



COURT OF APPEAL FOR ONTARIO

CITATION:  Elaziz v. Wahba, 2017 ONCA 58

DATE: 20170123

DOCKET: C62385

Simmons, Brown and Roberts JJ.A.

BETWEEN

Tarek Mohammed Tawfik Abd Elaziz

Appellant (Respondent)

and

Heba Wahba

Respondent on Appeal (Applicant)

David Sherr, for the appellant

Mark Trenholme, for the respondent

Heard: January 18, 2017

On appeal from the order of Justice Irving André of the
    Superior Court of Justice dated June 10, 2016.

ENDORSEMENT

[1]

The issue on appeal concerns a change order for access to a seven-year-old
    child.

[2]

The original order for access was made on February 28, 2014 following a
    two-day trial.  A change order was made on June 10, 2016 under which the motion
    judge permitted enhanced overnight access to the father largely to respond to
    some issues the child was having concerning evening change-overs of childcare
    responsibilities as between parents.

[3]

As a matter of common sense, change-overs proceed more smoothly if they
    do not occur at the childs bedtime but rather occur in neutral territory at
    the commencement of the school day.

[4]

The appellant argues that in crafting his decision, the motion judge
    originally provided for Monday and Thursday overnights with the father in
    alternate weeks  but then, in response to a concern expressed by the mother,
    changed his endorsement so that the father would have overnight access on
    Thursdays only in alternate weeks.  The concern expressed by the mother was that
    the revised schedule would amount to shared custody for child support purposes which
    would create issues concerning child support.

[5]

The appellant argues that the trial judge erred in principle in revising
    his endorsement to limit the fathers alternate week access to Thursday
    overnights only, based on a factor unrelated to the best interests of the child
     namely the impact of the change on the child support regime.

[6]

We would not accept this submission.  The trial judge made a change
    order to respond to the fathers concerns about the childs reaction to evening
    change-overs.  Upon hearing the wifes objection to his originally crafted
    order, the motion judge deleted Monday overnight access in alternate weeks.

[7]

In our view, it is apparent that the motion judges intention was to
    respond to the presenting issue of evening change-overs.  It was not his
    intention to change the overall access scheme of joint custody  but not shared
    parenting  which was crafted following a two-day trial.

[8]

We see no error in his revised endorsement.  We observe that the order
    as finalized provided for enhanced access to the father.

[9]

We see no basis on which to interfere with any other aspect of the
    motion judges order.

[10]

The appeal is therefore dismissed.  Costs of the appeal are to the
    respondent on a partial indemnity scale fixed in the amount of $1,000 inclusive
    of applicable taxes and disbursements.

Janet Simmons J.A.

David Brown J.A.

L.B. Roberts J.A.


