant. In our view, it was open to the trial judge to balance these competing considerations in reaching the result that he did.

[9] Finally, the appellant seeks to have this court admit fresh evidence regarding certain problems that she says have arisen since the trial judgment. In particular, she complains about access problems with her daughter and the respondent's failure to pay the support that he is supposed to pay.

[10] In bringing this motion, the appellant misunderstands what is properly fresh evidence and misapplies the test for its admission as established in R. v. Palmer, [1980] 1 S.C.R. 759. The fresh evidence could not have effected the result of the order that is under appeal. The fresh evidence, at best, might provide the appellant with the opportunity to seek a variation of the order but it does not impact on an appeal of that order. In making that observation, we are fully conscious that all parties who are the subject of a court order are expected to fully comply with its terms.

[11] The appeal is dismissed as is the motion to admit fresh evidence. The respondent does not seek costs and none are ordered.

"Janet Simmons J.A."

"Grant Huscroft J.A."

"I.V.B. Nordheimer J.A."