Wenze v. De Paoli

This decision, from the Ontario Court of Appeal, was released on December 12, 2011 and deals with an appeal from a trial decision of the Superior Court of Justice.

The parties in this case, who were never married but rather lived together from May 2007 to October 2007, are the parents of one child who was born in April of 2007.

The Trial Decision

At trial, the judge awarded sole custody of the child to the Respondent/Father with the caveat that he was to consult with the Applicant/Mother prior to making any major decisions involving the health and schooling of the child.

The judge then ordered that each parent was to have equal time with the child pursuant to a detailed and elaborate access order that she had created for them.

Lastly, the judge made orders for the support of both the child and the Applicant/Mother. However, when making said orders, she credited the Respondent/Father’s obligations with certain expenses paid by him and relating to the home which, at the time, had been occupied by the Applicant/Mother and the child for over two (2) years.The Appeal

Dissatisfied with the above mentioned order, the Applicant/Mother appealed the trial judgement and her lawyer addressed the issues of occupation rent, sole custody, and an application to admit fresh evidence consisting of the Applicant/Mother’s affidavit in respect of the Respondent/Father’s exercise of his custodial responsibility.

The Applicant/Mother’s appeal was dismissed entirely for the following reasons:

  • The order crediting the Respondent/Father for contributions he had made to the house and various household expenses was fully justified and, despite the claim made by the Applicant/Mother, it was not an order for occupation rent;
  • The trial judge did not err when making the order for custody as there was ample evidence to support her conclusions; and
  • The application to admit fresh evidence did not satisfy the necessary and requisite criteria as the proposed evidence does not support the contention that the custody and access order is not workable.

The justices on appeal further stated that the Applicant/Mother’s appeal was an attempt to retry the case, which she was not permitted to do. As such, the appeal was dismissed.

With regard to the costs of the appeal, the Respondent/Father was awarded costs on a partial indemnity scale fixed at $5,000.00 inclusive of disbursements and applicable taxes.

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