ONTARIO

SUPERIOR COURT OF JUSTICE

BRANTFORD COURT FILE NO.: FS-12-35
DATE: 2012/09/11

BETWEEN:

JOSEPH HUNTER
Self-represented

Appellant

• and -

BRANDI STEWART
Self-represented

Respondent

HEARD: July 30 and 31, 2012

The Honourable Madam Justice W.L. MacPherson

[ 1 ] This is an appeal by the father, Joseph Hunter, from the decision of Justice K.A. Sherwood, made on December 16, 2011. The respondent on the appeal is the mother, Brandi Stewart. The parties are the parents of the child, Madison Mercedes Anne Hunter, born […], 2003.

[ 2 ] Following a six day trial (which commenced in February 2011 and ended in October 2011), Justice Sherwood delivered his oral decision on December 16, 2011 which was incorporated into a court order issued January 13, 2012. Under that order, the mother was granted sole custody of the child, with specified access to the father.

[ 3 ] Joseph Hunter, appeals from that order and asks the court to make the following order:

(a) Custody of the child shall be granted to him;

(b) In the alternative, that the parties continue to share joint custody but that the child’s primary residence shall be entrusted to him and that he would be responsible for making the healthcare decisions concerning the child.

[ 4 ] The respondent requests that the appeal be dismissed.

BACKGROUND

[ 5 ] Brandi Stewart and Joseph Hunter resided together from August 2003 until May 2005. The child, Madison, was born of that relationship.

[ 6 ] In June 2006, Ms. Stewart commenced an application to deal with custody and access of the child. That application was resolved by Minutes of Settlement which were incorporated into a final order of Justice Thibideau, dated September 5, 2007 (“September 2007 order”).

[ 7 ] Under the September 2007 order, the parties were to share joint custody of the child, whose residence and day-to-day care was to be in the home of each of the parents as follows:

(a) With the father each day, Monday to Friday, from 6:30 a.m. to 5:00 p.m.;

(b) On alternate weekends, from Friday at 6:30 a.m. to Friday at 6:30 p.m. and from Saturday from 9:30 a.m. to Monday at 5:00 p.m.; and

(c) Specified Christmas access.

[ 8 ] Under that order, decision-making authority was divided between the parents such that the mother was to be responsible for all school and education related activities and extra-curricular activities, and the father was to be responsible for all medical decisions and anything regarding religion. In addition, both parties were to have equal entitlement and access to third party information regarding the health, education and welfare of the child.

[ 9 ] The September 2007 order also dealt with support. Based on the parenting arrangements and the child being with each parent on a relatively equal basis, the child support order represented the difference between what each of the parties would have to pay under the Child Support Guidelines and required a payment of $164.00 per month by Mr. Hunter to Ms. Stewart. Mr. Hunter was also required to pay 50% of the child’s daycare expense and 50% of the child’s extra-curricular activity expenses.

[ 10 ] In February 2009, Mr. Hunter brought a motion to change that order seeking an order of sole custody and to terminate the child support order effective February 1, 2009.

[ 11 ] On February 13, 2009, a weekend when the child was to be in the mother’s care, Mr. Hunter called Ms. Stewart to tell her that he was keeping the child for the weekend and that this was on the advice of the Children’s Aid Society. Mr. Hunter alleged that the child had been exposed to inappropriate sexual behaviour between Ms. Stewart and her boyfriend while in the mother’s care. He kept the child out of school and refused to return her to the mother.

[ 12 ] Ms. Stewart brought an emergency motion seeking the child’s return to her care.

[ 13 ] In her response to the motion to change, Ms. Stewart asked that Mr. Hunter’s claims be dismissed and she requested an order granting her sole custody with the father’s access to be specified as alternate weekends from Friday evening until Monday morning and on each Thursday in the evening until the following Friday morning. She also requested police enforcement.

