Supreme Court of Canada

Novic v. Novic, [1983] 1 S.C.R. 696

Date: 1983-06-07

Milorad Novic (Plaintiff) Appellant;

and

Radmilla Novic (Defendant) Respondent.

File No.: 16780.

1983: May 19; 1983: June 7.

Present: Laskin C.J. and Dickson, Estey, McIntyre and Chouinard JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Family law—Custody—Best interests of the child—Whether or not trial judge failed to consider proper principles.

Appeal—Factual determinations—Right of appellate court to overturn factual determinations.

The trial judge, in a bitterly contested custody battle, found fault in both parents but understood his duty to be the determination of what was in the best interests of the children. The children had been with their mother for most of their lives. Yet, after full consideration of the matter, custody was awarded to the father. The Court of Appeal overturned that judgment without reasons.

Held (Mclntyre J. dissenting): The appeal should be allowed.

Per Laskin C.J. and Dickson, Estey and Chouinard JJ.: An appellate Court should not disturb factual determinations of a trial judge in a custody case. Here, the Court of Appeal overturned a well-reasoned trial judgment which was supported by extensive findings of fact and based that judgment on the statement that “the trial judge did not consider all the proper principles”. The trial judge, however, did consider the proper principles and made no error.

Per McIntyre J. dissenting: As a long delay intervened after the making of the original order, circumstances could have changed justifying a variation of the custody order. A new trial limited to the question of custody and access should be directed. This disposition would avoid the sudden uprooting of the children that would occur were the trial judgment restored.

[Talsky v. Talsky, 1975 CanLII 29 (SCC), [1976] 2 S.C.R. 292, applied]

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APPEAL from a judgment of the Ontario Court of Appeal allowing an appeal from a judgment of Hawkins L.J.S.C.O. awarding custody to appellant. Appeal allowed, McIntyre J. dissenting.

Paul Jewell, Q.C., and Miles Obradovich, for the appellant.

R.H. Raphael and M.B. Koreen, for the respondent.

The judgment of Laskin C.J. and Dickson, Estey and Chouinard JJ. was delivered by

THE CHIEF JUSTICE—Custody appeals are rare in this Court. This case, brought here by our leave, involved an unexplained reversal by the Ontario Court of Appeal of a well-reasoned judgment of a trial judge, Hawkins L.J.S.C.O., supported by extensive findings of fact. It was, of course, open to the Court of Appeal to re-examine the findings if they revealed any marked deficiency in the trial judge’s determination. That, however, was not the situation here. The entire judgment of the Court of Appeal rested on the single statement that “the trial judge did not consider all the proper principles”. It was abundantly clear that the trial judge did consider them and that there was no error of principle as strongly urged by counsel for the respondent wife. The view of this Court in Talsky v. Talsky, 1975 CanLII 29 (SCC), [1976] 2 S.C.R. 292, that an appellate Court should not disturb factual determinations of a trial judge in a custody case is even more cogent in the present case.

The custody trial was strongly contested between the parents whose animosity towards each other was manifest in the record. The subjects of the contest were two young children, a daughter now age six and a son now age seven. Two and one half years have elapsed since the judgment in appeal and three years since the judgment at trial. It is always unfortunate when custody proceedings are even marginally protracted but the proceedings

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here, ending in this Court, were brought with reasonable dispatch.

The children had lived with their mother for most of their lives, although the son had lived with the father for about eighteen months following the separation of the parties in December 1976. An interim custody order was made in June 1978, in favour of the mother when the father had refused access to the son by the mother. The trial judge found fault in both parents, certainly in their animosity to each other, but understood that his duty was to determine what was in the best interests of the children. The case was not an easy one, given the allegations and counter-allegations of the parents, but after his full examination of the matter the trial judge concluded that custody should go to the father. The Court of Appeal’s reversal was in no way defensible.It was strongly urged by counsel for the respondent that this Court re-examine the findings at trial and, indeed, consider the entire record. That is not this Court’s function. There can be no escape here from our conclusion that this appeal by the father must be allowed, the judgment of the Court of Appeal set aside and the custody order of the trial judge be restored. The appellant has not asked for costs and none will be awarded.

The following are the reasons delivered by

MCINTYRE J. (dissenting)—I agree with the Chief Justice that this appeal must be allowed, and I also agree that the reasons of the trial judge disclose that he addressed himself to the question of the welfare of the children in reaching his decision. I observe, however, that the decree nisi of divorce, which gave effect to this judgment, was dated May 28, 1980, and that, with the exception of a period of about eighteen months in 1976 and 1977, when the boy lived with his father, the children have resided with their mother. The six year-old girl has always lived with her mother and

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knows no other home environment than that created by her mother.

In view of the fact that a sudden uprooting of the children would result from a restoration of the trial judgment relating to custody, and in view of the long delay which has occurred since the making of the original order, for which neither party may be blamed, I would make a different disposition of the matter than that of the majority. It appears that this may be a case in which there has been such a change in circumstances since the trial as would justify a variation of the custody order, under s. 11(2) of the Divorce Act. I would be reluctant to restore the trial judgment in the absence of an inquiry on this point. Upon allowing the appeal, I would direct a new trial limited to the question of custody and access alone.

Appeal allowed, MCINTYRE J. dissenting.

Solicitors for the appellant: Jewell, Angus & Michael, Toronto.

Solicitors for the respondent: Feigman & Chernos, Toronto.