Johnson v. Cleroux, 2002 CanLII 37304 (ON CA)

DATE: 20020313 DOCKET: C36949

COURT OF APPEAL FOR ONTARIO

ROSENBERG, FELDMAN JJ.A. AND GILLESE J. (Ad hoc)

B E T W E E N :

MARLENE JOHNSON

H. Hunter Philips for the appellant

Appellant

• and -

PIERRE CLEROUX

Katherine L. Shadbolt for the Respondent

Respondent

Heard: February 25, 2002

On appeal from the order of Justice Roydon J. Kealey dated August 21, 2001.

GILLESE J. (Ad hoc):

1The appellant mother asks this court to overturn the decision of the motions judge in which he denied her request to move from Ottawa to Oakville with her five year old daughter, Sydney.

2The reasons given by the motions judge are brief. He indicates that he read Dr. McLean’s report and notes that in addition to disruption of the child’s relationship with her father, there would be an impact on her association with grandparents and extended family and a limit of her exposure to the Francophone culture.

3An appellate court is to give substantial deference to decisions of trial judges in matters of custody and access. (Van de Perre v. Edwards 2001 SCC 60)

4In determining the best interests of the child, a judge is to consider the factors set out in s. 24 of the Children’s Law Reform Act and enunciated in Gordon v. Goertz (1996), 19 R.F.L. (4th) 177 (S.C.C.). The fresh evidence the appellant sought to tender before the motions judge related to events that occurred after Dr. McLean’s report and was directly relevant to a determination of the child’s best interests. In my view, the motions judge erred in refusing to permit the mother’s counsel the opportunity to introduce that evidence.

5The fresh evidence included the fact that the mother was pregnant and the impact of the pregnancy on the family unit. As a result of the pregnancy, the mother and her husband had decided that he could not afford to leave his secure and well paying employment in Oakville to move to Ottawa where he was without employment and where there were no realistic prospects for employment at a commensurate level.

6As a result, after the baby was born, the mother would have to reside in Ottawa with Sydney and the baby and travel to Oakville on weekends. Instead of living together as a family in their 4 bedroom Oakville home that has a separate bedroom and backyard for Sydney, the mother would have to live with her mother and brother in a townhouse owned by her mother. She, Sydney and the baby would have to share a single bedroom. That same room would be shared with her husband when he commuted to Ottawa in order to spend time with his wife, Sydney and his new child.

7If the mother is required to stay in Ottawa, she will have to obtain full time employment there which would have the effect of reducing the amount of time that she would have to spend with Sydney and her new child. If permitted to move to Oakville, the mother can maintain the job she now has in Toronto as an independent sales agent. This position has flexible work hours and enables the mother to work from the Oakville home, making it possible for the mother to take Sydney to school and be home for Sydney after school. The requirement to stay in Ottawa would necessitate third party care for Sydney after school. As Sydney will go to school on a full time basis in the fall, this would significantly reduce the amount of time that the mother could spend with Sydney.

8Each of these factors is relevant to a determination of Sydney’s best interests especially in light of these facts: Sydney has resided with her mother since birth; by virtue of the consent judgment of Sirois J. dated October 26, 1999, the mother was declared to be the legal custodial parent although she was required to consult with the father on important decisions relating to Sydney’s life; and, Dr. McLean’s report acknowledges that Sydney’s primary attachment is to her mother and that Sydney would benefit from continuing to have her main home base with the mother.

9I did not consider the proposed new evidence of Dr. Dimock.

10The motions judge also refused the request of counsel for the mother to be permitted to cross-examine Dr. McLean. The court of its own volition had required that a professional assessment be completed. Given the wording of s. 30(10) of the Children’s Law Reform Act, it is my view that he was in error in refusing to require Dr. McLean to attend as a witness at the hearing. Had he done so, the trial judge would have had the benefit of Dr. McLean’s opinion on the changed circumstances. Because the respondent refused to consent, Dr. McLean was unable to submit an updated report in these matters.

11I am also of the view that the motions judge erred in delegating his determination of the issue by adopting the views of the third party professional who prepared the assessment without consideration of the Gordon v. Goertz factors. See Strobridge v. Strobridge (1994), 4 R.F.L. (4th) 169 (Ont. C.A.).

12I acknowledge that Sydney has had the benefit of a close and loving relationship with her father and that the father is anxious to play a continuing and active role in his daughter’s upbringing but, for the reasons given, allow the appeal.

13Accordingly, the appeal is allowed and the order of Kealey J. is set aside. The appellant shall be the legal custodial parent of Sydney Johnson and she will primarily reside with the appellant. The appellant shall consult with the respondent on all important decisions relating to the child’s life. The respondent shall have generous access. If the parties are unable to agree on an access schedule, either party may move before the Superior Court of Justice for determination of that issue.

14If the parties are unable to agree on costs, they may make written submissions on the same within 30 days of the release of this endorsement.

“E.E. Gillese J. (Ad hoc)