[ 14 ] On February 23, 2009, on the initial return of the parties’ respective motions for a temporary order, Justice Thibideau confirmed the provisions of the September 2007 order with changes to the father’s time with the child, being alternate weekends from Friday at 6:30 p.m. to Monday at 6:30 a.m. and each Thursday at 5:00 p.m. to Friday at 7:30 a.m. with daycare drop-offs. A term of police enforcement was also included in the interim order.

[ 15 ] Between the commencement of the motion to change and the trial, the father brought seven motions for various matters including two motions for contempt wherein he sought the incarceration of the mother. Further, during this time, the mother brought various motions, primarily to deal with variations in child support, but also to request a restraining order.

THE ISSUES

[ 16 ] In his submissions, the appellant raised three grounds of appeal as follows:

1. Justice Sherwood misapprehended the facts at trial;

2. Justice Sherwood made erroneous evidentiary rulings in failing to admit into evidence the child’s disclosure; and

3. Justice Sherwood misapplied the facts to the law.

[ 17 ] The Notice of Appeal also referred to the appellant having been penalized by Justice Sherwood for enforcing the provisions of the September order. However, to the extent that both Motions for Contempt were dismissed, it is apparent that not only Justice Sherwood, but those judges hearing the Contempt Motions, felt that they were without merit and so it is not necessary for me to address this ground of the appeal.

STANDARD OF REVIEW ON AN APPEAL

[ 18 ] The appropriate standard of appellate review of a trial decision is set out in Housen v. Nikolaisen , [2002] S.C.R. 235. An appeal is not a re-trial of the case. The appropriate standard of appellate review on pure questions of law is one of correctness. An appellate court is permitted to replace the trial judge’s decision on pure questions of law. However, the appellate court cannot reverse findings of fact of the trial judge, unless there has been a “palpable and overriding error” that constitutes a substantial wrong or miscarriage of justice. Inferences of fact are to be reviewed on the same standard as findings of fact, questions of mixed fact and law, those involving the application of the legal standard to a set of facts are also reviewed on the standard of “palpable and overriding error.”

[ 19 ] An appeal is not a re-hearing of the case and the judge’s decision is entitled to due respect ( Carter v. Brooks (1990), 2 O.R. (3d) 321 (ON C.A.)). The court confirmed that:

The appellant therefore must show that the judge erred in his appreciation of the evidence, in the inferences he drew from the evidence, or in his application of the relevant legal considerations.

THE JUDGMENT OF JUSTICE SHERWOOD

[ 20 ] In his reasons for judgment, Justice Sherwood found that there had been a material change in circumstances that affects or is likely to affect the best interests of the child in accordance with s. 29 of Children’s Law Reform Act. He identified these changes as follows:

1. At the time of the September 2007 order, Madison was four years of age and she was not in school. At the time of the trial, she was eight years of age and was attending school on a full time basis which affected her availability to spend time with each parent.

2. When the September 2007 order was made, Mr. Hunter was unemployed or worked only the afternoon shift and he was available to care for the child during the daytime hours when Ms. Stewart was working. Shortly thereafter, Mr. Hunter’s employment changed such that he worked primarily day shifts and was no longer available to care personally for the child during the day.

3. As the amount of time that the child was in the father’s care had changed and was less than it was at the time of the September 2007 order, a review of the child support obligations was necessary as the circumstances no longer warranted a set-off of child support.

4. As of the September 2007 order, it was anticipated that the parties would be able to co-operate sufficiently to jointly parent the child. Referencing the multiple interim motions, the petty conduct of the parties in dealing with each other and that since December 20, 2010, the parties had been under mutually requested restraining orders not to contact each other or to attend at each other’s residence or place of employment, Justice Sherwood found that the joint parenting plan had become totally dysfunctional and was no longer feasible.

[ 21 ] Mr. Hunter did not dispute these findings or that a material change in circumstances had taken place.

[ 22 ] In his decision, Justice Sherwood went on to determine how the custody and access provisions should be varied to reflect the changed circumstances taking into account the considerations set out in s. 24(2) of the Children’s Law Reform Act .

