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Family Law - Custody and access - Considerations - Expert report or assessment - Primary residence - Practice and procedure - Appeals

Thursday, September 15, 2016 @ 8:00 PM  


Appeal by the husband from a judgment in favour of the wife on the issues of custody and property equalization. The parties married in 2000 and separated in 2011. They had two children. Following a nine-day trial in 2014, the judge granted the wife primary residence with generous access for the husband, determined the husband’s child support obligation, and directed the husband to make an equalization payment totaling $43,092 in favour of the wife. The husband’s request for a constructive trust claim against the wife’s mother in respect of her interest in the matrimonial home was refused. The husband appealed the aspects of the judgment related to custody and equalization. The husband submitted that the judge wrongly disregarded an investigator’s report from the Office of the Children’s Lawyer (OCL) recommending sole custody in his favour.

HELD: Appeal dismissed. The trial judge’s decision awarding the wife primary residence was entitled to a high degree of deference. The judge gave extensive reasons for rejection of the OCL report, noting it was biased, had not been updated in the 15 months since its preparation prior to trial, and did not reflect the parenting and counselling sessions attended by the wife. The judge raised valid concerns regarding the husband’s credibility. Ample evidence from independent counsellors and social workers supported the mother’s parenting abilities. No basis for appellate interference with the custody award was established. The trial judge did not err in rejecting the husband’s claim for a constructive trust against the interest of the wife’s mother in the family home, as the mother was not a party to the proceeding and no claim was brought directly against her. No order was made affecting the mother’s ownership interest. The judge correctly concluded that the mother’s testimony at the trial was not akin to defending a claim as a party to the proceeding. The mother’s contribution to the home was validly documented and treated as a loan, and thus, only 50 per cent of the home’s value was relevant for equalization purposes.