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Family - Decision-Making (aka Custody). Agboola v. Unoh [SOR]
In Agboola v. Unoh (Div Court, 2024) the Ontario Divisional Court considered family law SORs (deference) for custody (decision-making) and for access (parenting):[17] In Hickey v. Hickey, 1999 CanLII 691 (SCC), [1999] 2 S.C.R. 518, L’Heureux-Dubé J. said, at para. 10:[Trial judges] must balance the objectives and factors set out in the Divorce Act or in provincial support statutes with an appreciation of the particular facts of the case. It is a difficult but important determination, which is critical to the lives of the parties and to their children. Because of its fact-based and discretionary nature, trial judges must be given considerable deference by appellate courts when such decisions are reviewed. [Emphasis added.] [18] Although Hickey was a case dealing with support orders, the principle is equally applicable to custody and access orders: Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014, at para. 12. The reason is articulated by Bastarache J. in Van de Perre, at para. 13:As I have stated, the Court of Appeal was incorrect to imply that Hickey, supra, and the narrow scope of appellate review it advocates are not applicable to custodial determinations where the best interests of the child come into play. Its reasoning cannot be accepted. First, finality is not merely a social interest; rather, it is particularly important for the parties and children involved in custodial disputes. A child should not be unsure of his or her home for four years, as in this case. Finality is a significant consideration in child custody cases, maybe more so than in support cases, and reinforces deference to the trial judge’s decision. Second, an appellate court may only intervene in the decision of a trial judge if he or she erred in law or made a material error in the appreciation of the facts. Custody and access decisions are inherently exercises in discretion. Case-by-case consideration of the unique circumstances of each child is the hallmark of the process. This discretion vested in the trial judge enables a balanced evaluation of the best interests of the child and permits courts to respond to the spectrum of factors which can both positively and negatively affect a child. ....
[31] In T.J.L. v. E.B., 2021 ONCA 75, the appellant challenged the trial judge’s findings of fact that underpinned his decision. At para. 5, the court said:It is the trial judge’s task, and not this court’s role, to assess and weigh the evidence and make findings of fact and credibility. In child custody cases, the trial judge’s findings are subject to considerable deference on appeal, and intervention is only warranted when there is a material error, a serious misapprehension of the evidence, or an error in law: Van de Perre v. Edwards, 2001 SCC 60, [2001] 2 S.C.R. 1014, at paras. 11, 13; Perron v. Perron, 2012 ONCA 811, 113 O.R. (3d) 600, at para. 25, leave to appeal refused, [2013] S.C.C.A. No. 26. The appellant has not pointed to any such error or serious misapprehension of the evidence that would permit this court to intervene. [32] I reach the same conclusion in this case. The trial judge extensively reviewed the history of the parties’ relationship with emphasis on their parenting. He reviewed evidence of domestic violence on the part of both parties, setting out the differing versions of events. He reviewed the evidence on the parties’ various changes in residence over the years focusing on the impact to the child. He reviewed the history of proceedings between the parties including the Hague application and proceedings commenced by the appellant in the United States. He reviewed the communications between the parties and found Dr. Unoh’s communication to be dismissive and insensitive. . Agboola v. Unoh
In Agboola v. Unoh (Div Court, 2024) the Ontario Divisional Court notes new terms for custody and access:[1] The appellant, Mr. Agboola, and the respondent, Dr. Unoh, have a child, Zoe Joy Agboola, born October 1, 2014. The parties have engaged in a lengthy course of litigation involving custody (now decision making) and access (now parenting time) for Zoe. On June 27, 2019, after a 14-day trial, Turnbull J. released his reasons for judgment providing that Dr. Unoh have sole custody and Mr. Agboola have access two weekends per month, virtual access three times per week and specified holiday access.
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