[ 23 ] Justice Sherwood noted that the child needed an order that:

(1) promotes the love, affection and emotional ties that she has with each parent, free from interference or undermining behaviours and tactics of the other parent;

(2) will reasonably facilitate her ongoing contact with members of her extended family;

(3) will allow to continue what stability she has enjoyed as far as her primary residence, daycare and access, in which she seems to be thriving, despite the considerable level and ongoing conflict between her parents.

[ 24 ] To attain these objects, Justice Sherwood noted that an order was required which minimized the opportunities for ongoing conflict between the parents and that was very specific as to custody and access, void where possible, of ambiguity and which effectively restricted the contact and communication between the parents.

[ 25 ] With those objectives in mind and based on the evidence before him, Justice Sherwood found that the mother had demonstrated the greatest ability to put Madison’s best interests to the forefront and that where any discretion needed to be exercised, she would be the one most likely to exercise it fairly and to consider what is best for Madison. In contrast, he found that Mr. Hunter, if given any discretion, would exercise it arbitrarily to further his own position in his ongoing conflict with Ms. Stewart, as opposed to considering what might be best for Madison.

[ 26 ] Justice Sherwood also found Ms. Stewart to be the parent least likely to exaggerate circumstances for her own gain and as between the two parties, she would be more likely to be conciliatory and allow concessions and reasonable variations to the access where warranted.

[ 27 ] The order of Justice Sherwood provided for a variation of the September 2007 order and was very detailed and specific regarding custody and access as follows:

1. Ms. Stewart was granted sole custody and responsibility for decisions regarding the child’s education, health care, religion and upbringing;

2. Neither party was to speak disparagingly about the other in the presence of the child;

3. Mr. Hunter was granted specified access to the child:

During the school year – Each Thursday after school at approximately 3:20 p.m. until Friday at 8:45 a.m. and alternating weekends from Friday after school at approximately 3:20 p.m. until Monday at 8:45 a.m.

During the summer break – Each Thursday at 4:30 p.m. until Friday at 9 a.m. and alternating weekends from Friday at 4:30 p.m. until Monday at 9 a.m.

Summer Holiday time was specified as were the Christmas holidays, March Break, Mother’s Day and Father’s Day, the Child’s birthday and Halloween.

4. Police Enforcement was continued along with details regarding the pick-up and drop-off arrangements for the child.

5. Child support was varied to require Mr. Hunter to pay full child support under the Child Support Guidelines and contribute toward daycare and other s. 7 expenses.

6. The mutual restraining order was continued.

MOTION FOR FRESH EVIDENCE

[ 28 ] At the commencement of the appeal, the appellant brought a Motion for the introduction of fresh evidence consisting of a six page Affidavit detailing ongoing difficulties with access. There were numerous complaints regarding the care provided by the respondent, including that the child has cavities as a result of being given unhealthy and sweet food by the respondent (an allegation made at the trial) and an allegation that the respondent had not properly treated warts on the child’s foot. Attached as an Exhibit was a 100 page collection of e-mails between the parties from mid-October 2011 to the end of May 2012. Also attached as an Exhibit was the child’s School Journal to detail that the appellant was not given an opportunity to review the child’s homework (also an allegation made at trial). The submission of the appellant was that the court should receive this fresh evidence as it confirmed the respondent’s behavior in acting contrary to the best interests of the child.

[ 29 ] The respondent filed an Affidavit in reply which in essence was a denial of the bulk of the allegations. It was her position that the Court should not allow any additional evidence as it was nothing more than “He said/She said” and was not relevant to the Appeal, except to show that the campaign of harassment and the appellant’s obsession with returning the matters to court repeatedly and without merit.

[ 30 ] It was telling that at the commencement of the Appeal, the appellant sought to tender an additional fifteen page reply Affidavit with lengthy exhibits attached. Rather than objecting to the filing of same, the respondent consented to the late filing, but maintained her position that the Motion should be dismissed. It was only then that the appellant served her (11:30 a.m.) with the reply material.

