Background
Anas Arabi, the applicant below and appellant on appeal, challenged an order of Justice Erika Chozik of the Superior Court of Justice dated November 13, 2024. Hadeel Al-Sahnawi was the respondent. The appeal concerned a relocation decision affecting the parties’ children and also touched on equalization, imputation of income, and costs. The Court of Appeal heard and rendered its decision orally on October 30, 2026, before Lauwers, Rahman and Brownstone JJ.A. Peter M. Callahan represented the appellant, while the respondent acted in person.
The appellate record shows that the appellant sought to have the Court of Appeal revisit the trial judge’s assessment of the evidence. His factum also referred to equalization and imputation of income, but contained no argument on those issues, and he did not pursue them in oral argument. Separately, he sought leave to appeal the costs order, arguing that there should have been no costs because the litigation concerned relocation. The court noted that he had not made that argument in his trial costs submissions, which were included in the appeal book.
The Court’s Holding
The Court of Appeal dismissed the appeal. It held that the trial judge had properly instructed herself on the legal test for relocation, carefully considered the evidence, drew conclusions that were open to her on the record, and applied the proper legal test to those conclusions. The court characterized the appellant’s request as an invitation to reweigh the evidence, which it said was not its role on appeal. It also rejected the appellant’s submission that the decision was not focused on the children’s best interests, stating that the trial judge’s decision was clearly focused on those interests.
The court found no errors of law and no palpable and overriding errors of fact in the trial judge’s decision. It further found no procedural unfairness in the conduct of the trial or in the trial judge’s management of the issues raised concerning the rule in Browne v. Dunn, (1893), 6 R. 67 (H.L.). On that basis, the court concluded that there was no reason to interfere with either the trial judge’s findings or her highly discretionary decision.
The court addressed the additional issues separately. Although equalization and imputation of income were mentioned in the appellant’s factum, they were not developed in that document or pursued orally. The court nevertheless stated its conclusion on those issues: it similarly found no basis to interfere with the trial judge’s decision. It also refused leave to appeal the costs order. In doing so, the court identified the appellant’s proposed no-costs argument and observed that he had not advanced it in his costs submissions at trial. The court did not formulate a general rule governing every argument omitted at trial. Finally, it ordered the appellant to pay the respondent appeal costs of $5,500, inclusive.
Key Takeaways
- The Court of Appeal will not reweigh the evidence merely because an appellant disputes the trial judge’s assessment; here, it found no legal error or palpable and overriding factual error.
- The relocation decision was upheld as a highly discretionary decision focused on the children’s best interests, with conclusions that were open to the trial judge on the record.
- The court found no procedural unfairness in the trial’s conduct or in the management of the Browne v. Dunn issues.
- Equalization and imputation of income were mentioned but not argued in the factum and were not pursued orally; the court found no basis to interfere on those issues.
- Leave to appeal costs was refused in the circumstances, including the appellant’s failure to make his proposed no-costs argument in his trial costs submissions. The appellant was ordered to pay $5,500 in appeal costs, inclusive.
Why It Matters
The decision illustrates the Court of Appeal’s restrained approach to reviewing a relocation determination supported by the record and decided under the correct legal test. It distinguishes disagreement with the evidentiary result from the kinds of legal, factual, or procedural errors that could justify appellate intervention. The court’s treatment of the children’s best interests and the discretionary nature of the decision underscores the importance of developing the evidentiary and legal record at trial.
The ruling also addresses distinct appellate issues without turning them into broad procedural rules. The court dealt with the undeveloped equalization and income-imputation issues by finding no basis to interfere, and it refused leave to appeal costs on the circumstances before it. Its express reference to the trial costs submissions in the appeal book makes the procedural context important, but the reasons do not establish a universal rule that every costs argument omitted at trial is automatically barred on appeal.