ONTARIO SUPERIOR COURT OF JUSTICE
Court File No.: FS3164-12
Date: 2012/10/30
BETWEEN:
GREGORY BRIAN GILSON Appellant – and – CHANTALLE RENNEE BATTISTON Respondent
Edward Rae, for the Appellant
Self, for the Respondent
Heard: October 25, 2012
The Honourable Mr. Justice Paul U. Rivard
1This appeal will be dismissed. I do not accept the appellant’s submissions that the trial judge erred in law in considering the issues of custody and mobility together instead of dealing firstly with custody, then with mobility. The trial judge clearly articulated that the first issue for him to decide was that of custody.
2His focus was directed to Section 24(1) of the Children’s Law Reform Act which requires that custody and access to a child must be determined on the basis of the best interests of the child. The trial judge stated his reasons for rejecting a joint custody arrangement, namely, that neither party was seeking an order for joint custody.
3He then considered the evidence relating to each parent’s ability to properly parent their child. There was ample evidence to support the conclusion that both parents were equally capable of caring for their child.
4In further addressing the child’s best interest, the trial judge considered the factors to be considered as directed by the Ontario Court of Appeal in Berry v Berry (2011) ONCA 705. He correctly concluded that the desirability of maximizing contact between the child and both parents was a factor to be emphasized in this case. That was an approach which was appropriate in these circumstances. It was also open to the trial judge, on the evidence, to conclude that contact between this child and her parents would be enhanced in the event she were to reside with her mother.
5It then followed that custody should be awarded to the mother. The mobility issue was moot because the mother had already moved and was not prepared to return. Both parties recognized this by claiming sole and not joint custody of the child.
6I am also unable to accept the appellant’s submissions that the trial judge misconstrued the evidence to the extent that it constituted a palpable and overriding error. While it was not correct for the trial judge to say the appellant was self-employed, that error was not so important as to impact on the final decision. The small issue being addressed by the trial judge related to the greater flexibility the appellant had in his exercise of access. Not only does the evidence support he had more flexibility, I am informed by the appellant’s counsel that the appellant is now self-employed.
7I am satisfied the trial judge properly considered the evidence before him, made findings of fact supported by that evidence and properly applied the applicable legal principles.
8The respondent objected to this appeal being heard on the basis of procedural requirements not having been complied with. I am not prepared to give effect to those arguments. I am, however, concerned about the undisputed statement that Mr. Gilson has ignored the trial judge’s order requiring him to pay child support. No child support has been paid.
9The consequence of this failure by Mr. Gilson may have received further consideration had this appeal not been dismissed on its merits.
The Honourable Mr. Justice Paul U. Rivard
Released: October 30, 2012
COURT FILE NO.: FS3164-12
DATE: 2012/10/30
ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: GREGORY BRIAN GILSON Appellant – and – CHANTALLE RENNEE BATTISTON Respondent REASONS FOR JUDGMENT on appeal The Honourable Mr. Justice Paul U. Rivard
Released: October 30, 2012