[ 31 ] Under s. 134 (4) (b) of the Courts of Justice Act R.S.O. 1990 c. C. 43, the court is able to receive additional evidence by affidavit, transcripts of oral examination or in examination before the court or in such other manner as the court directs so as to enable the court to determine the appeal.

[ 32 ] In the context of a custody and access case, the case law provides that the test for whether fresh evidence should be admitted on an appeal is a relaxed version of the four-part test set out in the civil context as set out in R. v. Palmer , [1980] 1 S.C.R. 795 at 775 which is:

1. The evidence should not be admitted if, through reasonable diligence it could have been adduced at trial;

2. The evidence must be relevant to a decisive or potentially decisive issue;

3. The evidence must be credible or reasonably capable of belief; and

4. The evidence must be such that, if believed and considered along with the other evidence, it could have affected the result at trial.

[ 33 ] It was evident from a review of the material submitted by the appellant that it was not possible to determine which party’s version of events was correct. There were far too many contradictions that could not have been resolved simply from reviewing the Affidavits. In contrast to Justice Sherwood who was in the best position to determine credibility after hearing from the parties and their witnesses, this simply would not have been possible on the appeal.

[ 34 ] Some of the allegations (failing to provide healthy food and failing to provide proper medical care) had been raised at the trial. While the child’s problems with warts only occurred after the trial, the manner in which the appellant dealt with the respondent on this issue did little to advance his case. Rather than support the appellant’s position that these concerns painted the respondent in a bad light as a parent, it actually highlighted his lack of perspective and obsession with proving the respondent to be a “bad” parent.

[ 35 ] At best, the contradictory Affidavits confirmed the dysfunctional relationship of the parties and that a joint custody arrangement was simply not feasible. Clearly, the evidence would not have resulted in a different result at trial.

[ 36 ] Applying the four part test and recognizing that, on an appeal, a court is more likely to receive fresh evidence if it significantly impacts the best interests of the child, I find that there is no basis to admit the fresh evidence on the appeal and the motion is dismissed.

[ 37 ] For those reasons, I am not prepared to consider any additional evidence on the appeal, except the Factums and Appeal Books and the Transcripts of the proceedings as filed.

ANALYSIS

Did Justice Sherwood Misapprehend the Facts at Trial?

[ 38 ] In the appellant’s Factum and in his submissions, the appellant noted numerous examples of the respondent not acting in the child’s best interests and not encouraging a relationship between the child and her father, which included:

a) insisting that any changes to the access to be court ordered;

b) not permitting the child to attend at her half-brother’s birthday party; refusing to agree to four weeks summer access; and not allowing father access on Christmas day;

c) having made derogatory comments about the appellant and stating her intention to ruin his relationship with the child.

[ 39 ] A review of the transcripts confirms that the respondent did agree to extended access (Thursday overnight to Friday morning) and alternating weekends (Friday evening to Monday morning) in accordance with the parents’ and child’s availability, but she did require the protection of a court order given that the appellant had previously withheld the child.

[ 40 ] Further, and while the respondent did not always agree to all of the additional access that was requested by the appellant, she did agree to change the access schedule to accommodate Madison attending her half-brother’s birthday parties and to permit Christmas access. Similarly, while the respondent had proposed that the child spend two non-consecutive weeks each summer with the appellant, he seems to equate the fact that she did not accede to his request of four weeks summer access as indicative of her inability to allow reasonable variations in the best interests of the child.

[ 41 ] The appellant also submits that these incidents were examples of the respondent wanting to exclude him from the child’s life. While the respondent admitted saying it was her intention to ruin the father-daughter relationship, she did explain that this was said in the course of a heated conversation and in reply to the appellant’s comments to her.

