



COURT OF APPEAL FOR ONTARIO

CITATION: Artichuk-Murphy v. Murphy, 2019 ONCA 921

DATE: 20191122

DOCKET: C67358

Simmons, Huscroft and Nordheimer JJ.A.

BETWEEN

Louise Artichuk-Murphy

Applicant (Appellant)

and

Tyler Murphy

Respondent (Respondent)

Julie Stanchieri and Rachel Healey, for the appellant

Tyler Murphy acting in person

Heard and released orally: November 20, 2019

On appeal from the order of Justice Alan P. Ingram dated
    April 23, 2018 with reasons reported at 2018 ONSC 1330.

REASONS FOR DECISION

[1]

Ms. Artichuk-Murphy appeals from the order of the trial judge that addressed
    various issues arising from the marriage breakdown. Specifically, the appellant
    appeals from the trial judges award of sole custody of their daughter to the
    respondent and from the trial judges adjustment to the payment, by the
    respondent, of certain s. 7 expenses.

[2]

There are two children of the marriage. One is the older son, who is not
    the biological son of the respondent, but was adopted by the respondent shortly
    after the marriage. The other is the younger daughter for whom the respondent
    is the biological father.

[3]

The trial judge heard this matter in what is described as three phases
    over a number of months. As the trial judge observed in his reasons This
    relatively simple case unnecessarily ended in a trial that started two years
    after the separation and has taken more than two years to complete.

[4]

The trial judge heard considerable evidence on the issue of the custody
    of the two children. While the respondent sought custody of both, as did the
    appellant, the trial judge noted that the respondent became resigned to the
    fact that the son would remain with the appellant for a variety of reasons.

[5]

With respect to the daughter, the trial judge concluded that it would be
    in her best interests to reside with the respondent in Nova Scotia where the
    respondent now resides. The trial judge gave a number of reasons for this
    conclusion including the fact that both sets of grandparents lived in Nova
    Scotia; the daughter wished to reside with the respondent; that the report of
    the Office of the Childrens Lawyer recommended this result and that the
    appellant was more engaged with her sons hockey career than she was in the
    interests of her daughter. The trial judge also found that the conduct of the
    appellant, including making false allegations against the respondent, was
    problematic.

[6]

The appellant contends that the trial judge erred in not applying the
    test set out in
Gordon v. Goertz
, [1996] 2 S.C.R. 27 before deciding
    to remove the daughter from Ontario and transfer her to reside in Nova Scotia.
    We do not agree with this submission. First it is not clear that the factors in
Gordon v. Goertz
should be strictly applied because this was an
    originating process as opposed to a motion to vary. Second, and in any event, the
    trial judge considered all of the factors that he ought to have considered
    before reaching the conclusion that he did. He gave thorough reasons for his
    conclusions. Most importantly, his decision was premised on what was in the
    best interests of the child which is, ultimately, the determining factor. As
    the decision in
Gordon v. Goertz
points out, at para. 50:

The ultimate question in every case is this: what is in the
    best interests of the child in all the circumstances, old as well as new?

[7]

The appellant contends that the trial judge erred in relying on the opinion
    evidence of the investigator from the Office of the Childrens Lawyer as it
    was not proffered as expert evidence on the subject of alienation. This court
    has already held that expert evidence is not required in this regard: see
A.M.
    v. C.H
.
, 2019 ONCA 764 at paras. 31-39. Rather, the evidence of the
    investigator was of her factual observations which the trial judge was entitled
    to take into account in reaching his conclusions.

[8]

The appellant also complains that the trial judge limited the
    respondents contribution to the hockey expenses of the son in exchange for
    requiring the respondent to contribute to the travel costs associated with
    providing access to the daughter for the appellant. In our view, it was open to
    the trial judge to balance these competing considerations in reaching the
    result that he did.

[9]

Finally, the appellant seeks to have this court admit fresh evidence
    regarding certain problems that she says have arisen since the trial judgment.
    In particular, she complains about access problems with her daughter and the
    respondents failure to pay the support that he is supposed to pay.

[10]

In bringing this motion, the appellant misunderstands what is properly
    fresh evidence and misapplies the test for its admission as established in
R.
    v. Palmer
,
[1980] 1 S.C.R. 759. The fresh evidence could not have
    effected the result of the order that is under appeal. The fresh evidence, at
    best, might provide the appellant with the opportunity to seek a variation of
    the order but it does not impact on an appeal of that order. In making that
    observation, we are fully conscious that all parties who are the subject of a
    court order are expected to fully comply with its terms.

[11]

The appeal is dismissed as is the motion to admit fresh evidence. The
    respondent does not seek costs and none are ordered.

Janet Simmons J.A.

Grant Huscroft J.A.

I.V.B. Nordheimer J.A.


