This decision which was released by the Ontario Court of Appeal on February 7, 2012, affirms the long standing principle that appeal judges are not trial judges and, as such, they will rarely review and weigh fresh evidence or consider it when making a determination regarding an appeal. Rather, appeal judges will defer to the evidentiary conclusions made by the trial judges, as they are generally in the best position to weigh same as they are given an opportunity to review submissions and question the parties directly.
Essentially, this case deals with an appeal brought by the Father due to his upset and dissatisfaction with paragraphs 3 and 4 of an Order from Justice Kealey dated June 9, 2010. The very stringent paragraphs provided for the following:
- The Father’s access with the child, born September 18, 1995 shall only be with her consent; and
- The Father shall not contact the child in any manner, save to respond to contact initiated by her and his response shall only be via the same medium used by the child to contact him.
The Father argued that he should be given the opportunity to initiate contact with the child and stated that the circumstances have changed since the Order was made such that it is no longer appropriate. To substantiate his claims, the Father put forward and presented to the appeal judges an affidavit with several exhibits.
The appeal judges drew issue with the provision of the affidavit and stated that they cannot act on untested material placed before them by one party to the appeal at the outset of the oral argument. Nor can they accept as accurate oral representations made by one party to the appeal in the course of the submissions. Therefore, the appeal judges stated that Justice Kealey was justified when making the Order dated June 9, 2010, and that they had no basis upon which to vary same.
The appeal judge very clearly stated that the appellate court was not the proper forum in which to evaluate and consider fresh evidence of the change in circumstances since June 9, 2010.
The appeal judges then stated that the Father’s second claim, namely that the order of June 9, 2010, was biased in favor of the mother, was completely unfounded. Rather, they affirmed that Justice Kealey reviewed and considered the child’s expressed wishes which he was entirely able to do and made an order pursuant to same.
Therefore, the appeal was dismissed and the Mother was entitled to her costs at a fixed amount of $5,000.00 inclusive of disbursements and applicable taxes.