[ 42 ] The appellant’s argument appears to be based on an erroneous assumption that given that the original intention of the parties under the September 2007 order was that the child would be in each parent’s care fifty per cent of the time (which the respondent readily admitted on cross-examination), this equal time-sharing had to continue regardless of any changes in the parties’ and the child’s circumstances and that anything less was an indication of the respondent’s refusal to involve him in the child’s life.

[ 43 ] His position also seems to be based on the appellant’s erroneous assumption that the applicable legislation was s. 20 of the Children’s Law Reform Act which states:

Except as otherwise provided in this Part, the father and the mother of a child are equally entitled to custody of the child.

[ 44 ] In fact, the applicable legislation, presuming that a material change in circumstances has occurred, is s. 24 of the Children’s Law Reform Act which sets out the factors to be applied in determining the best interests of the child.

[ 45 ] The appellant also emphasized that the respondent had been evasive and deceitful in her evidence to the court, highlighting:

a) that she denied having legal counsel, while admitting that she spent about 10 minutes with Duty Counsel prior to signing the Minutes of Settlement in September 2007;

b) that she denied telling the Children’s Lawyer that the father’s access would have to be reduced once the child attended school on a full-time basis and then admitting same when shown the Report of the Office of the Children’s Lawyer; and

c) that she denied knowing more than two persons named Rob, but later admitting that there was another person named “Rob” on her Facebook, who she explained was not someone that came to mind as she had not had recent contact with him.

[ 46 ] It was evident that the appellant conducted thorough cross-examinations of the respondent. Although complete transcripts for each day of the trial were not available on the appeal, part way through the cross-examination of the respondent, it was noted by Justice Sherwood that the cross-examinations had lasted four to five hours, with the appellant indicating that he was only half way through his questioning.

[ 47 ] Justice Sherwood had the benefit of hearing extensive evidence from both parties. While the appellant noted apparent contradictions in the evidence of the respondent, the mere fact of a contradiction does not mean that the witness is being untruthful. It was evident that Justice Sherwood was satisfied with the explanations provided as to any such inconsistencies, and he was in the best position to assess credibility.

[ 48 ] Finally, the appellant disputed that there was any basis for Justice Sherwood to have found that he would exaggerate circumstances to advance his own position in the ongoing conflict between he and Ms. Stewart. However, there was ample evidence from which this inference could be drawn, three obvious examples being as follows:

1. The motion to change was brought based on a disclosure from Madison about inappropriate sexual behaviour between the mother and her boyfriend that the child had witnessed. Based on what he perceived as a need to protect the child, she was withheld from the mother for a 10 day to two week period in February 2009. The Children’s Aid Society of Brant became involved and conducted an investigation. Contrary to the father’s suggestion that he had been advised by the Society to keep the child, the letter from the Society dated February 23, 2009 confirmed that they did not direct Ms. Stewart’s access to the child to be supervised nor did they direct Mr. Hunter to obtain an order for custody but rather, the Society encouraged Mr. Hunter to abide by the present custody/access arrangement. The March 10, 2009 letter from the Society confirmed that following their investigation, there were no protection concerns and their file had been closed. One would have expected that once that investigation had been completed, that would have been the end of the matter. Instead, the father pursued his claim for sole custody.

2. Madison fell from her bicycle and fractured a small bone in her wrist in September 2010. The mother indicated that she had tried to contact the father but his message machine was full. He indicated that he was never advised of the incident and only learned of it through a babysitter. The mother had taken the child to a walk-in clinic for treatment and could not recall the name of the doctor who had treated the child. Under the September 2007 order, the father was the parent to make medical decisions for Madison. However, he made a great deal of the fact that the respondent had not been able to provide the name of the walk-in clinic or the doctor and brought a Motion for Contempt to compel this information.

