



COURT OF APPEAL FOR ONTARIO

CITATION: Myles v. Myles, 2019 ONCA 143

DATE: 20190222

DOCKET: C65719

Hourigan, Benotto and Huscroft JJ.A.

BETWEEN

Jennifer Kelly Nadine
    Myles

Applicant (Respondent in Appeal)

and

Jordan William Myles

Respondent (Appellant)

S. Nadine Finbow and Lindsay Hayes, for the appellant

Ross H. Thomson, for the respondent

Heard and released orally: February 20, 2019

On appeal from the
    judgment of Justice Silja Seppi of the Superior Court of Justice, dated June
    29, 2018.

REASONS FOR DECISION

[1]

The appellant father appeals from the trial judges decision allowing
    the respondent mother to move with their three children from Lions Head,
    Ontario on the Bruce Peninsula to a location closer to her employment. She does
    not seek to move further than the Bruce/Grey counties, a distance that the
    father regularly drives to and from work.

[2]

He submits that the trial judge misapprehended the evidence, failed to
    give sufficient weight to the Views of the Child Report, and came to a
    conclusion that was not in the best interests of the children. He also seeks to
    file and rely on fresh evidence which further describes the childs wishes.

[3]

We do not accept these submissions. A trial judges decision with
    respect to custody matter, including mobility, is afforded great deference by
    this court.

[4]

The appellant can point to no palpable and overriding error. The trial
    judge carefully reviewed the evidence and made conclusions supported by the
    evidence. Her conclusion that the respondent was the primary caregiver was open
    to her on the evidence.

[5]

The trial judge was careful to explain why she was not following the
    wishes of the oldest child as articulated in the Views of the Child Report. She
    correctly took them into account but as always, must base her decision on all
    of the evidence. We note parenthetically that the oldest child is now 17 years
    old and shortly will be able to determine for himself where he is going to
    live.

[6]

The appellants submission that the trial judge failed to take a full
    and sensitive inquiry of the best interests of the children is not well
    founded. On the contrary, her reasons disclose a careful analysis of the facts.

[7]

Although the respondent consents to the admission of fresh evidence, in
    our view, the facts do not satisfy the
Palmer
test as they do not bear
    on a potentially decisive issue at trial. More importantly, the appellant has
    stated that the parties are unable to agree to a motion to change on consent.
    Fresh evidence on appeal is not a substitute for a motion to change.

[8]

On this basis the appeal is dismissed. Costs of the appeal are payable to
    the respondent in the all-inclusive sum of $5,000.

C.W. Hourigan J.A.

M.L. Benotto J.A.

Grant Huscroft J.A.


