Angela Lucia DeSantis v. Robert George Hill, 2016 ONSC 7136
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Angela Lucia DeSantis
Applicant
– and –
Robert George Hill
Respondent
COUNSEL:
Hendrik Keesmaat, for the Applicant
Malcolm Bennett, for the Respondent
BEFORE: The Honourable Mr. Justice D.J. Gordon
Reasons for Decision
1The applicant’s motion for leave to appeal to the Divisional Court from the order granted by Braid J. on August 17, 2016 was heard in writing, pursuant to r. 62.02(2), Rules of Civil Procedure. For the brief reasons that follow, the motion is dismissed.
2This matrimonial action involves a number of claims arising from the separation of the parties, including the parenting of two children, ages 7 and 5. The case is scheduled for trial at the sittings commencing January 2, 2017.
3There have been numerous court appearances since this action was commenced on April 29, 2015. Of interest on this motion are the following orders:
i) May 29, 2015 – McLaren J. directed the respondent father shall have the children in his care on alternate weekends, every Tuesday evening and the Thursday evening prior to the applicant mother’s weekend with the children;
ii) June 19, 2015 – Arrell J., on consent, directed Lourdes Geraldo to conduct a s. 30 Children’s Law Reform Act assessment; and
iii) August 17, 2016 – Braid J., in essence, changed the order of McLaren J. above by directing the Tuesday parenting time for the respondent father to be overnight. She also awarded costs to the respondent in the amount of $13,000, inclusive of HST and disbursements.
4It is this latter order the applicant seeks to appeal. The primary complaint, as I read the factums, is with the use made of the assessor’s report by the motions judge.
5In her oral reasons, Braid J. quite properly directed herself as to the principles enunciated in s. 24(2), Children’s Law Reform Act, and s. 16(10), Divorce Act. She briefly reviewed some of the affidavit evidence presented on behalf of the parties, as well as the Custody and Access Assessment Report of Ms. Geraldo, dated March 15, 2016. Braid J. considered the case-law referred to by counsel, some being provided on this motion. She was aware of the January 2017 trial sittings for the case.
6Braid J. declined to adopt and implement the assessor’s recommendation, namely equal shared parenting, on a temporary basis as the respondent had requested. Rather, she granted additional parenting time to him as set out above, referring to same as a “transitional period”. In so doing, Braid J. made reference to the assessor’s report regarding comments made by the children, concluding “… the assessment does provide an independent report of the views of the children and provide a factual backdrop, which is helpful”.
7Section 30(9), Children’s Law Reform Act, provides that an assessment report is admissible in evidence on the application. A motions judge may consider the evidence in such a report on a motion. See, for example, Bos v. Bos, 2012 ONSC 3425.
8In result, the applicant cannot meet the test for leave to appeal as set out in r. 62.02(4)(a) or (b). Considering evidence gathered by the assessor, having regard to the best interests test, is consistent with the case-law. Further, the temporary order provides for a modest expansion of the respondent’s parenting time with the children. Hence, it is neither desirable nor does the proposed appeal involve matters of such importance that leave be granted.
9The cost award was well within the range for a long motion, particularly in this case. Costs are discretionary and I see no basis to interfere with the award.
10Leave to appeal, therefore, is denied. As leave is not granted, there is no need to address the secondary request, namely a stay of the temporary order. In result, the applicant’s motion is dismissed.
11Respondent’s counsel seeks a cost award of $5,192.35, presumably full indemnity. While there is no response to the request, in my view an award is appropriate. This matter does not warrant appellate review. Having reviewed the bill of costs, I am satisfied the time and hourly rates are reasonable. I award costs to the respondent, on a substantial indemnity basis, fixed in the amount of $4,200, inclusive of HST and disbursements, payable by the applicant within 30 days of the release of this decision.
D.J. Gordon J.
Released: November 17, 2016
CITATION: Angela Lucia DeSantis v. Robert George Hill, 2016 ONSC 7136
COURT FILE NO.: 16-0748-ML
DATE: 2016/11/17
ONTARIO
SUPERIOR COURT OF JUSTICE
Angela Lucia DeSantis
Applicant
– and –
Robert George Hill
Respondent
REASONS FOR Decision
D.J. Gordon J.
Released: November 17, 2016