3. The mother was involved in a minor collision in May 2011. The collision was caused by another driver. Madison was a passenger in the vehicle at the time. There was minimal damage to either vehicle and the mother indicated that Madison exhibited no injury and made no complaint to either herself or the babysitter at any time following the accident. It was noted by Justice Sherwood that the appellant insisted on extensively questioning the mother about the “car crash”. On the basis of the child’s complaints to him, she was taken to another doctor and he obtained a suitcase with wheels for the child to carry her belongings to and from school. The appellant’s obsession with the extent of the car accident led to him photographing the mother and child and the babysitter. The police had to become involved, resulting in the caregiver refusing to deal with the appellant given his harassing conduct.

[ 49 ] In contradiction with the father’s own evidence that the child was healthy and energetic, Justice Sherwood found the above to be examples of the father exaggerating the child’s injury or health issues when it suits his purpose, in this case to advance his claim for sole custody.

[ 50 ] Having reviewed the lengthy transcripts of the proceedings and as highlighted by the parties in their factums and in their submissions which took place over a day and a half, it is abundantly clear that there was no misapprehension of the facts. There was ample evidence from which Justice Sherwood could find that a joint custody arrangement was not workable. Further, and despite the evidence of animosity between the parties, there was plenty of evidence from which Justice Sherwood could draw the inference that the respondent would not arbitrarily exclude the father from the child’s life and that she would deal with variations in access from the perspective of what was in the best interests of the child. However, based on the evidence, it was clear that Justice Sherwood properly inferred that if the appellant were afforded the opportunity to exercise his discretion, he would not do so in a reasonable manner consistent with the child’s best interests.

Did Justice Sherwood Err in Failing to Admit Into Evidence the Child’s Disclosure to Andrea Blackley?

[ 51 ] Throughout the trial, the appellant sought to introduce various tape recordings of the parties and the child. In Mr. Hunter’s evidence, he described how he would often tape telephone calls between the parties, messages from Ms. Stewart, access exchanges as well as making tape recordings of the child, many of which he would subsequently have transcribed. These recordings and the transcripts of same were not allowed into evidence by Justice Sherwood.

[ 52 ] The most significant recording related to a disclosure that was made by the child in the presence of Andrea Blackey (the mother of the appellant’s other child, Beau) and the appellant.

[ 53 ] Justice Sherwood did not permit Ms. Blackey to testify as to what Madison had said to her as it was hearsay evidence, noting that Ms. Blackey did not have any special training or expertise in interviewing children with respect to allegations of this nature nor did she employ any special technique in asking questions. Justice Sherwood did state that he could take note of the fact that a discussion had taken place and that as a result of that discussion, certain steps were taken by the father and Ms. Blackey in reporting the matter to the Children’s Aid Society.

[ 54 ] Although the appellant referenced R. v. Smith , R. v. Khan and K.G.B. , in his Factum, he did not provide any citations for these cases. He also referred to an obligation of the court to ensure that unrepresented parties understand the process and that Justice Sherwood erred in not listening to the tape of the conversation between Madison and Ms. Blackey. The appellant submitted that the disclosure was admissible and should have been admitted as proof of the truth of the facts alleged by Madison to have occurred.

[ 55 ] The decisions referred to by the appellant ( R. v. Khan, 1990 77 (SCC) , [1990] 2 S.C.R. 531 , R. v. Smith, 1992 79 (SCC) , [1992] 2 S.C.R. 915, and R. v. B.( K.G.), 1993 116 (SCC) , [1993] 1 S.C.R. 740) were cases that dealt with the testimony of children in the context of a criminal proceeding. It is evident that in cases which have involved the protection of a child, a principled approach has been followed such that if it can be shown that the evidence is necessary and reliable, as set out in Khan and Smith, “out of court” statements made by a child, may be admitted to save the child from the trauma of having to testify in court.

[ 56 ] However, in the context of a custody/access case, as set out by the Ontario Court of Appeal in Sordi v. Sordi ( 2011 ONCA 665 ), whether or not to allow taped conversations into evidence is within the discretion of the trial judge and in exercising that discretion, there must be a balancing of the public policy concerns, namely to discourage the use of secretly recorded conversations in family law proceedings, as against the probative value of the evidence in relation to the issues before the trial judge.

