2024 ONSC 707, 2024 ONSC 707

CITATION : McLaren v. Lavalley 2024 ONSC 707 COURT FILE NO.: DC-23-216 DATE: 2024/02/01 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT SACHS, KING and DOYLE JJ. B E T W E E N: ) ) Gordon, McLaren ) ) ) Kelly Matthew, for the Appellant ) Appellant ) ) - and - ) ) ) Christa, Lavalley ) ) ) E.Carroll & C. Wu, for the Respondent ) Respondent ) ) ) ) HEARD: January 29, 2024 SACHS J. (Orally): REASONS FOR DECISION [ 1 ] This is an appeal of the decision of D.J Gordon J. dated June 6 th , 2023.

At the end of a 5-day trial, the trial judge decided that primary care and residence of the child, DML, should be awarded to the mother. The father appeals this aspect of the decision. [ 2 ] On this appeal the father asserts that the trial judge erred in law because he failed to give appropriate or any weight to a key factor in this case namely, DML’s Indigenous cultural, linguistic, and spiritual upbringing and heritage. [ 3 ] The father concedes that the trial judge identified the correct legal principles, but argues that he did not apply them correctly. In

support of his submission, the father highlights the trial judge’s statement at paragraph 78 of his decision, i.e. that the issue of DML’s Indigenous heritage, culture and language was not a significant one. [ 4 ] If this was a case where the trial judge merely paid lip service to the principles governing Indigenous heritage, cultural, language and spirituality, but took no steps to analyze the evidence before him in light of these principles, there would be merit to the father’s position that the trial judge committed an error of the law. [ 5 ] However, the trial judge did not merely cite the applicable principles, he thoroughly examined and weighed the evidence before him in light of these principles.

Having done so, he came to the conclusion that this was a case where both parents were committed to fostering their child’s Indigenous cultural, linguistic and spiritual heritage. He also found that both parents had done so and that they were both in the position to continue to do so. [ 6 ] Thus, in effect, he concluded that in this case, this was not the decisive issue. Coming to this conclusion is not an error of law.

Further, there is no basis for concluding that the trial judge made a palpable and overriding error of fact in his assessment of the evidence before him. [ 7 ] For these reasons, the appeal is dismissed. As agreed by the parties, there will be no order as to costs. __________________________ H. E. Sachs J. I agree __________________________ G. W. King J. I agree __________________________ A. Doyle J. Date of Reasons for Judgment: January 29, 2024 Released: February 1, 2024 CITATION : McLaren v. Lavalley 2024 ONSC 707 COURT FILE NO.: DC-23-216 DATE: 2024/02/01

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: Gordon McLaren Appellant - and – Christa Lavalley Respondent ORAL REASONS FOR DECISION SACHS, KING and DOYLE JJ Released: February 1, 2024