



COURT OF APPEAL FOR ONTARIO

CITATION:
French
    v. Riley-French, 2012 ONCA 702

DATE: 20121019

DOCKET: C54859

OConnor A.C.J.O., Goudge and Juriansz JJ.A.

BETWEEN

Todd Douglas French

Applicant (Appellant)

and

Christine Carol Riley-French

Respondent (Respondent in Appeal)

John F. Black, for the applicant (appellant)

Mark S. LaFrance, for the respondent

Heard and released orally:  October 11, 2012

On appeal from the orders of Justice Stanley Kershman of
    the Superior Court of Justice, dated December 14, 2011.

ENDORSEMENT


[1]

The trial judge granted the respondent custody of the three year old
    child of the marriage.  He granted the appellant access supervised by the
    Salvation Army.  The trial judge also made a five-year restraining order
    against the appellant concerning the respondent, the child and members of the
    respondents extended family.

[2]

The appellant, who was unrepresented at trial, argues that the trial
    judge erred in refusing to adjourn the trial to enable him to properly prepare,
    produce documents and obtain witnesses.  We see no error.

[3]

The trial judge gave careful consideration to the circumstances and to
    the submissions of the parties.  The underlying application had been commenced
    over 15 months before the trial date.  The trial date had been set two months
    earlier.  The best interests of the young child were at stake.  It was
    important to bring resolution to the ongoing disputes.  The trial judges
    decision to proceed was a proper exercise of his discretion.  This court should
    not interfere.

[4]

The appellant also argues that the trial judge erred in precluding him
    from calling his treating psychiatrist at trial.  The appellants request to
    call the doctor first arose after the trial had begun.  The trial judge
    correctly pointed out that the appellant had not complied with the requirements
    of the
Family Law Rules
for calling an expert witness.  Although he
    had given a copy of the doctors report to the respondent, he had not given a
    list of her qualifications or
curriculum vitae
.

[5]

That said, even if it would have been preferable for the trial judge to
    give the appellant some leeway in this regard, we are of the view that in the
    end the evidence of the doctor, which has been filed as fresh evidence on this
    appeal, would have made no difference to the trial judges orders.

[6]

The evidence that the respondent should have sole custody of the child
    was overwhelming.  The child had been in her custody since birth, had strong
    ties to her and virtually no emotional ties to the appellant.  Attempts at
    supervised access by the appellant had failed completely.

[7]

The trial judges decision to award the appellant supervised access was
    a wise one.  The Salvation Army reports describing visits since the trial
    indicate that the relationship between the appellant and the child were very
    strained at first, but have gradually strengthened over the course of time.

[8]

At some point it may be that an application to vary the access will be
    appropriate.  On such an application, a court can consider the childs best
    interests in light of the experiences of the access visits and the appellants
    current circumstances.

[9]

Finally, we note that in making the restraining order, the trial judge
    based his decision on the numerous occasions of domestic violence.  The
    evidence that the appellant had been violent to the respondent and her family
    in the past was clear and convincing.

[10]

In
    the result, the appeal is dismissed.  We fix costs in the amount of $10,000,
    inclusive of all disbursements and applicable taxes.

Dennis OConnor
    A.C.J.O.

S.T. Goudge J.A.

R.G. Juriansz J.A.