[ 57 ] In the context of this case, the father sought sole custody, or in the alternative, primary residence of the child, based on a disclosure that the child had made which the father had tape recorded. While he may have had initial concerns that the child was not being properly cared for by the mother and that she was in need of protection, it was evident that on the return of the mother’s emergency motion that these concerns were not shared by the Society. As was clear from the correspondence filed at the trial, the Society did not have any protection concerns; they did not require the child to be removed from the mother’s care nor for her time with the child to be supervised; and the father had been told to follow the existing court order. Further, following an investigation by the Children’s Aid Society, their file was closed.

[ 58 ] Justice Sherwood did not ignore the fact that a disclosure had been made by the child, but on the evidence before him, it was clear that there were no protection concerns raised by that disclosure. In the context of a custody and access dispute, it is difficult to see how the taped conversation would be relevant to an assessment of the child’s best interests. If anything, it is more indicative of the lengths to which the appellant would go in advancing his claim for sole custody.

[ 59 ] Given the obvious opportunities for abuse and the need to discourage parents from recording conversations with young children and the limited probative value of the evidence tendered on the issues before him, there was no error in the manner in which Justice Sherwood exercised his discretion in excluding the tape recording.

Did Justice Sherwood Misapply the Law to the Facts?

[ 60 ] The applicable law in this case was s. 24(2) of the Children’s Law Reform Act . Justice Sherwood confirmed the relevant provisions of that section which would apply to these facts.

[ 61 ] It was apparent that a joint parenting arrangement was no longer feasible. A sole custody order was needed so that the child could enjoy stability in her life and to reduce the ongoing conflict between the parties. Having found that the respondent recognized the importance of the father continuing to be involved in the life of the child through regular contact (albeit not as often as the father had requested), and having found that as between the two parents, it was the respondent who would promote Madison having a positive relationship with both parents, whereas the appellant would exaggerate the circumstances in his favour, it followed that the order that was in the best interests of Madison was one that granted sole custody to the mother.

[ 62 ] It is significant that from a review of the transcripts as well as from the reasons of Justice Sherwood, that despite the overwhelming animosity between the parties and the ongoing lengthy litigation between them, the respondent had no difficulty acknowledging that the appellant was a good father and that he had a close bond with the child. She had no concerns about the care provided to the child while in the father’s care and that despite the difficulties between the parents, she would continue to advance the father having an active and extensive involvement in the child’s life.

[ 63 ] Justice Sherwood made no palpable and overriding errors of law. He made no error in applying the law to the facts. As previously set out, he drew proper inferences from the evidence before him and he applied all of the relevant legal considerations in coming to the conclusions that he did. His decision is entitled to due respect and there is no basis for this court to interfere with that decision.

ORDER

[ 64 ] For the above reasons, the appeal is dismissed.

COSTS

[ 65 ] At the hearing of the appeal, each party made submissions as to the level of costs that should be awarded if they were successful.

[ 66 ] The appellant’s position was that both parties should be responsible for their own costs.

[ 67 ] The respondent sought costs of $25.00 per hour for her attendance at court on the appeal, which was the equivalent of her wage loss from work to attend court. She also sought $500.00 for her time in preparing the material for the hearing of the appeal.

[ 68 ] The respondent has been successful as the appeal was dismissed and she is entitled to costs. Taking into consideration that the hearing took place over a day and a half and the material prepared was extensive, the appellant shall pay costs to the respondent in the amount of $750.00 to be paid within 60 days of release of this decision.

MacPherson J.

Released: September 11, 2012

BRANTFORD COURT FILE NO.: FS-12-35
DATE: 2012/09/11

ONTARIO SUPERIOR COURT OF JUSTICE BETWEE N: JOSEPH HUNTER Appellant - and - BRANDI STEWART Respondent REASONS FOR JUDGMENT MacPherson J.

Released: September 11, 2012