





CITATION:
Wenze v. De Paoli, 2011 ONCA 773



DATE: 20111208



DOCKET: C51578



COURT OF APPEAL FOR ONTARIO



Doherty and Armstrong JJ.A. and Hoy J. (
ad hoc
)



BETWEEN



Amanda Wenze



Appellant



and



Dean Louis De Paoli



Respondent



Shawn M. Philbert, for the appellant



James S.G. Macdonald, for the respondent



Heard and released orally:
November 30, 2011



On appeal from the judgment of
          Justice Gisele M. Miller of the Superior Court of Justice, dated December 30,
          2009.



ENDORSEMENT



[1]

The appellant, Amanda Wenze, and the respondent, Dean Louis De Paoli,
    are the parents of Emerson De Paoli who was born on April 29, 2007.  At the
    time of the trial in November 2009, the child was 2-1/2 years old.

[2]

The appellant and respondent never married.  They lived together from May
    2007 to October 2007.

[3]

The trial judge awarded sole custody of the child and sole
    decision-making for the child to Mr. De Paoli.  Mr. De Paoli is to consult Ms.
    Wenze concerning major decisions involving the health and schooling of the
    child.  The trial judge also ordered that each parent is to have equal time
    with the child.  The trial judge provided a detailed and elaborate access
    order.

[4]

The trial judge also made orders in respect of the financial
    arrangements between the parties concerning child and spousal support.  In
    doing so, she credited Mr. De Paoli with certain expenses paid by him related
    to the home occupied by Ms. Wenze and the child for over two years.

[5]

Ms. Wenze has appealed all aspects of the trial judgment although her
    counsel confined his argument to the issues of sole custody and what he referred
    to as occupation rent.  In support of her appeal, Ms. Wenze has made an
    application to admit fresh evidence consisting of her affidavit in respect of
    Mr. De Paolis exercise of his custodial responsibility.

[6]

We dismiss the application to admit fresh evidence as it does not
    satisfy the criteria for its admission.  The proposed fresh evidence does not
    support the contention that the custody and access order is not workable.

[7]

As to the merits of the appeal, we cannot find any error made by the
    trial judge.  There was ample evidence to support the conclusion that Mr. De
    Paoli should be granted sole custody of the child.  There was also evidence to
    support the other orders the trial judge made.

[8]

In respect of the argument of counsel concerning occupation rent we
    observe first, that the trial judge did not characterize the order as one for
    occupation rent.  Second, the credit she gave to Mr. De Paoli for the household
    expenses was fully justified on the record: see paragraphs 97 to 102 of the
    trial judges reasons.

[9]

This was a fact driven case.  The appellant seeks to retry the case in
    this court, which she is not permitted to do.  The appeal is therefore
    dismissed.

[10]

In respect of the costs award at trial, we see no basis to interfere and
    we therefore decline to grant leave to appeal.  In respect of the costs of the
    appeal, the respondent is entitled to his costs of the appeal on a partial
    indemnity scale fixed at $5,000 inclusive of disbursements and applicable
    taxes.

Doherty J.A.

Armstrong J.A.

Alexandra Hoy
ad hoc



