Kasirer J.: “The dispute regarding the custody of the parties’ two children involved in this appeal turns on a proper appreciation of their best interest. When leave to appeal was granted, among the matters in dispute was whether the parties’ 16-year-old daughter and their 10-year-old son should live principally with the appellant in Ottawa or with the respondent in Niagara. On October 6, 2021 — one week before this hearing —, the parties wrote a joint letter to the Registrar to advise the Court of what they described as “changes with respect to the children that affect the record in this matter”. These included a statement that the parties’ daughter has resided in Ottawa for over a year and that, given her age, the respondent does not intend to take further steps to enforce the trial judge’s order regarding that child. We note further that the parties have not filed a motion for new evidence before this Court regarding the current best interests of the children. In the unusual circumstances of this appeal, and given the state of the record which the parties acknowledge as incomplete, we are of the unanimous view that the appeal should be dismissed, without costs before this Court. The appropriate forum for identifying and resolving whatever ongoing dispute may subsist between the parties is the Superior Court where, should the legal requirements be met, a variation order relating to custody and access could be sought. Given the tenor of the parties’ joint letter and the state of the record, we are unable to provide meaningful guidance on the best interests of the children in the circumstances. In the result, the appeal is dismissed, without costs before this Court.” — Supreme Advocacy acted as agent for the Respondent.
Read the lower court decision from the ONCA here.