ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: FS3057-12
DATE: 2012/11/13

BETWEEN:

PAUL GASTON JOSEPH BOYER
Applicant (Respondent on Appeal)

– and –

COLLEEN MARGARET GRATTON
Respondent (Appellant on Appeal)

William Sangster, for the Applicant (Respondent on Appeal)
Edward Rae, for the Respondent (Appellant on Appeal)

HEARD: November 1, 2012

The Honourable Mr. justice paul u. rivard

REASONS FOR JUDGMENT

1The Appellant submits the trial judge erred in law in failing to consider what would be the appropriate disposition should the Appellant return to North Bay to reside on a full-time basis with her children. This court is directed to the cross-examination of William Donald Bell at the trial when he was asked the following question:

“Q. If Her Honour ordered Paige to come back to North Bay, do you think Colleen would come back?

A. Well, we would almost have to.

Q. Would you move back with her?

A. Yes.”

2Other than this equivocal response by the Appellant’s spouse, as to whether Colleen would come back, there was no evidence before the trial judge that the Appellant had any intention of returning to live in North Bay should Paige’s place of residence be changed by the court. The Appellant had clearly testified at trial that she lived in Chesley with Mr. Bell and her four children. She told the court the children were enrolled in and attending school near Hanover. Things had improved significantly for her and the children since her move. She had a new doctor and her two boys were under the care of a paediatrician. They were also receiving counselling.

3The Appellant’s evidence could only be interpreted as a clear resolve by her to continue to reside near Hanover on a permanent basis. I could not find anything the Appellant or her counsel said to the trial judge which indicated a willingness or an intention by the Appellant to return to live in North Bay. In such circumstances, the trial judge was entitled to view the situation as a material change of circumstances necessitating a review of the custodial arrangement relating to the child Paige. The trial judge could not be expected to consider the option of the Appellant returning to live in North Bay when the Appellant herself didn’t put forward that alternative.

4In her decision, the trial judge identified correctly the issues she was to decide. These issues arose from the expressed wishes of each party; the Appellant wanted principal residence of her three children subject to specific access to Mr. Boyer; Mr. Boyer wanted custody of Paige as well as principal residence of Paige when she started school in September 2012.

5In considering these issues, the trial judge properly reviewed the evidence called at trial in the context of the child’s best interests. She articulated it was clear to her Mr. Boyer was a very good father to Paige; that he would facilitate visits by Paige with her extended family; that he would provide her with stability, care and a good education. The trial judge considered Paige’s attachment to her brothers and the impact her change of residence would have on her relationship with them. It was the trial judge’s conclusion that, “from the child-centred perspective”, a change of residence outside of North Bay would not be in the child’s best interests. Deference must be given to this conclusion in the absence of any material error. I am mindful that cases such as this one are not only difficult to decide, they also turn on their particular facts. The trial judge had the opportunity and the advantage to see and to hear the witnesses called and, as a result, was in the best position to decide the child’s best interests. In the absence of an error in law or misapprehension of evidence by her, it would be wrong to interfere with her decision.

6Both parties have presented “fresh evidence” on this appeal. That evidence is, in part, contradictory, and findings of credibility would be required should it be properly considered on this appeal.

7I am not satisfied that this fresh evidence is of sufficient importance to alter the conclusions of the trial judge. This evidence does not persuade me that a further consideration of the issues in this case is warranted.

8The appeal will therefore be dismissed.

9Having regard to the nature of the proceedings, there will be no costs.

The Honourable Mr. Justice Paul U. Rivard

Released: November 13, 2012

COURT FILE NO.: FS3057-12
DATE: 2012/11/13

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: PAUL GASTON JOSEPH BOYER Applicant (Respondent on Appeal) – and – COLLEEN MARGARET GRATTON Respondent (Appellant on Appeal) REASONS FOR JUDGMENT on appeal The Honourable Mr. Justice Paul U. Rivard